                Case: 15-13982     Date Filed: 05/23/2016   Page: 1 of 8


                                                             [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 15-13982
                               Non-Argument Calendar
                             ________________________

                         D.C. Docket No. 1:14-cv-00822-ODE

JENNA THURMOND,

                                                     Plaintiff - Appellant,

versus

BAYER HEALTHCARE PHARMACEUTICALS, INC.,

                                                     Defendant - Appellee.

                             ________________________

                     Appeal from the United States District Court
                        for the Northern District of Georgia
                           ________________________

                                    (May 23, 2016)

Before MARCUS, WILLIAM PRYOR and FAY, Circuit Judges.

PER CURIAM:

         In this products liability action, Plaintiff-Appellant Jenna Thurmond appeals

from the district court’s final order granting summary judgment in favor of

Defendant-Appellee Bayer Healthcare Pharmaceuticals, Inc. (“Bayer”).              Her
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complaint brought various state-law claims arising out of Bayer’s manufacture and

distribution of the Mirena intrauterine contraception system (“Mirena IUS”), which

allegedly caused her injuries. On appeal, Thurmond argues that the district court:

(1) abused its discretion by denying her motions to extend fact discovery and

expert disclosure deadlines; (2) abused its discretion by denying her motion to

amend her complaint; and (3) improperly granted summary judgment in favor of

Bayer. After thorough review, we affirm.

      We review a district court’s rulings on discovery motions for abuse of

discretion. See Benson v. Tocco, Inc., 113 F.3d 1203, 1208 (11th Cir. 1997).

Likewise, we “will only reverse a district court’s denial of a motion to amend in

instances in which the district court has clearly abused its discretion.” Oravec v.

Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1231 (11th Cir. 2008)

(quotation omitted). The abuse-of-discretion standard of review is “extremely

limited and highly deferential.” In re Clerici, 481 F.3d 1324, 1331 (11th Cir. 2007)

(quotation omitted). “Discretion means the district court has a range of choice, and

that its decision will not be disturbed as long as it stays within that range and is not

influenced by any mistake of law.” Betty K Agencies, Ltd. v. M/V Monada, 432

F.3d 1333, 1337 (11th Cir. 2005) (quotation omitted). We review a district court’s

grant of summary judgment de novo. See Nat’l Fire Ins. Co. of Hartford v.

Fortune Constr. Co., 320 F.3d 1260, 1267 (11th Cir. 2003).


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      The essential facts are these.   On March 20, 2014, Thurmond filed a

complaint in federal district court alleging that her use of the Mirena IUS, a

contraceptive device manufactured and designed by Bayer, caused her to develop

pseudotumer cerebri (“PTC”), also known as idiopathic intracranial hypertension

(“IIH”). Her symptoms included severe migraines, changes to her vision and

hearing, vertigo, and head and neck pain.        Thurmond asserted claims for

negligence, design defect, failure to warn, strict liability, breach of implied

warranty, breach of express warranty, negligent misrepresentation, fraudulent

misrepresentation, and fraud by suppression and concealment.

      On May 23, 2014, the parties filed a Joint Preliminary Report and Discovery

Plan. Thurmond proposed a scheduling order that set a fact discovery deadline of

October 23, 2015, and Bayer sought a discovery schedule with fact discovery

ending on November 28, 2014. The district court adopted Bayer’s proposal on

June 11, 2014. On November 7, 2014, the district court granted the parties’ joint

request to extend the deadline for fact discovery to January 31, 2015. On January

31, Thurmond filed a motion to extend discovery until October 23, 2015. The

court denied this request. It found that Thurmond had not shown what new fact

discovery was needed or why it was needed, and determined that Thurmond’s

counsel had not been diligent in reviewing documents.




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      On March 30, 2015, Thurmond filed a motion to extend the expert

disclosure deadline, and on April 30 she filed a motion to amend her complaint to

add foreign entities Bayer Oy and Bayer Pharma AG as defendants. Bayer moved

for summary judgment on May 11, 2015. On August 4, 2015, the district court

issued an order denying Thurmond’s motions to extend discovery and to amend

her complaint, and granting Bayer’s motion for summary judgment on all counts.

This appeal follows.

      First, we find no merit to Thurmond’s argument that the district court abused

its discretion by denying her motions to extend fact discovery and expert

disclosure deadlines. The scheduling order set by the district court “may be

modified only for good cause and with the judge’s consent.” Fed. R. Civ. P.

16(b)(4). “[W]e have often held that a district court’s decision to hold litigants to

the clear terms of its scheduling orders is not an abuse of discretion.” Josendis v.

Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1307 (11th Cir. 2011).

Thurmond submitted her first request for production on October 21, 2014, four

months after the discovery schedule was entered.          She did not initiate any

depositions, or name any expert witnesses.       Thurmond explained that further

discovery would be necessary if additional defendants were added. But because

the court was within its discretion to deny leave to amend her complaint, as




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discussed below, this request was properly denied. The district court granted one

discovery deadline extension. It was not an abuse of discretion to deny a second.

