THOMASSON et al v. AIR & LIQUID SYSTEMS CORPORATION et al

Filing 273

OPINION. Signed by Chief Judge Jerome B. Simandle on 4/9/2015. (drw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CLAIRE THOMASSON,
individually, and as
administratrix of the Estate
of Harold Thomasson,

HONORABLE JEROME B. SIMANDLE

Civil Action
No. 13-1034 (JBS/JS)

Plaintiff,
OPINION

v.
AIR & LIQUID SYSTEMS
CORPORATION et al.,
Defendants.
APPEARANCES:
Kardon A. Stolzman, Esq.
Robert Gitelman, Esq.
NAPOLI BERN RIPKA SHKOLNIK & ASSOCIATES, LLP
350 Fifth Avenue, Suite 7413
New York, NY 10118
Attorneys for Plaintiffs

Kathleen M. Agnelli, Esq.
MARIN GOODMAN
40 Wall Street, 57th Floor
New York, NY 10005
-andFrederic Goodman, Esq.
500 Mamaroneck Ave, Suite 501
Harrison, NY 10528
Attorneys for Defendant Fluor Corporation
Jordan David Beltz, Esq.
SEGAL MCCAMBRIDGE SINGER & MAHONEY LTD
15 Exchange Place, Suite 1020
Jersey City, NJ 07302
-andTalene Nicole Megerian, Esq.
SEGAL MCCAMBRIDGE SINGER & MAHONEY LTD
850 Third Avenue, Suite 1100
New York, NY 10022
Attorneys for Defendant Mannington Mills, Inc.

Michael Joseph Block, Esq.
Mary S. Cook, Esq.
WILBRAHAM, LAWLER & BUBA
24 Kings Highway West
Haddonfield, NJ 08033
Attorneys for Defendant Air & Liquid Systems Corporation
a/k/a Buffalo Pumps, Inc.
David Schuyler Blow, Esq.
SEGWICK LLP
One Newark Center
1085 Raymond Boulevard, 16th Floor
Newark, NJ 07102
Attorney for Defendants Borgwarner Morse Tec, Inc. and
Foster Wheeler Energy Corporation
Benjamin Bucca, Jr., Esq.
90 Livingston Ave.
New Brunswick, NJ 08901
-andJoseph Ira Fontak, Esq.
LEADER & BERKON LLP
630 Third Avenue, 17th Floor
New York, NY 10017
Attorneys for Defendant IMO Industries, Inc.
Angela Coll Caliendo, Esq.
KELLEY JASONS MCGOWAN SPINELLI HANNA & REBER, LLP
Two Liberty Place, Suite 1900
50 S. 16th Street
Philadelphia, PA 19102
Attorney for Defendants FMC Corporation and MCIC Inc. f/k/a
The McCormick Asbestos Company
Theodore M. Eder, Esq.
SEGAL MCCAMBRIDGE SINGER & MAHONEY LTD
850 Third Avenue, 11th Floor
New York, NY 10022
-andAlexander Charles Schaffel, Esq.
MCGIVNEY & KLUGER
23 Vreeland Road, Suite 220
Florham Park, NJ 07932
Attorneys for Defendant Flowserve Corporation

2

Joseph Anthony Gallo, Esq.
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP
33 Washington Street, 18th Floor
Newark, NJ 07102
-andPaul C. Johnson, Esq.
MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, PA
Woodland Falls Corporate Park
200 Lake Drive East, Suite 300
Cherry Hill, NJ 08002
Attorneys for Defendant Warren Pumps, LLC
John C. Garde, Esq.
MCCARTER & ENGLISH, LLP
Four Gateway Center
100 Mulberry Street
P.O. Box 652
Newark, NJ 07101
Attorney for Defendant Parker Hannafin Corporation
Michael V. Gilberti, Esq.
23 Vreeland Road, Suite 220
Florham Park, NJ 07932
-andMichael E. Waller, Esq.
KIRKPATRICK & LOCKHART PRESTON GATES ELLIS
One Newark Center, 10th Floor
Newark, NJ 07102
Attorneys for Defendant Crane Co.
Joanne Hawkins, Esq.
SPEZIALI, GREENWALD & HAWKINS P.C.
1081 Winslow Road
Williamstown, NJ 08094
Attorney for Defendant General Electric Company
Richard V. Jones, Esq.
LAW OFFICES OF ROGER V. JONES, LLP
4 Franklin Avenue, Suite 4
Ridgewood, NJ 07450
Attorney for Defendant Metropolitan Life Insurance Company

