                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-1566


ENERY FERNANDEZ-PINEIRO, et al.,

                Plaintiffs - Appellants,

          v.

BAUSCH & LOMB, INC.,

                Defendant - Appellee.



                              No. 10-1599


In Re:    BAUSCH & LOMB INCORPORATED CONTACT LENS SOLUTION
PRODUCTS LIABILITY LITIGATION; SPECIAL MASTER DANIEL CAPRA.

------------------------------

SAMUEL CRUZ DE JESUS; EDUARDO RODRIGUEZ; MARIA T. BURGOS;
IRIS AQUILES RAMOS,

                Plaintiffs – Appellants,

          and

EVA I. GARCIA; SHIRLEY MELENDEZ RIVERA; ELIZABETH MENDEZ
SOTO; ZENAIDA LOPEZ ORTIZ; NILSA RIVERA, on her own behalf
and in representation of her minor daughter Marnie N.
Sanchez Rivera,

                Plaintiffs,

          v.
BAUSCH & LOMB, INC.,

                Defendant – Appellee,

          and

INSURANCE COMPANY ABC,

                Defendant.



                             No. 10-1601


In Re:    BAUSCH & LOMB INCORPORATED CONTACT LENS SOLUTION
PRODUCTS LIABILITY LITIGATION; SPECIAL MASTER DANIEL CAPRA.

------------------------------

RUDOLPH V. DECLET-FLORES; MARIELI TIRADO-LOPEZ;    CONJUGAL
PARTNERSHIP DECLET-TIRADO; HECTOR MENDEZ,

                Plaintiffs – Appellants,

          v.

BAUSCH & LOMB, INC.,

                Defendant – Appellee,

          and

INSURANCE COMPANY ABC,

                Defendant.



                             No. 10-1634


In Re:    BAUSCH & LOMB INCORPORATED CONTACT LENS SOLUTION
PRODUCTS LIABILITY LITIGATION; SPECIAL MASTER DANIEL CAPRA.

------------------------------


                                  2
NOEMI CORTES-IRIZARRY,

                Plaintiff – Appellant,

          v.

BAUSCH & LOMB, INC.,

                Defendant - Appellee.



Appeals from the United States District Court for the District
of South Carolina, at Charleston.       David C. Norton, Chief
District Judge. (2:06-cv-02702-DCN; 2:06-cv-03273-DCN; 2:06-cv-
03272-DCN; 2:06-cv-03477-DCN; 2:06-mn-77777-DCN)


Submitted:   April 18, 2011              Decided:   April 29, 2011


Before MOTZ, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Eric Quetglas-Jordan, QUETGLAS LAW OFFICE, San Juan, Puerto
Rico; E. Kirk Wood, Jr., WOOD LAW FIRM, L.L.C., Birmingham,
Alabama; John E. Mudd, LAW OFFICES OF JOHN E. MUDD, San Juan,
Puerto Rico; Emilio F. Soler, SOLER & SOLER, San Juan, Puerto
Rico, for Appellants.     Marie S. Woodbury, Eric M. Anielak,
SHOOK, HARDY & BACON, L.L.P., Kansas City, Missouri; Michael T.
Cole,   William  C.   Wood,  Jr.,   NELSON,   MULLINS,  RILEY  &
SCARBOROUGH, L.L.P., Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                 3
PER CURIAM:

            In     these      consolidated           appeals,        Enery        Fernandez-

Pineiro,    Samuel      Cruz        de     Jesus,     and        Rudolph    Declet-Flores

(collectively “Summary Judgment Appellants”) appeal the district

court’s judgment granting summary judgment in favor of Bausch &

Lomb, Inc. (“Bausch & Lomb”) on their products liability claims,

and Noemi Cortés-Irizarry appeals the court’s judgment denying

her Fed. R. Civ. P. 59(e) motion to alter or amend.                          We affirm.

            Bausch     &     Lomb    manufactured          the    multipurpose       contact

lens solution ReNu MoistureLoc (“MoistureLoc”) for use in the

daily    cleaning      and    disinfection          of     certain       contact     lenses.

