### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-30589 Summary Calendar

F. PAUL AUTERY, Plaintiff - Appellant,
v. GLAXOSMITHKLINE, L.L.C., Defendant - Appellee

Appeal from the United States District Court for the Western District of Louisiana USDC No. 6:05-CV-982

Before JONES, DENNIS, and HAYNES, Circuit Judges. PER CURIAM: * After six years of litigation in the district court, summary judgment was granted against F. Paul Autery (“Autery”) in his wrongful death case against GlaxoSmithKline, L.L.C. (“GSK”) for the tragic suicide death of h is young son allegedly caused by the son’s discontinuation of Paxil, an anti-depressant manufactured by GSK. We AFFIRM. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Novembe r 5, 2 012 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-30589 Document: 00512043408 Page: 1 Date Filed: 11/05/2012No. 11-30589

Th e magistrate judge’s order, which was adopted by the district co u rt , chronicles well the long and somewhat c u mb e r some history of this case. We summarize very briefly. A pediatrician prescribed Paxil to Autery’s fifteen-year old son, Chris, who took it on and off for over a year without incident. Thereafter, Autery was arrested for aggravated assault of their six-year old neighbor. A few months later, Chris s t o p ped taking Paxil. Seven days later, he committed suicide. Autery contends that th e abrupt discontinuation of the Paxil caused Chris to commit suicide and that GSK failed to adequately warn of this danger. Autery filed this case in mid-2005. For the next six years, both the magistrate judge and the district judge took an active role in o v e r s e e i n g this litigation. O f particular note is that the district court appointed counsel for Autery, who was acting pro se f r o m p rison after his conviction on the assault charges, to assist him in responding to GSK’s motion for summary ju dgment. Through o u t this lengthy period, discovery motions were filed and determined, and Autery received at least one continuance of the pre-trial order. Ultimately, the district court denied Autery’s request for more discovery and concluded that, without an expert, Autery would be unable to prove causation. The parties agree that Louisiana law applies to th i s diversity case. Louisiana law requires th at a plaintiff suing under a products liability theory
prove causation. See, e.g., Stahl v. Novartis Pharm. Corp. , 283 F.3d 254, 260-61 (5th Cir. 2 0 0 2 )

. “Causation” in a pharmaceutical liability case involves both

“ge ner al c au s atio n” and “specific causation.” Wells v. Smithkline Beecham Co r p . , 601 F.3d 375, 377-78 (5th Cir. 2010)

. “General causation is whether a substance is capable of causing a particular injury or condition in the general population, while specific causation is whether a substance caused a particular individual’s injury.” Knight v. Kirby Inland Marine Inc. , 482 F.3d 347, 351 (5th Cir. 2007) (citation and quotation marks omitted). Here, the district court concluded that

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even if Autery could prove general causation, i.e. , that abrupt di s c o n tinuation of Paxil causes suicide, he could not substantiate a claim of s p e c ific causation, i.e. , that Paxil (or a failure to warn of danger associated with withdrawal from Paxil) caused Chris’s death. The record reveals that Chris’s doctor, Dr. Atwi, indicated that it appeared that Paxil was well-tolerated by Chris. Dr. Atwi testified that he discussed the warnings he was r e ceiving regarding potential increased suicide ideation in adolescents taking Paxil with Chris’s mother who decided to keep him on Paxil b ecause it appeared to be working. In the evidence before the distri c t c o u rt , neither Dr. Atwi, the prescrib i ng physician, nor Cindy Hayes, Chris’s treating psychologist, testified that Paxil, a lack of warnings, or Paxil’s discontinuation caused or contributed to Chris’s death. Despite knowing that he would have to have expert testimony to support his theory of GSK’s liability for Chris’s death, Autery never retained or identified a medical causation expert or proffered any expert testimony supporting specific causation to the district court. On appeal, Autery raises four issues: (1) whether the district court erred in refusing to grant an extension of time to file “a memorandum and supporting documents” objecting to the magistrate judge’s recommendation that summary judgment be granted; (2) whether summary judgment was improperly granted before discovery could be completed; (3) whether the district cou rt e rred in failing to grant a continuance of the expert report d e adline or a reset of the scheduling order; and (4) whether due process was violated when the dist ri c t court “preemptively den[ied a] court-appointed expert when expert testimony is

an essential element in this case?” Autery does not directly challenge the grant of summary judgment or support an a r gu m ent that he met his summary judgme n t b u r d en to provide some expert evidence in support of specific causation.

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The first th ree issues all fall under a category of requesting additional time for briefing and discovery. We review a district court’s decisions on suc h matters under an abuse of discretion standard. See, e.g., Transamerica Ins. Co.

v. Avenell , 66 F.3d 715, 721 (5th C ir . 1 9 9 5 ). Autery fails to point to any discovery from GSK that would have assisted him in proving specific causation. Nor do we see anything that additional time would do to cause Autery to procure
an expert that did not occur in the six years this matter w a s p e n di n g in the district court. There may be cases where unreasonably short deadlines prevent adequate discovery and obtaining of evidence; this case is not one of them—far from it. We conclude that the district court did not abuse its dis c r e ti on in denying the various extensions Autery references, and we resolve the first three issues against him. In his final issue, Autery seeks for the first time on appeal to raise a constitutional due pro c e s s argument to the effect, apparently, that a district court is required sua sponte to appoint (and use government funds to pay for) an expert for a plaintiff in an ordinary civil tort lawsuit. At best for Autery, plain

error review would apply to this unpreserved argument. See Crawford v. Falcon Drilling Co. , 131 F.3d 1120, 1123 (5th Cir. 1997) (applying plain-error review to unpreserved error in a civil case). He points to no case p r o vi di n g for such a “right to experts” in a case like this one. As such, any imagined error could not 1 conceivably be called “plain.” We resolve the fourth issue against Autery. We recognize the difficulty of a grieving father’s quest to find answers to the cause of a tragic circumstance while incarcerated. However, the

Autery cit es an Eighth Circ uit cas e to sup port his argum ent that he is enti tle d to the 1 app oint me nt of an expe rt. Smi th v. Jenki ns , 919 F.2d 90 (8th Cir. 1990)

. That cas e addres se d the pos sib ility of app ointing e xpertsund er Fede ral Rule of Evidenc e 706 in a cas e wh ere an inm ate clai me d a violat ion of his Eighth Ame ndm ent right s due to del ibe r a t ely indiff ere nt me dic al care

. Id. at 92. The cas e falls far sho rt of sugges ting thatappo intm ent of expert s is requ ired suas

ponte in a no n-c ivil right s tort suit suc h as thison e. 4 Case: 11-30589 Document: 00512043408 Page: 4 Date Filed: 11/05/2012No. 11-30589

commendable and thorough efforts of the magistrate a n d di s trict judges gave Autery a full opportunity to respond appropriately to GSK’s summary judgment, yet he failed to do so. AFFIRMED.

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