                      United States Court of Appeals
                      FOR THE EIGHTH CIRCUIT
                                  ____________

                                   No. 02-3413


Cynthia Schafer Uhiren,             *
                                    *
             Appellant,             *
                                    *    Appeal from the United States
       v.                           *    District Court for the Eastern
                                    *    District of Arkansas
Bristol-Myers Squibb Company, Inc.  *
a.k.a. Mead Johnson & Company,      *
                                    *
             Appellee.              *
                               ____________

                          Submitted: May 12, 2003

                              Filed: October 16, 2003
                                  ____________

Before WOLLMAN and BEAM, Circuit Judges, and NANGLE,* District Judge.
                         ____________

NANGLE, District Judge.

              Plaintiff Cynthia Schafer Uhiren (“Uhiren”) appeals from the decision
of the district court granting summary judgment in favor of defendant Bristol-Myers
Squibb Company, Inc. (“Bristol-Myers”) in Uhiren’s product liability claims arising
out of her use of Stadol Nasal Spray (“Stadol”), a prescription pain medication
manufactured and distributed by Bristol-Myers. We affirm.


        * The HONORABLE JOHN F. NANGLE, United States District Judge
for the Eastern District of Missouri, sitting by designation.
                                          I.

             The substantive and procedural facts relevant to this appeal follow.
Uhiren suffered from chronic migraine headaches. In 1994, she was under the care
of Dr. Mary Corbitt, a neurologist. Dr. Corbitt prescribed Stadol to alleviate Uhiren’s
pain until Dr. Corbitt discovered that Uhiren had obtained Stadol prescriptions from
multiple sources without Dr. Corbitt’s knowledge. At that point, Dr. Corbitt
confronted Uhiren, expressed concern about the quantity of Stadol that Uhiren was
consuming, and offered to refer Uhiren to a drug rehabilitation program. Uhiren did
not enter into a rehabilitation program, and she did not return to Dr. Corbitt for
further treatment.

             After leaving Dr. Corbitt’s care, Uhiren continued to acquire Stadol
through other doctors. Early in 1995, she obtained a Stadol prescription from Dr.
Mary O’Brien by knowingly misleading Dr. O’Brien about her medical history.
Shortly thereafter, in February 1995, Uhiren sought to obtain Stadol through Dr.
Steven Landry. Uhiren testified that she did not tell Dr. Landry about her treatment
by Dr. O’Brien because Uhiren believed that if she told him, Dr. Landry would not
prescribe Stadol for her. The record includes a total of seven writings from
physicians, each of whom had prescribed Stadol to Uhiren without knowing that she
was receiving Stadol from other sources.

             In 1994, Uhiren received 366 bottles of Stadol. The amount of Stadol
she received decreased significantly in 1995 and 1996, and continued to decrease in
1997, 1998, 1999, and 2000.

             In February of 1995, Dr. Steven Collier, Uhiren’s nurse practitioner
supervisor, spoke with Uhiren about an investigation into Uhiren’s use of Stadol
conducted by the Arkansas Health Department. Dr. Collier subsequently terminated
Uhiren’s employment.



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             In July 1995, Uhiren received a notice from the Arkansas State Board
of Nursing notifying her of a disciplinary hearing to determine whether to suspend
her nursing license due to her use of Stadol. The hearing took place on August 10,
1995, after which Uhiren’s nursing license was suspended.

              On August 13, 1998, Uhiren filed a complaint against Bristol-Myers but
was granted a voluntary non-suit on June 30, 1999. On June 29, 2000, she filed the
present complaint in which she alleged that “[b]etween 1992 and 1995, as a
proximate result of the use of Stadol, [Uhiren] became addicted to and dependent
upon [Stadol],” and that in 1995 she “suffered pain, diarrhea, severe stomach cramps
and lost her sense of smell and taste” as a result of her addiction to Stadol. Bristol-
Myers moved for summary judgment, asserting that because Uhiren had become
addicted to Stadol more than three years before filing her complaint, the Arkansas
statute of limitations barred her claims.