Pursuant to FDA standards, Bausch & Lomb tested MoistureLoc and

believed that it was effective in killing the microorganisms

that cause eye infections.                  In 2006, nearly two years after

Bausch & Lomb began marketing MoistureLoc in the United States,

outbreaks of Fusarium keratitis, a fungal eye infection, were

reported    among      MoistureLoc         users.        Bausch      &     Lomb    began    an

investigation       into      the        connection      between         MoistureLoc       and

Fusarium keratitis and withdrew MoistureLoc from stores.                                   In

late    2006,    the   Centers       for    Disease        Control       (“CDC”)    and    FDA

published findings indicating that users of MoistureLoc were at

an increased risk for developing Fusarium keratitis.

            Following the FDA and CDC reports, and Bausch & Lomb’s

decision    to    remove       MoistureLoc          from    the      market,       users   of

                                              4
MoistureLoc instituted products liability actions against Bausch

& Lomb in courts around the country.                 Suits (including those

commenced by the Appellants in this action) that were commenced

in or removed to federal court were consolidated for pre-trial

proceedings in South Carolina district court by order of the

Judicial Panel on Multidistrict Litigation.

              The plaintiffs in the district court proceedings were

made up of two groups: those who had suffered from Fusarium

keratitis, and those who had suffered from other eye infections

not related to the Fusarium strain.            Bausch & Lomb contends that

those    plaintiffs    who   alleged    they   had    suffered   non-Fusarium

infections could not demonstrate that their use of MoistureLoc

caused the infections.          After a hearing conducted pursuant to

Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579, 592 (1993), the district court excluded as

unreliable the only causation evidence the plaintiffs had put

forth on their non-Fusarium claims.              Bausch & Lomb moved for

summary judgment against the non-Fusarium plaintiffs, and the

court granted the motion.

              After   summary   judgment   was   granted,   Cortés-Irizarry

moved, pursuant to Fed. R. Civ. P. 59(e), to alter or amend the

judgment or to reconsider.             Cortés-Irizarry claimed, for the

first time, that she had medical evidence to support a claim

that    she   suffered   from   Fusarium   keratitis.       Cortés-Irizarry

                                       5
attached to her motion a report in support of her claim by Dr.

Carmen    Santos.         The     report   suggested     that    Cortés-Irizarry’s

illness may be related to the Fusarium bacteria.                            The court,

however, denied the motion on the grounds that the report was

available prior to the hearing on summary judgment and Cortés-

Irizarry did not present it to the court at that time.                            This

appeal followed.



              I.      Summary Judgment (Nos. 10-1566/1599/1601)

              This court reviews de novo a district court’s order

granting summary judgment and views the facts in the light most

favorable to the nonmoving party.                Rowzie v. Allstate Ins. Co.,

556    F.3d        165,   167     (4th Cir. 2009).        Summary      judgment     is

appropriate when no genuine issue of material fact exists and

the moving party “is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).              Summary judgment will be granted unless

“a    reasonable      jury      could   return   a   verdict    for   the    nonmoving

party” on the evidence presented.                    Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986).



              a.      Failure to Warn Negligence

              Summary Judgment Appellants first claim that the court

either misconstrued or ignored their failure to warn negligence

claim.    Under Puerto Rican law, which the parties agree applies

                                            6
to the substantive issues adjudicated on summary judgment, to

satisfy the elements of a failure to warn claim, the plaintiff

must prove “(1) the manufacturer knew, or should have known of

the risk inherent in the product; (2) there were no warnings or

instructions, or those provided were inadequate; (3) the absence

of   warnings       made   the    product        inherently     dangerous;      (4)    the

absence of adequate warnings or instructions was the proximate

cause   of    plaintiff's        injury.”         Cruz-Vargas     v.    R.J.    Reynolds

Tobacco      Co.,    348     F.3d     271,       276   (1st Cir. 2003)         (internal

citations omitted).

             Summary       Judgment    Appellants       argue    that    the    district

court erred by imposing a requirement that they offer proof of a

products defect in order to satisfy the elements of negligent

failure to warn.           They claim that the district court conflated

the elements of strict liability failure to warn with negligent

failure to warn, and that under Puerto Rican law, they have

offered sufficient evidence to survive summary judgment.                              They

claim that they have presented a valid claim that Bausch & Lomb

would still be liable due to its failure to warn plaintiffs that

they could suffer eye infections notwithstanding their use of

MoistureLoc, even in the absence of a product defect.