3

Christopher J. Keale, Esq.
SEGWICK LLP
One Newark Center
1085 Raymond Boulevard, 16th Floor
Newark, NJ 07102
Attorney for Defendants Borgwarner Morse Tec, Inc. f/k/a
Borg-Warner Corporation
Christopher S. Kozak, Esq.
LANDMAN CORSI BALLAINE & FORD PC
One Penn Center
1617 John F. Kennedy Blvd., Suite 955
Philadelphia, PA 19103
Attorney for Defendant Sequoia Ventures Inc. f/k/a Bechtel
Corp.
Lisa Pascarella, Esq.
PASCARELLA DIVITA LINDENBAUM & TOMASZEWSKI, PLLC
2137 Route 35, Suite 290
Holmdel, NJ 07733
Attorney for Defendants Trane US, Inc. f/k/a American
Standard, Inc., Ingersoll-Rand Company, and Crane Co.
W. Matthew Reber, Esq.
KELLEY JASONS MCGOWAN SPINELLI HANNA & REBER, LLP
Two Liberty Place, Suite 1900
50 S. 16th Street
Philadelphia, PA 19102
Attorney for Defendant FMC Corporation
Steven Frederik Satz, Esq.
HOAGLAND LONGO MORAN DUNST & DOUKAS
40 Paterson Street
New Brunswick, NJ 08901
Attorney for Defendants Borgwarner Morse Tec, Inc.,
Mannington Mills, Inc., and Goulds Pump, Inc.
Michael A. Tanenbaum, Esq.
SEDGWICK LLP
One Newark Center
1085 Raymond Boulevard, 16th Floor
Newark, NJ 07102
Attorney for Defendants CBS Corporation f/k/a Viacom Inc.
f/k/a Westinghouse Electric Corp., General Electric
Company, and Foster Wheeler Energy Corporation

4

SIMANDLE, Chief Judge:
INTRODUCTION
This action arises from the late Harold Thomasson’s alleged
contraction of mesothelioma as the result of his exposure to
asbestos during his service in the United States Navy aboard two
vessels between 1952 and 1954 and his work as a maintenance
worker and pipefitter for various employers between 1954 and
1985.1
This matter comes before the Court upon a motion to dismiss
by Defendant Metropolitan Life Insurance Company (“MetLife”)
[Docket Item 228] and 19 unopposed motions for summary judgment
by the following Defendants: Goulds Pumps, Inc. (“Goulds”)
[Docket Items 225]; Warren Pumps, LLC (“Warren”) [Docket Item
226]; Flowserve Corporation (“Flowserve”) [Docket Item 227];
Ingersoll-Rand Company (“Ingersoll-Rand”) [Docket Item 229];
Trane US, Inc. (“Trane”) [Docket Item 230]; FMC Corporation
(“FMC”) [Docket Item 231]; MCIC Inc. (“MCIC”) [Docket Item 232];
Mannington Mills, Inc. (“Mannington Mills”) [Docket Item 239];
Sequoia Ventures f/k/a Bechtel Corporation (“Bechtel”) [Docket
Item 240]; Parker Hannafin Corporation (“Parker Hannafin”)
[Docket Item 241]; Crane Co. (“Crane”) [Docket Item 242]; IMO

1

This suit was initially filed by Plaintiffs Harold and Claire
Thomasson. The Amended Complaint, filed after Mr. Thomasson’s
death, names as the plaintiff Claire Thomasson, individually,
and as administratrix of the Estate of Harold Thomasson.
5

