Evans v. Johnson and Johnson Company

Filing 169

MEMORANDUM. Signed by Judge Richard G. Andrews on 5/8/2018. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
AUGUSTUS HEBREW EVANS, JR.,
Plaintiff,

v.

Civil Action No. 14-1316-RGA

JOHNSON AND JOHNSON COMPANY :
et al.,
Defendants.

Augustus Hebrew Evans, Jr., James T. Vaughn Correctional Center, Smyrna,
Delaware, Pro Se Plaintiff.
Todd C. Schiltz, Esquire, Drinker Biddle & Reath LLP, Wilmington, Delaware, and
Daniel J. Brown, Esquire, and Hayley J. Reese, Esquire, Mccarter & English, LLP,
Wilmington, Delaware, Counsel for Defendants.

MEMORANDUM

g,

2018
May
Wilmington, Delaware

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Plaintiff Augustus Hebrew Evans, Jr., an inmate at the James T. Vaughn
Correctional Center in Smyrna, Delaware, who appears pro se, filed this action in the
Superior Court of the State of Delaware in and for Kent County, Case No. K14C-09-028
RBY, raising claims under Delaware law. The matter was removed to this Court on
October 16, 2014. (D. I. 1). The First Amended Complaint is the operative pleading.
(D.I. 44). Before the Court are numerous motions filed by Plaintiff. (D.I. 91, 93, 96, 100,
132, 139, 146, 158).

BACKGROUND
The First Amended Complaint alleges negligence, negligent misrepresentation,
breach of warranty, breach of implied warranty of merchantability, breach of implied
warranty of fitness for a particular purpose, breach of express warranty, and fraud by
concealment arising out of Defendants' development, marketing, and sale of the drug
commonly referred to as Risperdal. (D.I. 44). Upon motion, Plaintiff was provided
counsel in the early stages of this case. (See D.I. 13). In October 2017, Plaintiff filed a
motion to proceed prose. The motion was granted on November 6, 2017, and
Plaintiffs counsel withdrew. (D.I. 89). At that time, the parties were advised that the
case would proceed on the deadlines set forth in the Court's July 28, 2017 order,
including a discovery cutoff deadline of December 15, 2017, and a dispositive motion
deadline of March 30, 2018. (D.I. 82). Since that time Plaintiff has filed a number of
motions, seeking extensions of time and discovery, many of them complaining about
defense counsel's tactics.

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DISCOVERY
On November 20, 2017, Plaintiff moved for counsel to forward "all relevant
discovery" to Plaintiff. (D.I. 91 ). Counsel states that discovery responses have been
forwarded to Plaintiff. (D.I. 97). Counsel also received in excess of 1,500,000 pages on
a hard drive. Counsel objects to printing the pages, both as being prohibitively
expensive and, implicitly, as being beyond Plaintiff's capacity, given his living situation,
to store and process. Plaintiff recognizes this reality, requesting that the Court prevent
"the game they played in sending million documents to choose from with counsel." (D.I.
93 at 2). It is not discharged counsel's job to cull the "relevant discovery" from the
million plus pages provided by Defendants. Thus, I consider counsel's provision of
discovery responses without the million and a half pages to discharge their obligation to
Plaintiff. The motion (D.I. 91 ), therefore, will be dismissed as moot in part and denied in
part.
In addition, Defendants oppose the motion on the grounds that Plaintiff has failed
to abide by the Rules of this Court, requiring the production of confidential documents to
Plaintiff will violate the terms of the stipulated protective order (D.I. 79), and their
production would result in an undue burden that is not proportional to the needs of this
case. (D.I. 99). Plaintiff responds that, because he proceeds prose, he should be held
to less stringent standards, the discovery is relevant to the needs of the case, a hearing
is necessary to resolve this issue, and a protective order could be entered to maintain
the confidentiality of the documents. (D.I. 102).

