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Sisk v. Abbott Laboratories

United States District Court, W.D. North Carolina, Asheville Division

February 10, 2014

KIMBERLY S. SISK, individually and as mother, natural guardian and Guardian ad Litem of S.A.S., a minor, Plaintiff,
v.
ABBOTT LABORATORIES, an Illinois corporation, Defendant.

ORDER

MARTIN REIDINGER, District Judge.

THIS MATTER is before the Court on the Defendant's Motion for Reconsideration [Doc. 156].

I. PROCEDURAL BACKGROUND

On November 21, 2013, the parties appeared before the Court for a hearing on the Defendant's motion for summary judgment. The Defendant's motion was based in part on Section 99B-10 of the North Carolina Products Liability Act, which provides that "any person... who donates an item of food for use or distribution by a nonprofit organization or nonprofit corporation shall not be liable for civil damages... resulting from the nature, age, condition, or packaging of the donated food, unless an injury is caused by the gross negligence, recklessness, or intentional misconduct of the donor." N.C. Gen. Stat. § 99B-10(a).

The Court denied the Defendant's motion in part and granted it in part from the bench and in a minute order. Specifically with respect to the Defendant's Section 99B-10 argument, the Court stated that given "the forecast of [the] evidence in the light most favorable to the plaintiff... a jury could determine that the delivery of the formula to the hospital did not constitute a donation under the statute and that that is a factual determination." [Doc. 157-1 at 95].

The Defendant now moves the Court pursuant to Rule 54(b) to reconsider its finding that what constitutes a "donation" under Section 99B-10 is a factual determination that should be left to the jury. Instead, the Defendant urges the Court to rule as a matter of law that the Defendant's provision of powdered infant formula (PIF) to Transylvania Community Hospital at no cost constituted a donation under the statute such that the Defendant is entitled to summary judgment on all claims related to PIF received by the Plaintiff from the hospital. [Doc. 156].

The Plaintiff opposes the Defendant's motion, arguing that a question of fact is presented as to whether the Defendant received consideration for the PIF it provided to the hospital. Alternatively, the Plaintiff renews her argument that the Defendant has waived the affirmative defense of N.C. Gen. Stat. § 99B-10 by failing to plead the defense in a timely manner. [Doc. 159].

II. STANDARD OF REVIEW

Rule 54(b) of the Federal Rules of Civil Procedure provides that, in the absence of an express order directing final judgment as to certain claims or parties:

[A]ny order or other decision, however designated, that adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.

Fed. R. Civ. P. 54(b). Pursuant to this rule, the Court "retains the power to reconsider and modify its interlocutory judgments, including partial summary judgments, at any time prior to final judgment when such is warranted." Am. Canoe Ass'n v. Murphy Farms, Inc. , 326 F.3d 505, 514-15 (4th Cir. 2003). The decision to grant or deny a Rule 54(b) motion is "committed to the discretion of the district court." Id. at 515. A prior dispositive order should be followed unless "(1) a subsequent trial produces substantially different evidence, (2) controlling authority has since made a contrary decision of law applicable to the issue, or (3) the prior decision was clearly erroneous and would work manifest injustice." Id . (internal quotations omitted).

III. ANALYSIS

At the summary judgment hearing, the Court stated that the record presented a forecast of evidence from which a jury could determine that the delivery of the formula to the hospital did not constitute a donation under the statute and thus denied summary judgment to the Defendant on the basis of a Section 99B-10 defense. After further consideration and review, the Court concludes that its decision to deny the Defendant's motion for summary judgment with respect to the Section 99B-10 defense was correct, but that the reasoning underlying that decision may have been erroneous. For the reasons that follow, the Court concludes that the Defendant is waived from presenting this affirmative defense in the case at bar.

A defendant bears the burden of affirmatively pleading an affirmative defense. See Fed.R.Civ.P. 8(c)(1); Eriline Co. S.A. v. Johnson , 440 F.3d 648, 653 (4th Cir. 2006). Generally, the "failure to plead an affirmative defense as required by Federal Rule 8(c) results in the waiver of that defense and its exclusion from the case...." Suntrust Mortg., Inc. v. United Guar. Residential Ins. Co. of N.C. , 508 F.Appx. 243, 252 (4th Cir. 2013) (quoting 5 Charles Alan Wright and Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1278 (3d ed. 2012)). "Such waiver, however, should not be effective unless the ...


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