             We have reviewed the record, and conclude that their

claim is without merit.             Even if Puerto Rican law supports their

claim, the record is devoid of any evidence to survive a motion

                                             7
for   summary       judgment.           To    the     extent    that     Summary        Judgment

Appellants properly pled and preserved this cause of action,

they have adduced no evidence to support it.                            See Celotex Corp.

v. Catrett, 477 U.S. 317, 322-23 (1986) (no genuine issue of

material fact where the nonmoving party makes a complete failure

of    proof     concerning        an     essential       element       of    the    nonmoving

party’s case).



               b.      Causation

               Summary      Judgment          Appellants        next     argue      that      the

district       court     erred     in     imposing       a     requirement         of    general

causation      where       the    laws       of   Puerto     Rico      recognize        no   such

requirement.        They argue that Puerto Rican courts simply reject

the concept of general causation, and instead, focus on whether

the plaintiffs were able to adduce evidence of “adequate cause.”

“Adequate cause, parallel to proximate cause, is that which, in

light    of    general      experience,           ordinarily     produces      the       damages

suffered. In other words, that which in the ordinary and normal

course    of    events      would       have      resulted      in     the   occurrence        of

plaintiffs’ damages.”             Perez v. Hyundai Motor Co.                  440 F. Supp.

2d 57, 73-74 (D.P.R. 2006).

               We   find    the    distinction          Summary      Judgment       Appellants

attempt to draw between adequate cause and general causation

unpersuasive.          Under either standard, the Plaintiffs must prove

                                                  8
that a product defect in MoistureLoc caused their injuries.                                  At

the    Daubert    hearing,        the    district      court      essentially        rejected

that claim for non-Fusarium plaintiffs.                     See In re Bausch & Lomb

Inc., Contact Lens Solution Prods. Liab. Litig., No. 2:06-MN-

77777-DCN (D.S.C. Aug. 26, 2009).                      In addition, Fed. R. Evid.

702    allows    expert     testimony          only    to   the    extent       that    it   is

reliable.        Summary         Judgment      Appellants         adduced       no   reliable

expert    testimony         prior        to    summary      judgment          showing    that

MoistureLoc caused their injuries.                     Accordingly, we decline to

disturb the district court’s grant of summary judgment.



                     II.    Rule 59(e) Motion (No. 10-1634)

              Cortés-Irizarry           appeals       the   district          court’s   order

denying her Fed. R. Civ. P. 59(e) motion to alter or amend the

order granting summary judgment.                   “This court reviews the denial

of a Rule 59(e) motion under the deferential abuse of discretion

standard.”       Robinson v. Wix Filtration Corp., 599 F.3d 403, 407

(4th Cir. 2010).            To    demonstrate         entitlement        to    relief   under

Rule    59(e),    a   movant       has    to    demonstrate        (1)    an     intervening

change in controlling law; (2) new evidence not available at

trial; or (3) that there has been a clear error of law or a

manifest injustice. Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co.,

148    F.3d   396,    403    (4th       Cir.    1998).      Measured          against   these



                                               9
requirements, the district court’s denial of Cortés-Irizarry’s

Rule 59(e) motion easily survives appellate scrutiny.

               While Rule 59 “permits a district court to correct its

own errors, sparing the parties and the appellate courts the

burden    of    unnecessary       appellate       proceedings,”          motions     under

that rule may not be used “to raise arguments which could have

been    raised      prior   to    the   issuance     of    the     judgment[.]”          Id.

(citing    cases).          The    record    reveals       that     Cortés-Irizarry’s

medical    expert      report     was   dated      September       2009;    nearly    four

months before the hearing on Bausch & Lomb’s summary judgment

motion.    Cortés-Irizarry did not file a separate response to the

motion for summary judgment.              Rather, she relied on the general

response from the Plaintiff’s Steering Committee.                          In her brief

on appeal, Cortés-Irizarry states that she relied on the general

response because she deemed it to be “a legally comprehensive

document.”          This    misjudgment,         which    caused    her     to    fail    to

provide relevant evidence to the district court prior to summary

judgment, was not adequate justification to permit her to reopen

her case.       Accordingly, we conclude that the district court did

not abuse its discretion in denying Cortés-Irizarry’s Rule 59(e)

motion.

               We   therefore      affirm    the     judgment       of     the   district

court.     We dispense with oral argument because the facts and

legal    contentions        are   adequately       presented       in    the     materials

                                            10
before   the   court   and   argument    would   not   aid   the   decisional

process.

                                                                     AFFIRMED




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