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Court filings indicate that on May 31, 2017, Defendants were ordered to narrow
their proposed production of documents to a more reasonable set. (See D.I. 111 at Ex.
2). The Court is unable to discern from the docket in this case whether this narrowing
occurred, although there is evidence that the parties were working toward it while
Plaintiff had counsel. (D.I. 77 at 1-2). When reviewing Plaintiff's filings, it appears the
discovery he seeks consists of scientific studies or statistical reports regarding males
age 40 to 50, that compare the lengths of use of Risperdal and typical injuries
associated with its use. (D.I. 92 p.2, D.I. 102 at p.2; D.I. 107 at p.1; D.I. 142 at p.2; D.I.
150 at p.1 ).
Defendants scheduled Plaintiff's deposition to take place on December 14, 2017.
(D.I. 110). Plaintiff opposed on the grounds that on May 31, 2017, Defendants were
ordered to narrow their proposed production of documents to a more reasonable set,
and it is impossible for him to proceed with his case when he is unable to obtain
relevant documents. (D.I. 110, 111, 113). The Court ordered that Plaintiff's deposition
be held in abeyance pending a ruling on his opposition. (D.I. 114).
Plaintiff was provided competent counsel who ably represented him, yet he opted
to proceed prose, which is his right. Nevertheless, his decision has consequences.
The production of one million plus pages of documents makes it difficult, if not
impossible, to provide him paper documents. This is especially true in light of prison
rules and regulations regarding the storage of documents in an inmate's cell. Nor does
it seem feasible to produce the voluminous documents at a location for Plaintiff to
personally review them to determine if any of the documents are relevant to the issues

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he raises. Plaintiff seems most interested in the production of scientific studies or
statistical reports regarding males age 40 to 50, that compare lengths of use of the
Risperdal and typical injuries associated with its use. Given that Plaintiff has identified
with some specificity what he is seeking, it seems like a reasonable first step to find out
whether such discovery exists. Defendants will be ordered to identify and describe any
responsive discovery, including the length of any such discovery. At the same time,
Defendants may address any confidentiality concerns and how those concerns may be
resolved.
Finally, Plaintiff has filed numerous motions for conferences or hearings "to bring
order to this case" and to extend deadlines. (D.I. 93, 100, 139, 150, 151 ). Plaintiff, who
is incarcerated, indicates that he could participate by telephone, video, or in person.

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Plaintiff argues that Defendants will "fully exploit the fact that he is incarcerated," and,
that at the time he filed the request, he had received "zero discovery from prior

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counsel." (D.I. 93). Plaintiff seeks to amend the scheduling deadlines on the grounds
that it is impossible for him to abide by the schedule "due to the elephant in the room."
(D. I. 100). Defendants oppose, but indicate they will participate in a conference if it
would be helpful to the Court. (D.I. 143).

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Plaintiff's motions for hearings/conferences will be denied, but the motion to

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amend deadlines will be granted. In light of the posture of this case, the Court will
cancel the pretrial conference and trial dates, to be rescheduled once the Court is
satisfied the discovery issue regarding the production of scientific studies or statistical

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reports, as discussed above, has been addressed and resolved, and Plaintiff's
deposition has taken place. 1

MOTION FOR APPOINTMENT AND/OR FUNDS FOR EXPERT
Plaintiff seeks funds to obtain expert services "necessary for adequate
representation of the facts and science of complexD residual affects of using the drug
Risperdal" pursuant to 18 U.S.C. § 3006A(e)(1) or other statutes. (D.I. 96). Plaintiff
argues that the services of an expert are necessary to mount a plausible finding that the
use of Risperdal is the direct cause of injuries sustained, and, that without such services
and the funds for such services, Plaintiff's case will be severely prejudiced. (Id.).
Defendants oppose the motion on the grounds that Plaintiff has failed to meet his
burden to establish he is entitled to the relief he seeks and, further, well-established
case law provides that Plaintiff is not entitled to the appointment of an expert witness.
(D.I. 101 ). Plaintiff replies that Defendants' opposition presents some irrelevant facts,
and he cannot compete with the lawyers and he is severely prejudiced without
appointment and/or funds for an expert. (D.I. 108).
The criminal procedure statute relied upon by Plaintiff is inapplicable to this civil
matter. Federal Rule of Evidence 706 provides that a District Court may "order the
parties to show cause why expert witnesses should not be appointed." Fed. R. Evid.
706(a). A court-appointed expert is entitled to compensation either "from any funds that

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To be clear, if Defendants want to take Plaintiff's deposition, they do not need to wait
for the resolution of Plaintiff's discovery requests. In theory, at least, Plaintiff's
deposition might be quite useful in narrowing the issues in the case.