             Uhiren argued that summary judgment was inappropriate because there
was a genuine factual dispute as to when she became aware that she was addicted to
Stadol. On June 17, 2002, she submitted an affidavit stating that she did not believe
that she was addicted until 1996 or 1997 when she suffered withdrawal symptoms.
She also noted deposition testimony of her expert psychologist, Dr. Harold J.
Bursztajn. With respect to Uhiren’s awareness of her Stadol problem at the time Dr.
Corbitt confronted Uhiren about her Stadol use and suggested that Uhiren enter into
drug rehabilitation, Dr. Bursztajn opined that Uhiren “couldn’t believe her ears at that
point” because “it takes time for people to change their minds.”

             The district court granted Bristol-Myers’s summary judgment motion.
CV 200-000114, slip op. at 10 (E.D. Ark. August 16, 2002) (Wilson, J.). The district
court noted that the following undisputed facts showed that Uhiren was on notice of
her Stadol-related drug injury more than three years before she filed her complaint:
(1) Dr. Corbitt’s confrontation of Uhiren in 1994 in which Dr. Corbitt recommended
that Uhiren participate in drug rehabilitation because of her Stadol consumption; (2)

                                          -3-
Uhiren’s admission that she lied to several physicians in 1994 and early 1995 in order
to obtain multiple prescriptions of Stadol; (3) Uhiren’s termination from her
employment as a nurse practitioner in early 1995 because of an unfavorable on-going
investigation into her drug abuse by the Arkansas Health Department; (4) testimony
of Uhiren’s supervisor that Uhiren did not contest his statement to her that the
investigation by the Department of Health dealt with her alleged drug abuse; and (5)
the fact that Uhiren filled prescriptions for 336 bottles of Stadol in 1994. Id. at 7-8.

             With respect to Uhiren’s arguments, the district court noted that although
Dr. Bursztajn testified that Uhiren did not believe Dr. Corbitt in 1994 when Dr.
Corbitt confronted her, another of Uhiren’s experts, Dr. James Hayden, testified that
Uhiren was aware of her Stadol addiction in 1994. The court refused to allow Uhiren
to use her affidavit to establish a dispute in order to defeat summary judgment. Id.
at 7.

               This appeal followed. On appeal, Uhiren asserts the following errors by
the district court: (1) failure to recognize the distinction between drug abuse and drug
addiction; (2) failure to recognize the existence of a factual dispute as to when Uhiren
first became aware of her alleged injuries; (3) rejection from consideration of the
statements in Uhiren’s sworn affidavit; (4) affording improper weight to the
testimony of two of Uhiren’s experts and ultimately giving no weight to one; (5)
making a finding based on insufficient evidence that Uhiren’s termination from
employment was related to Stadol; and (6) concluding that Uhiren’s complaint was
untimely filed.

                                          II.

             We review the district court’s grant of summary judgment de novo,
giving the non-moving party the most favorable reading of the record as well as the
benefit of any reasonable inferences that arise from the record. Gentry v. Georgia-
Pacific Corp., 250 F.3d 646, 649 (8th Cir. 2001).

                                          -4-
              Summary judgment is appropriate only when the pleadings, depositions
and affidavits submitted by the parties indicate no genuine issue of material fact and
show that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56 (c). The party seeking summary judgment must first identify grounds
demonstrating the absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). Such a
showing shifts to the non-movant the burden to go beyond the pleadings and present
affirmative evidence showing that a genuine issue of material fact exists. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202
(1986). The non-moving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Ind. Co., 475 U.S. 574,
586, 106 S.Ct. 1348, 1356, 89 L. Ed. 2d (1986). The non-movant “must show there
is sufficient evidence to support a jury verdict in [her] favor.” Nat’l Bank of
Commerce v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir.1999). “Factual disputes
that are irrelevant or unnecessary will not be counted,” Anderson, 477 U.S. at 248,
and a mere scintilla of evidence supporting the nonmovant’s position will not fulfill
the non-movant’s burden, id. at 252.