Industries Inc. (“IMO”) [Docket Item 243]; Air & Liquid Systems
Corporation (“Air & Liquid”) [Docket Item 244]; Borgwarner Morse
Tec, Inc. (“Borgwarner”) [Docket Item 245]; Fluor Corporation
(“Fluor”) [Docket Item 246]; General Electric Company (“General
Electric”) [Docket Item 247]; Foster Wheeler Energy Corporation
(“Foster Wheeler”) [Docket Item 248]; CBS Corporation (“CBS”)
[Docket Item 249]; and BW/IP Inc. (“BW/IP”) [Docket Item 250].2
With the exception of MetLife, Defendants uniformly contend in
the pending motions for summary judgment that Plaintiff has
failed to present any evidence that Mr. Thomasson was exposed to
any asbestos or asbestos-containing product manufactured or
supplied by Defendants. As such, Defendants assert that
Plaintiff’s claims fail as a matter of law for failure to adduce
evidence of causation. The Court agrees, and Plaintiff has
offered no argument to the contrary.
MetLife argues in its motion to dismiss that dismissal is
appropriate because Plaintiff failed to comply with the Court’s
orders regarding service of the complaint and service of

2

Four of the 19 motions for summary judgment have been withdrawn
or are moot due to voluntary dismissal. Defendant Ingersoll-Rand
withdrew its motion for summary judgment [Docket Item 229] by
letter dated February 13, 2015 [Docket Item 259]. The motions
for summary judgment by Defendants Flowserve [Docket Item 227]
and BW/IP [Docket Item 250] are moot as the result of a
stipulation of dismissal entered on January 20, 2015 [Docket
Item 253]. Similarly, Crane’s motion for summary judgment
[Docket Item 242] is moot as the result of a stipulation of
dismissal entered on March 17, 2015. [Docket Item 262.]
6

Plaintiff’s expert report. Alternatively, MetLife seeks to
exclude the report of Plaintiff’s purported medical expert, Dr.
Hawey Wells, Jr.
For the reasons discussed below, the Court will grant
Defendants’ motions for summary judgment. The Court will deny
MetLife’s motion to dismiss without prejudice to filing an
appropriate motion by no later than sixty (60) days from today’s
date at the close of a short period of additional discovery.
BACKGROUND
A. Facts
The Court accepts as true the following undisputed facts.3
Mr. Thomasson served as a 3rd class metal worker aboard two Navy
vessels: the U.S.S. Fitch (DD-462) from February 20, 1952 to
November 15, 1953 and the U.S.S. Macomb (DD-458) from November
15, 1953 to May 22, 1954. Thereafter Mr. Thomasson worked as a
maintenance worker and/or pipefitter at PSE&G in Camden, New
Jersey from 1954 to 1955; at New York Shipyard from 1955 to
1956; at Paulsboro New Jersey Refinery in Gibbstown, New Jersey

3

As Defendants’ motions for summary judgment are unopposed,
Plaintiff has submitted neither a responsive statement of
material facts, nor a supplemental statement of disputed
material facts. Accordingly, the Court deems the facts as set
forth in Defendants’ various 56.1 statements undisputed for
purposes of the instant summary judgment motion. L. Civ. R.
56.1(a) (“[A]ny material fact not disputed shall be deemed
undisputed for purposes of the summary judgment motion.”).
7

from 1956 to 1958; at a DuPont Plant in Trenton, New Jersey from
1958 to 1960; and at Monsanto Chemical from 1960 to 1985.
Mr. Thomasson was not deposed in this matter prior to his
death. Plaintiff has offered two of Mr. Thomasson’s former coworkers to give deposition testimony regarding Mr. Thomasson’s
alleged exposure to asbestos at the Monsanto Chemical plant in
Bridgeport, New Jersey: Philip Tomeo and Leroy Griffin, Jr.
Plaintiff has proffered no evidence regarding Mr. Thomasson’s
alleged exposure to asbestos at other worksites.
The only moving Defendants for which there is any evidence
that Mr. Thomasson could have been exposed to their products are
Goulds and Bechtel.4 Mr. Tomeo and Mr. Griffin both recalled
pumps manufactured by Goulds being present at the Monsanto
facility. However, neither could say whether Mr. Thomasson ever
worked on or near a Goulds pump during his time at Monsanto as
opposed to a pump manufactured or supplied by any other company.
Nor could Mr. Tomeo or Mr. Griffin testify that Mr. Thomasson
ever worked on or near any asbestos-containing product
manufactured or supplied by Goulds.
As to Bechtel, Mr. Tomeo and Mr. Griffin both testified
that they believed that Bechtel built the Monsanto Plant.