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are provided by law'' or, from "the parties in the proportion and at the time that the court
directs -- and the compensation is then charged like other costs." Fed. R. Evid. 706(c).
As explained by the Third Circuit, "[w]e understand that some courts have held
that Rule 706 can be used to appoint an expert for an indigent civil litigant and apportion
the costs of such expert to the other side." Born v. Monmouth Cnty. Correct. Inst., 458
F. App'x 193, 197-98 (3d Cir. 2012) (citing Ledford v. Sullivan, 105 F.3d 354, 360 (7th
Cir. 1997); Steele v. Shah, 87 F.3d 1266, 1271 (11th Cir. 1996); McKinney v. Anderson,
924 F.2d 1500, 1511 (9th Cir. 1991 ), vacated and remanded on other grounds sub nom.

Helling v. McKinney, 502 U.S. 903 (1991); Websterv. Sowders, 846 F.2d 1032, 103839 (6th Cir. 1988); United States Marshals Serv. v. Means, 741 F.2d 1053, 1058 (8th
Cir. 1984) ). However, the Third Circuit has never joined in these holdings. Id. (citing

Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987) (finding no statutory authority
for courts to pay expert witness fees of indigent civil litigants; not mentioning Fed. R.
Evid. 706)). In addition, were I to use Rule 706 to appoint an expert witness, the
exercise of such authority is in my discretion. Id. at 198 (citing Hannah v. United States,
523 F.3d 597, 601 n. 2 (5th Cir. 2008); Means, 741 F.2d at 1059 (noting that litigants
should be tasked with paying expert fees for their indigent opponents only in
"compelling circumstances")).
After reviewing Plaintiff's filings, I determine that Plaintiff has failed to date to
make a sufficient showing to warrant appointment of an expert witness. Therefore, the
motion (D.I. 96) will be denied.

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LETTER/MOTION FOR FUNDS FOR DEPOSITIONS
AND TO UTILIZE THE COURTHOUSE
Plaintiff requests funds for depositions and to use the courthouse. (D.I. 132).
Defendants oppose on the grounds that Plaintiff has not established he is entitled to this
relief, and it is clear from case law that Plaintiff is responsible for his own litigation
expenses. (D.I. 140). Plaintiff responds that he has "absolutely no discovery,"
Defendants manipulate proceedings to their advantage, and he is unable to get the
statistical data of males he needs. (D.I. 142).
"There is no provision [under the in forma pauperis statute, 28 U.S.C. § 1915,] for
the payment by the government of the costs of deposition transcripts, or any other
. litigation expenses, and no other statute authorizes courts to commit federal monies for
payment of the necessary expenses in a civil suit brought by an indigent litigant."

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Tabron v. Grace, 6 F.3d 147, 159 (3d Cir. 1993). Nor do I see any reason at this time to

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exercise any "inherent equitable powers" to provide any relief to Plaintiff. 2 Accordingly,

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the motion (D.I. 132) will be denied.

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MOTION TO STAY ALL PROCEEDINGS
On February 14, 2018, Plaintiff filed a motion to stay all proceedings on the
grounds that the docket is very confusing, since the depositions have been held in
abeyance several deadlines have come and gone, and there still is no adequate
discovery. (D.I. 146). Plaintiff seeks a stay until "order is established," and all pending

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One exception is that, if Defendants depose Plaintiff, I request that they provide him
with a complete transcript of the deposition.

