11-4721
McClamrock v. Eli Lilly and Co.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held
2 at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
3 New York, on the 29th day of November, two thousand twelve.
4
5 PRESENT:
6 JOHN M. WALKER, Jr.,
7 RICHARD C. WESLEY,
8 PETER W. HALL,
9 Circuit Judges.
10 _____________________________________
11
12 Barry Kenneth McClamrock,
13
14 Plaintiff-Appellant,
15
16 v. 11-4721
17
18 Eli Lilly and Company,
19
20 Defendant-Appellee.
21 _____________________________________
22
23
24 FOR PLAINTIFF-APPELLANT: Barry McClamrock, pro se,
25 Concord, NC.
26
27 FOR DEFENDANT -APPELLEE: Nina M. Gussack, Eric
28 Rothschild, and Christopher J.
29 Casalenuovo, Pepper Hamilton
30 LLP, Philadelphia, PA.
31
1 Appeal from a judgment of the United States District
2 Court for the Eastern District of New York (Weinstein, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
4 AND DECREED that the judgment of the district court is
5 AFFIRMED.
6 Appellant Barry McClamrock, proceeding pro se, appeals
7 from the district court’s judgment granting the summary
8 judgment motion of Eli Lilly and Company (“Eli Lilly”) in
9 his products liability action. The panel has reviewed the
10 briefs and the record in this appeal and agrees unanimously
11 that oral argument is unnecessary because “the facts and
12 legal arguments [have been] adequately presented in the
13 briefs and record, and the decisional process would not be
14 significantly aided by oral argument.” Fed. R. App. P.
15 34(a)(2)(c). We assume the parties’ familiarity with the
16 facts, the procedural history of the case, and the issues on
17 appeal.
18 We review an order granting summary judgment de novo,
19 and ask whether the district court properly concluded that
20 there were no genuine issues of material fact and that the
21 moving party was entitled to judgment as a matter of law.
22 See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300
2
1 (2d Cir. 2003). Here, for substantially the same reasons as
2 those stated in its decision, the district court properly
3 applied North Carolina law to McClamrock’s claims, and
4 properly concluded that, under the learned intermediary
5 doctrine, McClamrock could not establish that Eli Lilly’s
6 alleged failure to warn proximately caused any injuries
7 resulting from Dr. James Cockerill’s decision to prescribe
8 Zyprexa to McClamrock in December 1998. Additionally, while
9 we agree with McClamrock that the court should have
10 conducted a similar analysis with respect to Dr. Warren
11 Williams’s decision to prescribe Zyprexa, we conclude that
12 this omission was harmless. See Freedom Holdings, Inc. v.
13 Cuomo, 624 F.3d 38, 49 (2d Cir. 2010) (“We may affirm the
14 district court’s decision on any ground appearing in the
15 record.”). Because McClamrock would have the burden of
16 establishing proximate cause at trial, see N.C. Gen. Stat.
17 § 99B-5(a), his failure to offer any evidence that Dr.
18 Williams was unaware that diabetes was a risk associated
19 with Zyprexa when he prescribed it warranted granting
20 summary judgment in favor of Eli Lilly, see Celotex Corp. v.
21 Catrett, 477 U.S. 317, 322-23 (2d Cir. 1986).
22
3
1 Moreover, there was indirect evidence suggesting that
2 Dr. Williams was, in fact, aware of the risk of diabetes
3 associated with Zyprexa. Namely, there was evidence
4 demonstrating that Dr. Cockerill was aware of the risk at
5 issue when he prescribed Zyprexa but concluded that the
6 drug’s benefits outweighed its risks in McClamrock’s case,
7 and that Dr. Cockerill discussed his initial decision to
8 prescribe Zyprexa to McClamrock with Dr. Williams.
9 We have considered McClamrock’s remaining arguments on
10 appeal and find them to be without merit. Accordingly, the
11 judgment of the district court is AFFIRMED. Additionally,
12 McClamrock’s motion “seek[ing] his unenumerated rights of
13 jury trial per Amendment 7 and 14 in the US Constitution” is
14 DENIED. To the extent that this motion is premised on
15 McClamrock’s assertion that he was deprived of his Seventh
16 Amendment right to a jury trial, that right is not violated
17 by an award of summary judgment where, as here, there are no
18 disputed issues of material fact. See Benjamin v. Traffic
19 Exec. Ass’n E. R.R., 869 F.2d 107, 115 n.11 (2d Cir. 1989).
20
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
4