4

The Court need not discuss the evidence as to Crane or
Ingersoll-Rand because the motions for summary judgment by these
defendants are either withdrawn or moot.
8

However, Bechtel’s own records refute this suggestion, and
Bechtel’s investigation failed to identify any Bechtel
construction projects at the Monsanto Chemical plant in
Bridgeport, New Jersey between 1945 and 1985. There is no other
evidence in the record that Bechtel manufactured, supplied, or
installed any asbestos or asbestos-containing product to which
Mr. Thomasson could have been exposed to during his time at
Monsanto’s Bridgeport plant.
B. Procedural history
Plaintiffs Harold and Claire Thomasson initiated this
action in the Superior Court of New Jersey, Middlesex County
against nearly 40 named defendants. Defendants CBS, Foster
Wheeler, and General Electric removed the action to federal
court on February 20, 2013. [Docket Item 1.] This Court denied
Plaintiffs’ motion to remand, finding that the notice of removal
was timely filed. [Dockets Items 60 & 61.] On December 20, 2013,
following Harold Thomasson’s death, Plaintiff Claire Thomasson
filed an Amended Complaint [Docket Item 119], on behalf of
herself individually and as administratrix of her husband’s
estate, naming six additional defendants. Plaintiff filed a
Second Amended Complaint [Docket Item 155] on July 14, 2014
naming seven additional defendants. In accordance with
Magistrate Judge Joel Schneider’s scheduling orders [Docket Item
143 & 150], Defendants timely filed the instant motions on
9

January 15, 2015. By letter dated February 18, 2015, Plaintiff’s
counsel indicated that there was no opposition to the pending
motions for summary judgment. [Docket Item 257.] Plaintiff did
however file opposition to MetLife’s motion to dismiss [Docket
Item 264] and MetLife filed a reply [Docket Item 271.]
DISCUSSION
A.

Defendants’ motions for summary judgment

The Court will grant Defendants’ motions for summary
judgment because Plaintiff has adduced no evidence that any of
the moving Defendants manufactured or supplied asbestos or any
asbestos-containing product to which Mr. Thomasson was exposed,
and no evidence of causation linking Defendants’ products to Mr.
Thomasson’s mesothelioma.
In New Jersey, “to prevail against a particular defendant
in an asbestos case, a plaintiff must establish, in addition to
other elements of a product liability action, exposure to
friable asbestos manufactured or distributed by the defendant.”
Sholtis v. Am. Cyanamid Co., 238 N.J. Super. 8, 30 (App. Div.
1989). Furthermore, to defeat summary judgment, plaintiff must
adduce evidence such that “reasonable jurors could infer that
sometime during [plaintiff’s] work histor[y] . . . plaintiff
[was] exposed to a defendant’s friable asbestos frequently and
on a regular basis, while [plaintiff was] in close proximity to
it[,]” as well as “competent evidence, usually supplied by
10

expert proof, establish[ing] a nexus between the exposure and
plaintiff’s condition.” Id. at 31. In Kurak v. A.P. Green
Refractories Co., 298 N.J. Super. 304 (App. Div. 1997), the
Appellate Division suggested that a lower causation standard may
apply in cases where plaintiff has been diagnosed with
mesothelioma. Id. at 322. The court stated that, “unlike
asbestosis or cancer of the lung caused by asbestos,
mesothelioma, a cancer of the lining of the lung, can be caused
by relatively small exposures to asbestos.” Id. at 311.
It is, nevertheless, well-established that a plaintiff must
demonstrate some level of exposure to a defendant’s asbestoscontaining product. See Goss v. Am. Cyanamid, Co., 278 N.J.
Super. 227, 236 (App. Div. 1994) (noting that it would be
insufficient for plaintiff to show that asbestos-containing
products supplied by defendant were used in plaintiff’s
workplace without actual proof linking plaintiff’s alleged
exposure to those products). Put simply, to prevail on a tort
claim for asbestos exposure, plaintiff must identify an
asbestos-containing product manufactured or supplied by
defendant. See Barnes v. Foster Wheeler Corp., Civ. 13-1285
(JBS), 2014 WL 2965699, at *3 (D.N.J. June 30, 2014) (collecting
and discussing cases); Hughes v. A.W. Chesterton Co., 435 N.J.
Super. 326, 345 (App. Div. 2014).

