Evans v. Johnson and Johnson Company

Filing 189

MEMORANDUM. Signed by Judge Richard G. Andrews on 12/28/2018. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
AUGUSTUS HEBREW EVANS, JR.,
Plaintiff,
Civil Action No. 14-1316-RGA

V.

JOHNSON AND JOHNSON COMPANY:
et al.,
Defendants.

MEMORANDUM
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.
(0.1. 44). Before the Court are Defendants' motion for summary judgment and Plaintiff's
proposed modification to protective order/conference request. (D.I. 152, 181 ).
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 0.1. 13). In October 2017, Plaintiff filed a
motion to proceed prose. The motion was granted on November 6, 2017, and

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Plaintiff's counsel withdrew. (D.I. 89). At that time, the parties were advised that the
case would proceed on the deadlines set forth in its July 28, 2017 order, including a
discovery cutoff deadline of December 15, 2017, and a dispositive motion deadline of
March 30, 2018. (0.1. 82). Several discovery motions were filed prior to the expiration
of the discovery deadline.
Motion for Summary Judgment. On March 29, 2018, Defendants filed a
motion for summary judgment raising several grounds in support thereof. 1 (D.l 152).
When the summary judgment motion was filed, the Court had not yet ruled on the
discovery motions. The Court ruled on the discovery motions on May 8, 2018 and
noted that deadlines were extended pending the resolution of discovery issues. (0.1.
169, 170). As a result, Plaintiff was not deposed until June 2018. (D.I. 172). Also, in
June 2018 Defendants.produced to Plaintiff scientific studies and/or statistical reports
regarding the use of Risperdal and typical injuries associated with its use. (0.1. 173,
177). Because discovery was not complete when Defendants filed their motion for
summary judgment in March 2018, the.Court will dismiss the motion without prejudice to
renew so that subsequently produced relevant discovery may be included in dispositive
motions filed by the parties.

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One ground raised by Defendants in support of their motion for summary judgment is
that Plaintiff's claim fails for lack of a required expert witness. Defendants cite to
several cases affirming entry of summary judgment because a pro se plaintiff lacked
expert testimony. (See 0.1. 161 at 2; but see Brathwaite v. Phelps, 734 F. App'x 114
(3d Cir. 2018) (Tabron factors indicated the need for appointed counsel especially once
district court determined expert testimony was required for pro se plaintiff to make his
Eighth Amendment claims). Of course, I did appoint Plaintiff counsel, but he later
dismissed appointed counsel.
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Proposed Modification to Protective Order/Conference Request. On July 7,
2017, the Court granted the parties' proposed stipulated protective order. (D.I. 78, 79).
Plaintiff was represented by counsel at the time. On July 17, 2018, Plaintiff filed a
proposed modification to the protective order, and Defendants responded and objected.
(Doi. 181, 182). On August 9, 2018, Plaintiff filed an agreement to the stipulated
protective order and states that he agrees to the stipulated protective order signed by
the Court on July 7, 2017. (D.I. 184). In light of this filing, the Court finds that Plaintiff's
proposed modification to protective order (D.I. 181) is moot.
Based upon the above discussion, the Court will: (1) dismiss Defendants' motion
for summary judgment (D.I. 152) without prejudice to renew; (2) dismiss as moot
Plaintiff's proposed modification to protective order (D.I. 181); and (3) amend dispositive
motion deadlines. An appropriate Order will be entered.

'JK',

2018
December
Wilmingto~ware

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