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motions are resolved. (Id.). Defendants oppose a stay, but acknowledge that the
scheduling order may require amendment. (D.I. 148).
The Court does not find it necessary to stay the case. Therefore, the motion (D.I.
146) will be denied.
MOTION FOR DAUBERT HEARING
On April 9, 2018, Plaintiff filed a motion for a Daubert hearing to resolve the issue
of the admissibility of Defendants' proposed expert testimony, as set forth in an expert
report. (D.I. 158). Plaintiff contends that the expert opinion is inadmissible. (Id.).
Defendants oppose the motion on the grounds that the request is untimely, their expert
is qualified, he applied a reliable methodology, and the expert is not offered as an
expert on causation. (D.I. 162).
Should this matter proceed to trial, Defendants plan to present the expert
testimony of psychiatrist Harvey M. Hammer, M.D. (See D.I. 129). Defendants argue
that Plaintiff challenges Dr. Hammer's conclusions rather than his methodology and this
is more properly addressed during cross-examination. In addition, Defendants note that
they did not rely upon Dr. Hammer's opinions in support of their motion for summary
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"Daubert requires that, when faced with a proffer of expert testimony, a trial judge
determine 'whether the expert is proposing to testify to (1) scientific knowledge that (2)
will assist the trier of fact to understand or determine a fact in issue."' Walker v.

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I reviewed the motion for summary judgment and the accompanying brief (D.I. 152 &
153), and it appears to be the case that Dr. Hammer's opinions are irrelevant to the
summary judgment motion.

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Gordon, 46 F. App'x 691, 694 (3d Cir. 2002) (quoting Daubert v. Merrell Dow Pharm.,
509 U.S. 579, 592 (1993)). Under Daubert, trial courts are required to apply a reliability
analysis to an expert's opinion. An opinion is "reliable" if it is based on the "methods
and procedures of science" rather than on "subjective belief or unsupported
speculation." Id. (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 (1994) and

Daubert, 509 U.S. at 590). The role of the Court is simply to evaluate whether the
methodology utilized by the expert is reliable, i.e., whether, when correctly employed,
that methodology leads to testimony helpful to the trier in fact. Id. (citing Daubert, 509
U.S. at 591-93 (noting that the testimony must "assist the trier of fact to understand the

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evidence or to determine a fact in issue" and that the trial court's determination "entails
a preliminary assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid and of whether that reasoning or methodology properly
can be applied to the facts in issue")).
In his motion, Plaintiff requests an "immediate" hearing. The request is
premature. It may never need to be addressed, but if it needs to be addressed, it ought
to be at a later stage of the case, that is, after the conclusion of discovery and the

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dismissed without prejudice to renew, which Plaintiff may do after resolution of the

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summary judgment motion by filing a one-page letter renewing the request on the basis

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of the already-submitted briefing.

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resolution of the summary judgment motion. Accordingly, the motion (D.I. 158) will be

CONCLUSION

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Based upon the above discussion, the Court will: (1) deny Plaintiff's motion for
prior counsel to turn over discovery (D.I. 91 ); (2) deny Plaintiff's motion for appointment
and/or funds for expert (D.I. 96); (3) grant Plaintiff's letter/motion to amend scheduling
deadlines (D.I. 100); (4) deny Plaintiff's motion for funds for depositions and to utilize
the courthouse (D.I. 132); (5) deny Plaintiff's motion for a conference and adjusted
schedule of case (D.I. 139); (6) deny Plaintiff's motion to stay (D.I. 146); (7) dismiss
without prejudice to renew Plaintiffs motion for an immediate Daubert hearing (D.I.
158); (8) order Defendants to identify and describe (including the number of pages), if
they exist, scientific studies or statistical reports regarding males age 40 to 50, that
compare lengths of use of Risperdal and typical injuries associated with its use, as
sought by Plaintiff, and address any confidentiality concerns Defendants may have and
how those concerns may be resolved; and (9) cancel the final pretrial conference and
trial, to be rescheduled.
An appropriate Order will be entered.

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