11

Similarly, under maritime law, to establish causation in an
asbestos case, “a plaintiff must show, for each defendant, that
(1) he was exposed to the defendant’s product, and (2) the
product was a substantial factor in causing the injury he
suffered.”5 Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 492
(6th Cir. 2005). The Asbestos MDL court in the United States
District Court for the Eastern District of Pennsylvania has
noted that “there is also a requirement (implicit in the test
set forth in Lindstrom and [Stark v. Armstrong World Indus.,
Inc., 21 F. App’x 371 (6th Cir. 2001)]) that a plaintiff show
that (3) the defendant manufactured or distributed the asbestoscontaining product to which exposure is alleged.” Mortimer v.
A.O. Smith Corp., Civ. 13-04169 (ER), 2014 WL 7652989, at *1
(E.D. Pa. Dec. 23, 2014). “‘Minimal exposure’” to a defendant’s
product is insufficient” to establish causation. Lindstrom, 424
F.3d at 492. “Likewise, a mere showing that defendant’s product
was present somewhere at plaintiff’s place of work is
insufficient.” Id. Instead, “to establish that a product was a
substantial factor in causing injury, the plaintiff must show a
high enough level of exposure that an inference that the

5

Only Defendants CBS Corporation, Foster Wheeler, General
Electric, and Air & Liquid Systems Corporation argue that
maritime law may apply to Plaintiff’s claims arising from Mr.
Thomasson’s work aboard the U.S.S. Fitch and the U.S.S. Macomb.
12

asbestos was a substantial factor in the injury is more than
conjectural.” Id. (internal quotations omitted).
In the present case, there is simply no evidence that Mr.
Thomasson was exposed to any asbestos or asbestos-containing
products manufactured, supplied, or installed by any of the
moving Defendants. Even if there was evidence of some exposure
to Defendants’ asbestos or asbestos-containing products, it is
insufficient to establish causation. The only testimony in the
record regarding any of the moving Defendants’ products relates
to Goulds and Bechtel. However, testimony by Tomeo and Griffin
that pumps manufactured by Goulds may have been present in the
Monsanto plant where Mr. Thomasson worked between 1960 and 1985
is insufficient to establish causation under New Jersey law.6
There is nothing in the record from which a reasonable jury
could find that Mr. Thomasson was exposed to any of Defendants’
products with sufficient frequency, regularity, or proximity to
satisfy Sholtis or even the lesser standard in Kurak. Moreover,
the testimony as to Bechtel has been refuted by Defendant
without objection from Plaintiff. Therefore, the Court will
grant Defendants’ motions for summary judgment for failure to

6

There is no assertion that anything but New Jersey law applies
to Plaintiff’s claims arising from Mr. Thomasson’s work at the
Monsanto Chemical plant in Bridgeport, New Jersey.
13

identify an asbestos-containing product manufactured or supplied
by Defendants and for lack of causation.7
B.

MetLife’s motion to dismiss

MetLife seeks dismissal of Plaintiff’s Amended Complaint
based on Plaintiff’s purported failure to comply with the
Court’s orders regarding service of the complaint and service of
Plaintiff’s expert reports.8 As an alternative to dismissal,
MetLife seeks exclusion of Plaintiff’s expert report. Plaintiff
argues in response that MetLife was served well-within the
statute of limitations period. Plaintiff concedes that she
failed to comply with the Court’s deadline for serving expert
reports, but notes that Plaintiff’s counsel agreed to extend the
time to serve Defendants’ expert reports.
MetLife’s motion to dismiss requires a more fulsome
recounting of certain aspects of this action’s extensive
procedural history. Pursuant to a text order entered on December
10, 2013, Judge Schneider granted Plaintiff’s motion for leave

