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Crochet v. Bristol-Myers Squibb Co.

United States District Court, M.D. Louisiana

December 13, 2018




         This matter is before the Court on the Motion for New Trial[1] by Plaintiff, Raymond Crochet (“Crochet” or “Plaintiff”). Defendants Bristol-Myers Squibb Company and Otsuka America Pharmaceutical, Inc. (collectively “Defendants”) filed an Opposition[2] to this motion, to which Plaintiff filed a Reply.[3] For the following reasons, the Court finds that Plaintiff's motion should be DENIED.


         Crochet filed suit after contracting Tardive Dyskinesia (“TD”) allegedly as a result of taking the prescription drug Abilify. Crochet was first prescribed Abilify in August of 2012, [5] as an adjunct to therapy to treat his depression.[6]

         On July 28, 2014, a doctor noticed that Crochet had developed a “shuffling gait” and Parkinsons-like symptoms, [7] explained to Crochet that the Parkinsons-like symptoms may be a side effect of Abilify, and advised that he wanted a neurologist to “confirm this.”[8]

         On August 1, 2014, Dr. Houser instructed Crochet to avoid neuroleptics and to decrease his Abilify to 10 mg daily until he saw a psychiatrist about weaning off the drug.[9]Crochet testified that he understood at that time that the shuffling gait may have had something to do with Abilify, and Dr. Houser was concerned that Abilify may be responsible for that.[10] Shortly after stopping the Abilify, Crochet's shuffling gait went away.[11] Soon thereafter, Crochet began experiencing involuntary mouth and tongue movements. Crochet testified that the tongue movements began sometime between his first and second visit with Dr. Houser and that he believed that stopping the Abilify might have caused the problem.[12]

         On September 18, 2014, Crochet visited LifeNet Psychiatry where he was under the care of Scott St. Amant (“St. Amant”), a family psychiatric mental health nurse practitioner.[13] On that date, St. Amant first noted that Crochet presented with obvious lip-smacking and involuntary tongue movements.[14] St. Amant instructed Crochet to follow up with a neurologist due to the orofacial movements he observed.[15]

         On October 3, 2014, Crochet again visited LifeNet Psychiatry. St. Amant again noted that Crochet presented with lip smacking and with an attenuated shuffling gait.[16]St. Amant noted that the symptoms had been ongoing for at least two weeks and again referred Crochet to see a neurologist.[17] St. Amant testified that he was concerned about the orofacial movements because he thought it was consistent with TD.[18] On October 7, 2014, Crcochet saw Dr. Houser for the second time. At this visit, Dr. Houser observed the mouth movements and diagnosed Crochet with TD.[19]

         On April 24, 2018, this Court granted Defendants' Motion for Summary Judgment[20]on prescription grounds. The Court ruled that Crochet's claims were time-barred under Louisiana law because Crochet's injury occurred in September of 2014 and prescribed in September 2015. Thus, Crochet's claim, filed October 7, 2015, was prescribed as a matter of law.[21]

         Crochet now moves for a new trial pursuant to Rule 59(e) of the Federal Rules of Civil Procedure on the grounds that this Court's Ruling contains “clear errors of law and fact, and would result in manifest injustice if not corrected.”[22] Specifically, Crochet argues that the Court “did not properly apply the Louisiana doctrine of contra non valentem, based its ruling on errors of fact, and decided material issues of fact that should have been reserved for trial.”[23] Crochet alleges the Court relied on three manifest errors of fact and three manifest errors of law in granting Defendants' Motion for Summary Judgment.

         II. Law and Analysis

         A. Motion for New Trial

         “A rule 59(e) motion ‘calls into question the correctness of a judgment.'”[24] “A Rule 59(e) motion must clearly establish either a manifest error of law or fact or must present newly discovered evidence”[25] and “is not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment.”[26] “'Manifest error' is one that ‘is plain and indisputable, and that amounts to a complete disregard of the controlling law.'”[27] The Fifth Circuit has explained that reconsideration of a judgment after it has been entered under Rule 59(e) “[i]s an extraordinary remedy that should be used sparingly.”[28] “While the district courts do have ‘considerable discretion in deciding whether to grant or deny a motion to alter judgment,' denial of a Rule 59(e) motions to alter or amend is favored.”[29]

