Jan 4, 2013 - Uncategorized by Walton Lantaff
With the threat of a pending hearing on Defendant’s Motion for Summary Judgment, Plaintiff’s counsel filed an 11th hour Notice of Voluntary Dismissal on a products liability case that was initiated in 2007 in West Palm Beach.
The claims against our client, a pharmacy, sounded in negligence, failure to warn, breach of warranty, false advertising, and improper compounding.
According to the Plaintiff’s allegations, she used human grown hormone (HGH), which was compounded and provided by our client. It was further alleged that the HGH caused a brain tumor (meningioma), which was discovered several months after the Plaintiff began using the HGH. The claim was being defended on several grounds including the fact that there was no correlation between HGH and the Plaintiff’s injuries.
After many years of litigation and after obtaining the opinion of pharmacology/toxicology expert, Walton Lantaff Associate Attorney Lourdes de Armas-Suarez, Esq., filed a Motion for Summary Judgment on behalf of the Defendant to exert pressure on the Plaintiff, as she had failed to present substantial evidence to establish the link between the HGH and her brain tumor.
The Motion for Summary Judgment was supported by an affidavit from the pharmacology/toxicology expert, who opined that there was no evidence that our client’s actions or product caused the Plaintiff’s alleged damages. The affidavit stated that the expert’s search of published literature failed to reveal adequate scientific evidence that growth hormone was a risk factor/cause of a meningioma.. The expert also opined that there was insufficient scientific evidence that the use of growth hormone would have been causally related to the meningioma which developed in the Plaintiff.
Less than one week prior to the scheduled hearing for the Motion for Summary Judgment, the Plaintiff filed a voluntary dismissal against our client.
Although the notice of voluntary dismissal was silent as to whether it was with or without prejudice (which is interpreted to mean without prejudice), the statute of limitations on this case has run. Thus, the dismissal filed by the Plaintiff effectively acts as a dismissal with prejudice.
