Evans v. Johnson and Johnson Company

Filing 212

MEMORANDUM. Signed by Judge Richard G. Andrews on 5/24/2019. (nms) Modified on 5/28/2019 (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
1.

Introduction. 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. 197,
203, 206, 207, 208).
2.

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 0.1. 13). In
October 2017, Plaintiff filed a motion to proceed prose. The motion was granted on

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November 6, 2017, and Plaintiff's counsel with~rew. (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. (D.I. 82).
3.

On January 18, 2018, the Court extended the deadlines and at the same

time ordered Defendants to produce Clinical Study Reports ("CSRs") identified in their
Submission Identifying Risperdal Studies Involving Males ages 40 to 50. (See D.I. 194).
Plaintiff was given until May 20, 2019 to review the CS Rs in a manner determined and
arranged by Delaware Department of Correction personnel at the VCC. Plaintiff moves
for clarification and reconsideration of the order. (D .I. 197). He also requests an
additional 30 days to review the materials. (D.I. 206). In addition, Plaintiff has filed
what appears to be a motion for reconsideration to obtain prior discovery requests and
asks the Court to impose sanctions against Defendants. (D.I. 203). He once again
moves for appointment of an expert and/or funds for an expert. (D.I. 207). Finally, he
asks the Court to set a scheduling conference. (D.I. 208).
4.

Motion For Clarification And For Reconsideration. When the Court

ordered Defendants to produce the CSRs for Plaintiff's review, it did so based upon
Defendants' representations that the discovery would fill approximately six banker's
boxes. (See D.I. 173 at 14). Plaintiff seeks clarification because it was not clear if
Defendants would produce 12,000 pages of documents or the six banker's boxes. (D.I.
197 at 1). A few days after Plaintiff filed his motion, Defendants advised the Court that
they were providing eight boxes of documents. (D.I. 198). Plaintiff's motion for
clarification will be dismissed as moot.

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5.

Plaintiff also seems to move for reconsideration to obtain responses to

specific discovery requests and seeks sanctions for Defendants' alleged failure to
produce discovery. (D.I. 197, 203). Defendants oppose the motions.
6.

The purpose of a motion for reconsideration is to "correct manifest errors

of law or fact or to present newly discovered evidence." Max's Seafood Cafe ex rel.
Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). "A proper Rule 59(e)

motion ... must rely on one of three grounds: (1) an intervening change in controlling
law; (2) the availability of new evidence; or (3) the need to correct clear error of law or
[to] prevent manifest injustice." Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010).
7.

The Court has reviewed Plaintiff's motion and the January 18, 2019

Memorandum Order. In doing so, the Court finds that Plaintiff has failed to demonstrate
any of the grounds necessary to warrant a reconsideration of that order. To the extent
Plaintiff moves for reconsideration of prior orders ruling on discovery motions, and in
particular the Court's May 8, 2018 Order (see 0.1. 170), the time to do so has long
passed. See Fed. R. Civ. P. 59(e) and D. Del. LR 7.1.5 (motions for reargument filed
pursuant to Fed. R. Civ. P. 59(e) shall be filed in accordance with Rule 59(e) time limits
(i.e., no later than 28 days after entry). Finally, Plaintiff's motion for sanctions is

frivolous. According, the Court will deny Plaintiff's motions for reconsideration and for
sanctions. (D.I. 197, 203).
8.

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 complex[] residual affects of using the drug Risperdal" pursuant to 18 U .S.C.
§ 3006A(e)(1) or "feasible statutes." (D.I. 207). Plaintiff previously filed an almost

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identical motion. (See 0.1. 96). That motion was denied on May 8, 2018. (See 0.1.
169, 170).
9.

The instant motion will be denied for the reasons set forth in the May 8,

2018 Memorandum and Order. (See id.)
10.

Miscellaneous Motions. Plaintiff seeks an extension of 30 days up to

and including June 20, 2019, to review the CSRs. (0.1. 206). He also asks the Court to
set a "conference hearing." (0.1. 208). Plaintiff's motion for an extension of 30 days to
review the CSRs will be granted. Dispositive motion deadlines will also be amended.
Plaintiff's motion for a "conference hearing" will be denied in light of the posture of this
case.
11.

Conclusion. Based upon the above discussion, the Court will: (1)

dismiss as moot Plaintiff's motion for clarification (0.1. 197); (2) deny Plaintiff's motions
for reconsideration (0.1. 197, 203); (3) deny Plaintiff's motion for sanctions (0.1. 203);
(4) grant Plaintiff's motion for an extension of time to review CSRs (0.1. 206); (5) extend
the dispositive motion deadline; (6) deny Plaintiff's motion for appointment and/or funds
for expert (0.1. 207); and (7) deny Plaintiff's motion for a "hearing conference" (0.1. 208).
A separate order shall issue.

Zif ,

May
2019
Wilmington, Delaware

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