SMITH
v.
BRISTOL-MYERS SQUIBB COMPANY
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The Court adopted the Magistrate Judge's Report and Recommendation, finding that a triable issue exists regarding proximate causation on the failure-to-warn claim and that defendants failed to meet their summary judgment burden on remaining claims.
Plaintiff Tomela Sue Smith brought claims against defendants regarding Abilify. The Magistrate Judge issued a Report and Recommendation concerning def…
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This matter is before the Court on the Magistrate Judge’s Report and Recommendation dated December 28, 2020. See ECF No. 35. The parties have been furnished a copy of the Report and Recommendation and afforded an opportunity to file objections pursuant to 18 U.S.C. § 636(b)(1). No objections were filed. On de novo review, the Court has determined that the Magistrate Judge’s findings and recommendations are well-supported by the record and by proper analysis. More specifically, the testimony of Plaintiff Tomela Sue Smith and her health care provider is more than sufficient to create a triable issue as to whether Utah’s learned intermediary rule precludes a finding of proximate causation on Smith’s failure-to-warn claim. Regarding Smith’s remaining claims, the Court agrees with the Magistrate Judge that Defendants’ “punch list” of “bald assertions” that Smith has failed to produce evidence in support of her claims or that she will not prevail at trial does not satisfy their summary judgment burden of pointing to “specific portions of the record” that demonstrate “an absence of evidence” supporting Smith’s theories of liability. See ECF No. 35 at 13 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) and United States v. Four Parcels of Real Prop.
in Green and Tuscaloosa Counties in the State of Ala., 941 F. 2d 1428, 1438 n.19 (11th Cir. 1991)). Accordingly:
1. The Magistrate Judge’s Report and Recommendation, ECF No. 35, is ADOPTED and INCORPORATED BY REFERENCE in this Order. 2. Defendants’ Motion for Summary Judgment, ECF No. 25, is DENIED.
SO ORDERED, on this 12th day of January, 2021.
M. Casey Rodgers
M. CASEY RODGERS
UNITED STATES DISTRICT JUDGE
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Citator
Authorities Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986)
- United States v. Four Parcels OF Real Prop. IN Greene & Tuscaloosa Cntys. IN THE State OF Ala., 941 F.2d 1428 (11th Cir. 1991)