              The Arkansas statute of limitations provides that a product liability
action “shall be commenced within three (3) years after the date on which the death,
injury, or damage complained of occurs.” Ark. Code Ann. § 16-116-103. A cause
of action accrues when the plaintiff “first becomes aware of her condition, including
both the fact of the injury and the probable causal connection between the injury and
the product’s use,” Stewart v. Philip Morris, Inc., 205 F.3d 1054, 1055 (8th Cir. 2000)
(internal punctuation omitted), or when the plaintiff “by the exercise of reasonable
diligence, should have discovered the causal connection between the product and the
injuries suffered,” Martin v. Arthur, 339 Ark. 149, 159, 3 S.W.3d 684, 690 (1999).

              Here, the issue is whether the record reflects any genuine issue of
material fact regarding Uhiren’s awareness of her drug problem and its causal
connection to Stadol more than three years before she filed her complaint. In

                                          -5-
addressing Uhiren’s assertions of error, we focus           on three key de novo
determinations.

             The first key determination is whether portions of Uhiren’s deposition
testimony referencing “abuse” should be considered as evidence of her “addiction”
in determining the time at which Uhiren became aware of her dependency on Stadol.

              Uhiren argues that because her complaint is predicated on drug addiction
rather than drug abuse, and because “abuse” is not synonymous with “addiction,” the
district court should not have relied on testimony referencing drug abuse in arriving
at its conclusion as to when Uhiren knew or should have known that she was addicted
to Stadol. The cases she cites in support, however, are not persuasive.

              More importantly, any distinction as to the labeling of Uhiren’s drug
problem as “abuse” or “addiction” is irrelevant to Uhiren’s awareness of her problem
with dependency that placed her on notice of a Stadol-related injury. Under the
Arkansas discovery rule, a plaintiff’s harm does not have to be fully manifest in order
for the limitations period to begin to run. Adkison v. G. D. Searle & Co., 971 F.2d
132, 134 (8th Cir. 1992). For her cause of action to accrue, therefore, Uhiren need
only to have been aware of her excessive dependency on Stadol and on notice of
injury. She need not have been fully aware of all the physical consequences of her
Stadol dependency.

              The second key determination is whether uncontroverted portions of the
record accepted by the district court as conclusive proof of Uhiren’s awareness of her
addiction in 1994 and 1995 were subject to interpretation and thus presented triable
factual issues. See Gentry, 250 F.3d at 649 (requiring that non-movant is entitled to
benefit of reasonable inferences arising from record). Assessing the evidence in the
record de novo, we note the following showings.




                                          -6-
            The record shows that in 1994, Dr. Corbitt directly confronted Uhiren
about her Stadol addiction and recommended drug rehabilitation. Dr. Corbitt’s
uncontroverted testimony is confirmed by her notes and a letter that she wrote to
Arkansas Blue Cross Blue Shield.

              The record shows that Uhiren, a nurse practitioner, knew she was taking
Stadol in quantities far greater than any doctor would knowingly approve – 366
bottles in 1994 alone. Uhiren testified that in 1994 and 1995 she evaded detection by
withholding the fact that she was receiving Stadol prescriptions from several doctors.

             The record shows that during the time period in which she was
continually seeking and obtaining Stadol in large quantities, she was, according to her
complaint, “suffer[ing] pain, diarrhea, severe stomach cramps and lost her sense of
smell and taste” as a result of her dependency on Stadol.

             The record includes uncontroverted evidence of the health-department
investigation into her Stadol problem and subsequent termination from employment
early in 1995. Her nurse practitioner supervisor testified that he terminated Uhiren on
February 14, 1995, as a result of the nursing board’s investigation into her drug abuse
and that he discussed the board’s findings with her.