7

Because the undisputed record establishes Defendants’
entitlement judgment as a matter of law for lack of causation,
the Court does not reach additional arguments raised by
Defendants including failure to present expert testimony,
entitlement to the government contractor defense, and failure to
comply with the applicable statute of repose.
8 MetLife’s initial submission in support of its motion to
dismiss made no reference to relevant authority. Only in reply
does MetLife address the factors applicable to dismissal under
Poulis v. State Farm Fire and Casualty, 747 F.2d 863 (3d Cir.
1984).
14

to file an amended complaint and directed Plaintiff to “file and
serve” the proposed amended complaint by December 23, 2013.
[Docket Item 110.] Plaintiff filed the Amended Complaint naming
MetLife as a defendant on December 20, 2013. [Docket Item 119.]
Plaintiff concedes, however, that MetLife was not served with
the Amended Complaint until July 18, 2014. MetLife filed an
Answer on August 8, 2014. [Docket Item 163.]
According to an amended scheduling order entered on May 30,
2014, Plaintiff’s expert reports were to be served upon
defendant’s counsel no later than October 31, 2014. [Docket Item
143.] Plaintiff contends that she served Dr. Hawey Wells, Jr.’s
medical expert report on November 25, 2014.9 Pursuant to the
amended scheduling order, Defendants’ expert reports were to be
filed no later than December 1, 2014.
On December 4, 2014, Defendants URS Energy & Construction,
Inc. and John Crane, Inc. sought dismissal of Plaintiff’s
Amended Complaint for failure to serve Plaintiff’s expert
reports in accordance with the amended scheduling order. [Docket
Items 196 & 197.] Seeking to avoid unnecessary motions practice,
Judge Schneider, by order entered December 10, 2014 [Docket Item

9

MetLife notes that Plaintiff’s certification of service dated
November 25, 2014, and entered on the docket on December 4,
2014, indicates that Dr. Wells’ report was served on all defense
counsel via email, but MetLife is omitted from the list of
defendants served. [Docket Item 197-5.]
15

198], directed Plaintiff to file a motion for leave to serve a
late expert report by December 16, 2014. Thereafter, numerous
Defendants sought to join in these motions to dismiss. [Docket
Items 199-204.] MetLife did not seek to join Defendants’ motions
at this time.
On December 30, 2014, Judge Schneider noted that Plaintiff
did not file a motion in accordance with Court’s December 10,
2014 Order. [Docket Item 207.] The next day, Judge Schneider
ordered Defendants to serve their medical expert reports by
January 30, 2015. [Docket Item 217.] Plaintiff’s counsel
contends that he consented to such an extension and made that
consent known to Defendants’ Liaison Counsel on November 24,
2014.
Upon letter from counsel for Defendants URS Energy &
Construction, Inc. and John Crane, Inc., withdrawing their
motions to dismiss in light of stipulations dismissing
Plaintiff’s claims against them, the Court dismissed Defendants’
motions as moot without prejudice to any other defendant seeking
similar relief. [Docket Item 218.] MetLife essentially did so
upon filing its motion to dismiss on January 15, 2015. [Docket
Item 228.]
In determining whether dismissal is an appropriate sanction
for violating a court order, courts are required to consider the
factors outlined in Poulis v. State Farm Fire and Casualty, 747
16

F.2d 863 (3d Cir. 1984). Hernandez v. Palakovich, 293 F. App’x
890, 894 (3d Cir. 2008). The six Poulis factors are: (1) the
extent of the party’s personal responsibility; (2) prejudice to
the adversary; (3) a history of dilatoriness; (4) whether the
conduct was willful or in bad faith; (5) availability of
alternative sanctions; and, (6) the meritoriousness of the
claim. Poulis, 747 F.2d at 868. “Not all of these factors need
be met for a district court to find dismissal is warranted.”
Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988).
Plaintiff’s conduct in this litigation falls well-short of
that required to warrant dismissal under Poulis. Plaintiff
concedes that MetLife was served with the Amended Complaint many
months after the December 23, 2013 deadline for service set by
Judge Schneider. However, MetLife filed an Answer on August 8,
2014 and this litigation proceeded in due course without any
apparent prejudice to MetLife.10 Although Plaintiff failed to

