F. Autery v. GlaxoSmithKline, L.L.C. , 496 F. App'x 388 ( 2012 )

Case: 11-30589 Document: 00512043408 Page: 1 Date Filed: 11/05/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 5, 2012
No. 11-30589 Lyle W. Cayce
Summary Calendar Clerk
F. PAUL AUTERY,
Plaintiff - Appellant,
v.
GLAXOSMITHKLINE, L.L.C.,
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:05-CV-982
Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
After six years of litigation in the district court, summary judgment was
granted against F. Paul Autery (“Autery”) in his wrongful death case against
GlaxoSmithKline, L.L.C. (“GSK”) for the tragic suicide death of his young son
allegedly caused by the son’s discontinuation of Paxil, an anti-depressant
manufactured by GSK. We AFFIRM.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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The magistrate judge’s order, which was adopted by the district court,
chronicles well the long and somewhat cumbersome history of this case. We
summarize very briefly.
A pediatrician prescribed Paxil to Autery’s fifteen-year old son, Chris, who
took it on and off for over a year without incident. Thereafter, Autery was
arrested for aggravated assault of their six-year old neighbor. A few months
later, Chris stopped taking Paxil. Seven days later, he committed suicide.
Autery contends that the abrupt discontinuation of the Paxil caused Chris to
commit suicide and that GSK failed to adequately warn of this danger.
Autery filed this case in mid-2005. For the next six years, both the
magistrate judge and the district judge took an active role in overseeing this
litigation. Of particular note is that the district court appointed counsel for
Autery, who was acting pro se from prison after his conviction on the assault
charges, to assist him in responding to GSK’s motion for summary judgment.
Throughout this lengthy period, discovery motions were filed and determined,
and Autery received at least one continuance of the pre-trial order. Ultimately,
the district court denied Autery’s request for more discovery and concluded that,
without an expert, Autery would be unable to prove causation.
The parties agree that Louisiana law applies to this diversity case.
Louisiana law requires that a plaintiff suing under a products liability theory
prove causation. See, e.g., Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 260-61
(5th Cir. 2002). “Causation” in a pharmaceutical liability case involves both
“general causation” and “specific causation.” Wells v. Smithkline Beecham Corp.,
601 F.3d 375, 377-78 (5th Cir. 2010). “General causation is whether a substance
is capable of causing a particular injury or condition in the general population,
while specific causation is whether a substance caused a particular individual’s
injury.” Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir. 2007)
(citation and quotation marks omitted). Here, the district court concluded that
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even if Autery could prove general causation, i.e., that abrupt discontinuation
of Paxil causes suicide, he could not substantiate a claim of specific causation,
i.e., that Paxil (or a failure to warn of danger associated with withdrawal from
Paxil) caused Chris’s death.
The record reveals that Chris’s doctor, Dr. Atwi, indicated that it appeared
that Paxil was well-tolerated by Chris. Dr. Atwi testified that he discussed the
warnings he was receiving regarding potential increased suicide ideation in
adolescents taking Paxil with Chris’s mother who decided to keep him on Paxil
because it appeared to be working. In the evidence before the district court,
neither Dr. Atwi, the prescribing physician, nor Cindy Hayes, Chris’s treating
psychologist, testified that Paxil, a lack of warnings, or Paxil’s discontinuation
caused or contributed to Chris’s death. Despite knowing that he would have to
have expert testimony to support his theory of GSK’s liability for Chris’s death,
Autery never retained or identified a medical causation expert or proffered any
expert testimony supporting specific causation to the district court.
On appeal, Autery raises four issues: (1) whether the district court erred
in refusing to grant an extension of time to file “a memorandum and supporting
documents” objecting to the magistrate judge’s recommendation that summary
judgment be granted; (2) whether summary judgment was improperly granted
before discovery could be completed; (3) whether the district court erred in
failing to grant a continuance of the expert report deadline or a reset of the
scheduling order; and (4) whether due process was violated when the district
court “preemptively den[ied a] court-appointed expert when expert testimony is
an essential element in this case?” Autery does not directly challenge the grant
of summary judgment or support an argument that he met his summary
judgment burden to provide some expert evidence in support of specific
causation.
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The first three issues all fall under a category of requesting additional
time for briefing and discovery. We review a district court’s decisions on such
matters under an abuse of discretion standard. See, e.g., Transamerica Ins. Co.
v. Avenell, 66 F.3d 715, 721 (5th Cir. 1995). Autery fails to point to any
discovery from GSK that would have assisted him in proving specific causation.
Nor do we see anything that additional time would do to cause Autery to procure
an expert that did not occur in the six years this matter was pending in the
district court. There may be cases where unreasonably short deadlines prevent
adequate discovery and obtaining of evidence; this case is not one of them—far
from it. We conclude that the district court did not abuse its discretion in
denying the various extensions Autery references, and we resolve the first three
issues against him.
In his final issue, Autery seeks for the first time on appeal to raise a
constitutional due process argument to the effect, apparently, that a district
court is required sua sponte to appoint (and use government funds to pay for) an
expert for a plaintiff in an ordinary civil tort lawsuit. At best for Autery, plain
error review would apply to this unpreserved argument. See Crawford v. Falcon
Drilling Co., 131 F.3d 1120, 1123 (5th Cir. 1997) (applying plain-error review to
unpreserved error in a civil case). He points to no case providing for such a
“right to experts” in a case like this one.1 As such, any imagined error could not
conceivably be called “plain.” We resolve the fourth issue against Autery.
We recognize the difficulty of a grieving father’s quest to find answers to
the cause of a tragic circumstance while incarcerated. However, the
1
Autery cites an Eighth Circuit case to support his argument that he is entitled to the
appointment of an expert. Smith v. Jenkins, 919 F.2d 90 (8th Cir. 1990). That case addressed
the possibility of appointing experts under Federal Rule of Evidence 706 in a case where an
inmate claimed a violation of his Eighth Amendment rights due to deliberately indifferent
medical care. Id. at 92. The case falls far short of suggesting that appointment of experts is
required sua sponte in a non-civil rights tort suit such as this one.
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commendable and thorough efforts of the magistrate and district judges gave
Autery a full opportunity to respond appropriately to GSK’s summary judgment,
yet he failed to do so.
AFFIRMED.
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