             The record shows that Uhiren admits having received in July of 1995
notice of a hearing to consider suspension of her nursing license because of her
Stadol abuse.

              In light of these showings, we concur with the district court that “one
cannot escape the conclusion that [Uhiren] was on notice of drug abuse and of a
causal relationship between this drug abuse and her injuries,” CV 2:00-000114, slip
op. at 8. Uhiren’s neurologist confronted her about Stadol. She deceived other
doctors in order to obtain Stadol. She pled that she experienced physical discomfort
symptomatic of Stadol use. The health department investigated her Stadol abuse. Her

                                          -7-
employer spoke to her about Stadol. The licensing board sent her a hearing notice
referring to Stadol. These events – each of which centered around Uhiren’s abuse of
Stadol – are overwhelming proof that Uhiren was aware or should have been aware
in 1994 and 1995 that Stadol was harmful to her.

             The third key determination is whether, in light of the overwhelming
evidence in the record showing that Uhiren was aware of harm in 1994 and 1995,
Uhiren’s psychologist’s opinion, together with Uhiren’s affidavit “clarifying” her
admission to being addicted to Stadol in 1994, are sufficient to create a triable issue
of fact with respect to determining the time at which Uhiren became aware of her
Stadol addiction.

              Dr. Bursztajn stated that Uhiren “did not and could not have discovered
her addiction until late 1996 or early 1997.” His opinion testimony, however, raises
nothing more probative than a “metaphysical doubt as to the material facts,”
Matsushita, 475 U.S. at 586, which fails to “show there is sufficient evidence to
support a jury verdict in [her] favor,” Dow Chem., 165 F.3d at 607, regarding when
she was aware or reasonably should have been aware of her Stadol-related harm. In
light of the overwhelming indications in the record that Uhiren was on notice of the
causal relationship between Stadol and the evidence of harm that she was
experiencing in 1994 and 1995, Dr. Bursztajn’s testimony fails to satisfy Uhiren’s
burden to produce contrary evidence of the existence of a genuine issue of material
fact. See Anderson, 477 U.S. at 256-57 (noting non-movant’s burden of production).

             Uhiren submitted an affidavit which the district court refused to consider
because the affidavit contradicted her deposition testimony that she was addicted to
Stadol in 1994. A sham attempt to create a factual issue for purposes of defeating
summary judgment is clearly precluded, Herring v. Canada Life Assurance Co., 207
F.3d 1026, 1030 (8th Cir. 2000), although subsequent contrary affidavits are
appropriate, however, in narrow circumstances for other purposes; id. at 1030-31; see
also Bailey v. United Airlines, 279 F.3d 194, 201 (3d Cir. 2002) (“In a situation

                                          -8-
where the witness was confused . . . or for some other reason misspoke, the
subsequent correcting or clarifying affidavit may be sufficient to create a material
dispute of fact.”).

              Uhiren argues that she filed the affidavit not to deny that she was
addicted in 1994 but to clarify that her sworn testimony acknowledging her addiction
was not based on her 1994 state of mind. The district court found Uhiren’s
justification for submitting the affidavit unpersuasive and viewed the affidavit as an
impermissible attempt to defeat summary judgment where no other genuine issues of
fact existed.

              We need not address whether the district court appropriately disregarded
Uhiren’s affidavit, because the same “clarification” she purportedly sought to provide
by affidavit was provided in her psychologist’s opinion. We find that even if the
district court had accepted her affidavit, the result would have been the same.

             Pursuant to the foregoing discussion, we find no error in the district
court’s conclusion that there was no genuine issue of material fact regarding Uhiren’s
awareness prior to the three-year limitations period of her Stadol-related harm.
Accordingly, we affirm the district court’s grant of summary judgment in favor of
Bristol-Myers.

                       ______________________________




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