         11-4721
         McClamrock v. Eli Lilly and Co.

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1              At a stated term of the United States Court of Appeals for the Second Circuit, held
 2       at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
 3       New York, on the 29th day of November, two thousand twelve.
 4
 5       PRESENT:
 6                JOHN M. WALKER, Jr.,
 7                RICHARD C. WESLEY,
 8                PETER W. HALL,
 9                     Circuit Judges.
10       _____________________________________
11
12       Barry Kenneth McClamrock,
13
14                            Plaintiff-Appellant,
15
16                     v.                                               11-4721
17
18       Eli Lilly and Company,
19
20                     Defendant-Appellee.
21       _____________________________________
22
23
24       FOR PLAINTIFF-APPELLANT:                  Barry McClamrock, pro se,
25                                                 Concord, NC.
26
27       FOR DEFENDANT -APPELLEE:                  Nina M. Gussack, Eric
28                                                 Rothschild, and Christopher J.
29                                                 Casalenuovo, Pepper Hamilton
30                                                 LLP, Philadelphia, PA.

31
 1       Appeal from a judgment of the United States District

 2   Court for the Eastern District of New York (Weinstein, J.).

 3       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 4   AND DECREED that the judgment of the district court is

 5   AFFIRMED.

 6       Appellant Barry McClamrock, proceeding pro se, appeals

 7   from the district court’s judgment granting the summary

 8   judgment motion of Eli Lilly and Company (“Eli Lilly”) in

 9   his products liability action.    The panel has reviewed the

10   briefs and the record in this appeal and agrees unanimously

11   that oral argument is unnecessary because “the facts and

12   legal arguments [have been] adequately presented in the

13   briefs and record, and the decisional process would not be

14   significantly aided by oral argument.”    Fed. R. App. P.

15   34(a)(2)(c).   We assume the parties’ familiarity with the

16   facts, the procedural history of the case, and the issues on

17   appeal.

18       We review an order granting summary judgment de novo,

19   and ask whether the district court properly concluded that

20   there were no genuine issues of material fact and that the

21   moving party was entitled to judgment as a matter of law.

22   See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300


                                   2
 1   (2d Cir. 2003).   Here, for substantially the same reasons as

 2   those stated in its decision, the district court properly

 3   applied North Carolina law to McClamrock’s claims, and

 4   properly concluded that, under the learned intermediary

 5   doctrine, McClamrock could not establish that Eli Lilly’s

 6   alleged failure to warn proximately caused any injuries

 7   resulting from Dr. James Cockerill’s decision to prescribe

 8   Zyprexa to McClamrock in December 1998.   Additionally, while

 9   we agree with McClamrock that the court should have

10   conducted a similar analysis with respect to Dr. Warren

11   Williams’s decision to prescribe Zyprexa, we conclude that

12   this omission was harmless.   See Freedom Holdings, Inc. v.

13   Cuomo, 624 F.3d 38, 49 (2d Cir. 2010) (“We may affirm the

14   district court’s decision on any ground appearing in the

15   record.”).   Because McClamrock would have the burden of

16   establishing proximate cause at trial, see N.C. Gen. Stat.

17   § 99B-5(a), his failure to offer any evidence that Dr.

18   Williams was unaware that diabetes was a risk associated

19   with Zyprexa when he prescribed it warranted granting

20   summary judgment in favor of Eli Lilly, see Celotex Corp. v.

21   Catrett, 477 U.S. 317, 322-23 (2d Cir. 1986).

22



                                   3
 1       Moreover, there was indirect evidence suggesting that

 2   Dr. Williams was, in fact, aware of the risk of diabetes

 3   associated with Zyprexa.   Namely, there was evidence

 4   demonstrating that Dr. Cockerill was aware of the risk at

 5   issue when he prescribed Zyprexa but concluded that the

 6   drug’s benefits outweighed its risks in McClamrock’s case,

 7   and that Dr. Cockerill discussed his initial decision to

 8   prescribe Zyprexa to McClamrock with Dr. Williams.

 9       We have considered McClamrock’s remaining arguments on

10   appeal and find them to be without merit.   Accordingly, the

11   judgment of the district court is AFFIRMED.   Additionally,

12   McClamrock’s motion “seek[ing] his unenumerated rights of

13   jury trial per Amendment 7 and 14 in the US Constitution” is

14   DENIED.   To the extent that this motion is premised on

15   McClamrock’s assertion that he was deprived of his Seventh

16   Amendment right to a jury trial, that right is not violated

17   by an award of summary judgment where, as here, there are no

18   disputed issues of material fact.   See Benjamin v. Traffic

19   Exec. Ass’n E. R.R., 869 F.2d 107, 115 n.11 (2d Cir. 1989).

20
21                               FOR THE COURT:
22                               Catherine O’Hagan Wolfe, Clerk
23




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