Jacob and Rache Gutwein Appeal from an Order of the United States District Court for the Eastern District of New York (Eugene H. Nickerson, Judge) Granting Summary Judgment and Dismissing Their Product Liability Claim. Reversed and Remanded.
Friendly and Winter, Circuit Judges, and Lasker, Senior District Judge.*fn*
Jacob and Rachel Gutwein*fn1 appeal from a grant of summary judgment on their claim that a drug manufactured and distributed by the defendants caused Mr. Gutwein's blindness. Because the Gutweins were not afforded the ten-day notice period required by Rule 56(c), Fed. R. Civ. P., before the district court granted summary judgment, we reverse and remand.
In late 1977, Mr. Gutwein returned to the United States after a stay in Venezuela with a urinary tract infection which he had been self-treating with an antibiotic. He had also been taking an outdated prescription for an antimalarial drug. Mr. Gutwein consulted a urologist, Dr. Armando Del Rio, who treated him with an injection of tetracycline, an antibiotic, and gave him two prescriptions, one for a painkiller and the other for Bactrim, a drug commonly used in the treatment of urinary tract infections. Bactrim, which is manufactured and distributed by the defendant-appellee Roche Laboratories ("Roche"), is composed of two compounds, trimethoprim, an antibiotic, and sulfamethoxazole, a bacteriostatic sulfonamide used in the treatment of urinary tract infections.
Mr. Gutwein filled the prescriptions on December 7, 1977 and ingested the painkiller and the Bactrim as prescribed until December 9, 1977, when he noted visual changes in his left eye. The next day he consulted an opthalmologist who diagnosed his condition as optic neuritis, an inflammation of the optic nerve. When Mr. Gutwein began to experience visual changes in his right eye as well, he was hospitalized at Lenox Hill Hospital where his vision continued to deteriorate bilaterally. Eventually he lost most of his sight.
Two consulting physicians at Lenox Hill, Drs. Cahill and Bloch, wrote in the hospital record that Gutwein's loss of vision had a probable toxi etiology. None of the treating or consulting physicians specifically attributed Gutwein's optic neuritis to his ingestion of Bactrim. His recent exposure to that drug, however, as well as exposure to the outdated antimalerial drug, to a chemical used to clean up bat guano, and possibly to methyl alcohol -- all known or probable causes of blindness -- was noted in the hospital record. The record also indicated an intent to make further inquiry into these and other possible causes of blindness.
After discharge from the hospital, Mr. Gutwein was seen twice by a neuro-ophthalmologist, Dr. Smith, who testified in a deposition that his primary impression was that Mr. Gutwein's optic neuritis was caused by an acute infection and that a toxic reaction was a "less likely explanation." Dr. Smith opined that of the "hundreds" of cases of optic neuritis that he had seen in his career, 50% were of unknown or undetermined etiology.
Mr. Gutwein filed the instant lawsuit against Roche in November, 1980, alleging, inter alia, that the sulfa-methoxazole component in Bactrim had caused his optic neuritis and that Roche had failed adequately to warn of the risks associated with use of the drug.
Over the next three years, the parties engaged in desultory pretrial discovery under the supervision of Magistrate Chrein. On April 6, 1983 Roche began deposing Mr. Gutwein's designated expert on causation, one Phyllis Kaplan, a toxiologist. After the first day, Ms. Kaplan refused to continue the deposition until she was compensated for services rendered to date. Mr. Gutwein was unable to come to a satisfactory arrangement with her or to comply with the Magistrate's order to produce her for further deposition by Roche. The Magistrate then recommended to the district judge that Ms. Kaplan be precluded from testifying at the trial, which was scheduled for September 12, 1983. Although Mr. Gutwein's counsel was still hopeful that the problem of compensating Ms. Kaplan would be resolved prior to trial, she was not listed as a witness in the pretrial order which was filed September 2, 1983.
On September 7, five days before the trial was scheduled to commence, Mr. Gutwein's counsel received a copy of Roche's motion for summary judgment, postmarked September 6, 1983, with a return date of September 12, 1983. This motion was filed by Roche only after learning of Ms. Kaplan's unavailability. In supporting papers, Roche contended that there was no material issue of fact, since (1) there was no evidence that Roche knew or should have known of any danger of optic neuritis inherent in the use of Bactrim which would have triggered a duty to warn; (2) there was no evidence that ingestion of Bactrim had caused Mr. Gutwein's optic neuritis; and (3) the urologist would not have alerted Mr. Gutwein to the danger of optic neuritis even if Roche had issued a warning.
Mr. Gutwein argued in opposition that there were contested issues of material fact, namely: (1) whether optic neuritis was a potential side effect of Bactrim; (2) whether Bactrim caused Mr. Gutwein's optic neuritis; and (3) whether the urologist would have warned Mr. Gutwein of the danger of optic neuritis had Roche informed the physician that the condition was a potential side effect of Bactrim.
As supporting exhibits Mr. Gutwein submitted medical literature describing cases of optic neuritis occurring after use of certain sulfonamide drugs (neither sulfomethoxazole nor Bactrim is specifically mentioned in the articles), Lenox Hill Hospital records suggesting a tosix etiology for Mr. Gutwein's optic neuritis, and various deposition transcripts. In opposing the motion for summary judgment, Mr. Gutwein's counsel also argued that, because the defendant's motion did not give the ten days notice required by Rule 56(c), Fed. ...