         B. Manifest Error of Fact

         Crochet has not introduced any new evidence or suggested that there has been a change in controlling law. Therefore, the inquiry here concerns Crochet's alleged errors of fact and law. Crochet argues the Court erroneously relied on the following three facts: (1) that the shuffling gait Crochet experienced in July 2014 related to tardive dyskinesia; (2) that “on September 28, 2014, Dr. St. Amant told Mr. Crochet that his lip smacking and involuntary mount movements were caused by Abilify;” and (3) that Crochet's testimony reflects his awareness that Abilify produced his TD prior to October 7, 2014.[30] Crochet contends the above factual inferences should not have been made in a summary judgment and are not supported by the evidence.[31]

         Crochet first argues that his “shuffling gait was likely not caused by tardive dyskinesia, ”[32] therefore the Court erred in finding this an undisputed fact. Defendants contend the Court did not rely on Crochet's shuffling gait symptoms for its holding that Crochet's injury occurred in September 2014.[33] Defendants are correct. As explained previously, Crochet's own testimony reflects that he was aware of his symptoms prior to October 2014, and “[i]t is the plaintiff/patient's knowledge of the connection between his/her alleged injuries and damages and the medical product that is key to the accrual of the cause of action.”[34] In Jenkins v. Bristol-Myers Squibb, the Fifth Circuit affirmed a district court's decision granting summary judgment in favor of the defendants based on prescription. In Jenkins, the court found that prescription began to run on an LPLA claim involving TD and Abilify when the plaintiff sustained tremors, fidgeting, and jaw clenching, and was aware of their connection to Abilify.[35] Similarly, the Court found that Crochet's symptoms manifested in September 2014, and he was aware of the symptoms' connection to Abilify.[36] Because the Court found, based on Crochet's own admission, that Crochet's “injury occurred in September of 2014, ” it clearly did not rely on Crochet's shuffling gait experienced in July in reaching this conclusion. The undisputed facts before the Court demonstrated that Crochet was aware of cognizable injuries potentially connected to Abilify before October 7, 2014.

         Next, Crochet argues that the Court erroneously found that, “on September 28, 2014, Dr. St. Amant told Mr. Crochet that his lip smacking and involuntary mouth movements were caused by Abilify.”[37] Specifically, the Court previously found that on September 28, 2014, “St. Amant advised Crochet to consult a neurologist about the orofacial movements because he was concerned that it was TD.”[38] This Court did not find that St. Amant told Crochet that his orofacial movements “were caused by Abilify, ” as Crochet contends, but found that the record demonstrated that St. Amant was concerned about the possibility of TD. As Defendants note, this Court did not rely on this fact in determining the prescriptive date of Crochet's claims. Crochet's own testimony established that he was aware that his symptoms were being caused by Abilify before October 7, 2014.[39]

         Crochet's last allegation of factual error is the Court's finding that his deposition testimony established that he was aware prior to October 7, 2014 that his TD was caused by Abilify.[40] Plaintiff testified:

Q: … [On] August 1st of 2014, [Dr. Houser] told you that he thought that your movement issues could be related to Abilify. Correct?
A: That's correct.[41]
Q: Did you know before you looked up Abilify that it was the Abilify that was probably - A: Yes, I knew that when I stopped taking the drug this started happening.
That's the only variable there was.
Q: So you're taking Abilify, you stop taking Abilify, and then you start experiencing the mouth movements. And so at that point you knew it had to be the Abilify because that's what happened when you stopped taking it?
A: Yes.
Q: And so that's why you looked it up?
A: Yes.[42]

         Crochet's testimony demonstrates that he knew of his injury and its connection to Abilify before October 7, 2014.

         In denying a similar motion for reconsideration in Jenkins, the court relied on the plaintiff's testimony that “obviously [he] was off Abilify and that's what was causing [the facial movement issues]” to establish when the prescription period began to run.[43] Based on the testimony above, it is undisputed that Crochet exhibited cognizable injuries and was aware of their connection to Abilify prior to October 7, 2014. Crochet's challenge appears to be to his own ...

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