      We are also unconvinced by Thurmond’s claim that the district court abused

its discretion by denying her motion to amend her complaint to add two Bayer

foreign entities. A party may amend its pleading once as a matter of course within

21 days after serving it, or 21 days after service of a responsive pleading or certain

Rule 12 motions. Fed. R. Civ. P. 15(a)(1). “In all other cases, a party may amend

its pleading only with the opposing party’s written consent or the court’s leave.

The court should freely give leave when justice so requires.” Fed. R. Civ. P.

15(a)(2). “Nevertheless, a motion to amend may be denied on numerous grounds,

such as undue delay, undue prejudice to the defendants, and futility of the

amendment.” Carruthers v. BSA Advert., Inc., 357 F.3d 1213, 1218 (11th Cir.

2004) (quotation omitted).      “Prejudice and undue delay are inherent in an

amendment asserted after the close of discovery and after dispositive motions have

been filed, briefed, and decided.” Campbell v. Emory Clinic, 166 F.3d 1157, 1162

(11th Cir. 1999). “[I]t is not an abuse of discretion for a district court to deny a

motion for leave to amend following the close of discovery, past the deadline for

amendments and past the deadline for filing dispositive motions.” Lowe’s Home

Centers, Inc. v. Olin Corp., 313 F.3d 1307, 1315 (11th Cir. 2002).




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      Here, Thurmond sought to amend her complaint on April 30, 2015, ten

months after the deadline to amend pleadings, and three months after the close of

fact discovery. But as early as the filing of the parties’ joint discovery plan on

May 23, 2014, Thurmond expressly recognized that foreign defendants were

necessary to the case. See D.E. 8 at 13 (providing, as plaintiff’s position, that

“Defendant out-sourced many of its Mirena-related tasks to related entities in

foreign countries, necessitating the addition of foreign defendants and foreign

discovery.”). In addition, Thurmond’s counsel represents plaintiffs in multidistrict

litigation (“MDL”) involving an unrelated alleged defect in the Mirena IUS, and

Bayer Oy and Bayer Pharma AG are both defendants. In re: Mirena IUD Products

Liability Litigation, 938 F. Supp. 2d 1355 (J.P.M.L. 2013). Thurmond’s counsel

admits that the firm had access to the MDL database as of October 2, 2014, and

was aware of the foreign parties’ role in developing the Mirena IUS -- long before

Thurmond moved for leave to amend. On this record, Thurmond cannot show

good cause to add the foreign defendants now after having waited for so long. The

district court acknowledged that some delay may have been warranted given the

obstacles to joining foreign entities. But as we see it, the district court did not

abuse its discretion by denying leave to amend this late in the process.

      Finally, we are unpersuaded by Thurmond’s argument that the district court

improperly granted summary judgment in favor of Bayer. Summary judgment is


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appropriate where the pleadings and supporting materials establish that there is no

genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986). “We draw all factual inferences in a light most favorable to

the non-moving party.” Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008).

As relevant here, when the summary judgment movant does not bear the burden of

proof at trial, the movant may show “that there is an absence of evidence to

support the non-moving party’s case.” Doe v. Drummond Co., 782 F.3d 576, 603-

04 (11th Cir. 2015) (quotation omitted), cert. denied, 136 S. Ct. 1168 (2016). “If

the movant shows that there is an absence of evidence, the non-moving party who

bears the burden of proof at trial must contradict this showing by demonstrating

that the record in fact contains supporting evidence, sufficient to withstand a

directed verdict motion.” Id. at 604 (quotation omitted). “In the alternative, the

non-movant may come forward with additional evidence sufficient to withstand a

directed verdict motion at trial based on the alleged evidentiary deficiency.” Id.

(quotation omitted).

      In this appeal, Thurmond has conceded that she has “not attempted to argue

the merits of the lower court’s ruling on granting summary judgment.” Reply Br.

at 17. Thus, she has abandoned this issue, and it is not before us. See Access

Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“the law is


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by now well settled in this Circuit that a legal claim or argument that has not been

briefed before the court is deemed abandoned and its merits will not be

addressed.”).1

       AFFIRMED.




1
  In any event, even if we were to consider it, we could not conclude that the district court erred
in granting summary judgment in favor of Bayer. As the record reveals, Thurmond did not put
forth evidence in the district court to establish the elements of her claims. For example, “[t]o
prevail in a Georgia products liability action, whether based on negligence or strict liability, a
plaintiff must show that the proximate cause of the injury was a defect which existed when the
product was sold.” Carmical v. Bell Helicopter Textron, Inc., a Subsidiary of Textron, Inc., 117
F.3d 490, 494 (11th Cir. 1997) (citing Ga. Code § 51-1-11(b)(1)). Under Georgia law, medical
expert testimony is essential in products liability actions when the theory of causation is not a
natural inference that a juror could make through human experience. See Allison v. McGhan
Med. Corp., 184 F.3d 1300, 1320 (11th Cir. 1999). Here, it is undisputed that jurors cannot
naturally infer a causal link between the Mirena IUS and PTC/IIH, and that Thurmond has
offered no expert testimony on causation. For much the same reason, her non-products liability
claims fail as well. As a result, the district court did not err in granting summary judgment in
favor of Bayer on Thurmond’s claims.
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