SMITH v. BRISTOL-MYERS SQUIBB COMPANY

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE: ABILIFY (ARIPIPRAZOLE) Case No. 3:16md2734

PRODUCTS LIABILITY LITIGATION

This Document Relates to: Judge M. Casey Rodgers Tomela Sue Smith, 3:17cv474 Magistrate Judge Gary Jones _________________________________/

ORDER

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