May 31, 2017 Practice Points

Fourth Circuit Affirms Summary Judgment Based on Evidentiary Oversight

By Joe Winebrenner

To defeat a motion for summary judgment, a plaintiff must specifically cite to record evidence that demonstrates there are genuine disputes of material fact warranting a trial. Fed. R. Civ. P. 56(c). The failure to specifically cite such evidence—even if it exists and even if it is otherwise before the court—can be fatal to a plaintiff’s claims. A recent Fourth Circuit opinion confirms this rule applies in individual mass tort lawsuits, just as it does in other litigation. See Carlson v. Boston Scientific Corp., No. 15-2440, 2017 U.S. App. LEXIS 8227 (4th Cir. May 9, 2017).

In Carlson, the plaintiff was one of tens of thousands of plaintiffs alleging personal injuries as a result of her implantation with and use of transvaginal mesh products. She filed a host of claims against the defendant, including a failure-to-warn claim based on certain alleged risks associated with the defendant’s product. Plaintiff claimed that if the defendant had provided adequate warnings of those risks, she would not have agreed to receive the product and would have avoided her injuries.

In responding to the defendant’s motion for summary judgment, the plaintiff set forth and specifically cited to evidence attempting to support her contentions that the defendant’s warnings were inadequate, and that the plaintiff would not have agreed to receive the defendant’s product had she known of the alleged risks. However, the plaintiff did not cite to any evidence demonstrating that her prescribing physician had read or relied upon the defendant’s warnings prior to implanting the product into the plaintiff—thus, the district court observed, the plaintiff “could not prove that any alterations to [the defendant’s] warnings could have impacted [the prescriber’s] course of treatment.” 2017 U.S. App. LEXIS 8227, at *3. After the district court granted summary judgment on the failure-to-warn claim on these grounds, the plaintiff moved for reconsideration, and produced excerpts from the deposition transcript of the prescriber—which plaintiff failed to previously cite during summary judgment briefing—demonstrating that the doctor in fact had previously read the defendant’s warnings. Based on this “new” evidence, the plaintiff argued, a genuine issue of fact existed as to proximate causation and summary judgment was improper. The district court denied the motion to reconsider.

After the trial of plaintiff’s remaining claims resulted in a defense verdict, the plaintiff appealed the district court’s summary judgment ruling and denial of reconsideration, contending her failure-to-warn claim was wrongfully dismissed. The Fourth Circuit affirmed. On the summary judgment ruling, the Fourth Circuit concluded the plaintiff had “woefully failed to meet her burden of production,” given that she cited to no evidence in her summary judgment briefing to establish that her prescribing physician would have read the warnings that she alleged should have been given. And the court declined to consider any newly cited excerpts from the prescriber’s deposition, holding that Federal Rule of Civil Procedure 56(c) required parties “to cite all evidence in support of their positions at summary judgment, thus permitting a district court to limit its review to such cited materials.” 2017 U.S. App. LEXIS 8227, at *7. “The responsibility to comb through the record in search of facts relevant to summary judgment falls on the parties—not the court. We therefore affirm the MDL court’s partial summary judgment award.” Id. The Fourth Circuit likewise affirmed the district court’s denial of reconsideration, noting that “[w]e have consistently affirmed denials of motions to reconsider summary judgment ruling where the motion is merely a vessel for the very evidence that was initially lacking in opposition to summary judgment.” Id. at *10.

The Carlson decision offers a lesson regarding the strictness of the federal rules on summary judgment, the significant consequences that can result when parties fail to heed those rules, and the fact that mass tort litigants are not exempt from their strict enforcement. While the challenges of prosecuting and defending mass torts are great, and often require streamlined processes to achieve efficient results, summary judgment is not the stage to focus on stream-lined efficiencies at the expense of attention to detail. To be successful, plaintiff and defense practitioners alike must work up and pursue summary judgment on their individual mass tort cases with the same level of rigor they would devote to any other significant piece of litigation.

Joe Winebrenner is a partner with Faegre Baker Daniels in Minneapolis, Minnesota.


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