10

Although not raised explicitly by MetLife, the Court notes
that Plaintiff failed to serve MetLife with the Amended
Complaint within the 120 day period provided under Rule 4(m),
Fed. R. Civ. P. “The time limitations of Rule 4(m) apply with
equal force to an amended complaint that adds new parties.”
Serfess v. Equifax Credit Info. Servs., LLC, Civ. 13-0406
(RBK/JS), 2015 WL 501972, at *3 (D.N.J. Feb. 5, 2015). See also
4B Wright & Miller et al., Fed. Prac. & Proc. § 1137 (4th ed.)
(“Although filing an amended complaint in itself does not toll
the service period, thereby providing an additional 120 days for
service, adding a new party through an amended complaint
initiates a new 120-day timetable for service upon the added
defendant.”). Courts are permitted under Rule 4(m) to dismiss an
action without prejudice if service of the summons and complaint
17

serve her medical expert report by the deadline established by
the Court’s order, Plaintiff’s counsel consented to an extension
of the deadline for Defendants to file their expert reports and
Judge Schneider did, in fact, extend the deadline for serving
Defendants’ medical export reports until January 30, 2015. Any
prejudice to Defendants was thus cured upon the extension of the
deadline to serve responsive expert reports. MetLife
acknowledges that it served its expert reports on December 2,
2014.
Moreover, Plaintiff’s failure to comply with two deadlines
in this action does not constitute a substantial history of
dilatoriness. Nor does MetLife identify any additional conduct
by Plaintiff which indicates dilatoriness or bad faith. In fact,
MetLife very reasonably acknowledges the inherent difficulties
presented by a case with so many defendants and notes that it
does not claim that Plaintiff’s conduct in this case has been
willful or in bad faith. It is also noteworthy that MetLife did
not join the motions to dismiss by URS Energy and John Crane
which raised identical arguments to those raised in the instant

is not made within 120 days after filing of the complaint,
provided that “if the plaintiff shows good cause for the
failure, the court shall extend the time for service for an
appropriate period.” Fed. R. Civ. P. 4(m). The Court declines to
dismiss the instant action for failure to comply with Rule 4(m)
because the Court finds no prejudice to MetLife in continuing to
defend this litigation as it has since filing an Answer in
August, 2014.
18

motion. MetLife instead waited until the very latest possible
moment to seek dismissal of Plaintiff’s Amended Complaint. The
Court is thus unpersuaded at this late juncture by MetLife’s
request for the drastic remedy of dismissal based on the
purported prejudice presented by a short period to prepare for
trial.11 Therefore, the Court will deny MetLife’s motion to
dismiss based on Poulis.
The Court further finds that an order barring Plaintiff’s
expert report is inappropriate in a case where, in light of
Plaintiff’s delay in serving her expert reports, the Court
extended the deadline for Defendants to serve their responsive
reports, and MetLife, by its own admission, served its expert
reports in this case no later than December 2, 2014.
Importantly, MetLife does not present any grounds for deeming
inadmissible or excluding Dr. Well’s report beyond Plaintiff’s
failure to comply with the Court’s deadline to serve export
reports.

11

MetLife appears to argue that Plaintiff has failed to disclose
any factual basis for MetLife’s purported liability in this
action. Such an argument is appropriate for a motion dismiss
under Rule 12(b)(6), Fed. R. Civ. P., or a motion for summary
judgment. In the absence of such a motion, the Court will not
opine on the factual basis for Plaintiff’s claims against
MetLife. The Court does note, however, that MetLife’s motion to
dismiss will be denied without prejudice to presenting these
arguments at the close of a short period of additional
discovery.
19

As an alternative to dismissal or striking Dr. Wells’
expert report, the Court will permit a period of forty-five (45)
days for additional discovery (including but not limited to a
deposition of Plaintiff’s expert) to cure any potential
prejudice to MetLife, after which MetLife shall serve any
defense expert report and may file any appropriate motion within
fifteen (15) additional days.12 Such a period should assuage
MetLife’s concern that it will be disadvantaged in this
litigation if the case proceeds against it due to the short
period of time available to prepare for trial.13
CONCLUSION
In light of the foregoing, the Court will grant the pending
motions for summary judgment. The Court will deny MetLife’s
motion to dismiss without prejudice to filing an appropriate
motion no later than sixty (60) days from today’s date. The
Court will permit MetLife to have a supplemental discovery
period of forty-five (45) days from today’s date. An
accompanying Order will be entered.

April 9, 2015
Date

s/ Jerome B. Simandle...
JEROME B. SIMANDLE
Chief U.S. District Judge

12

Such a period applies only to MetLife. It does not apply to
any of the other Defendants regardless of whether they have
filed dispositive motions.
13 Indeed, no trial date has been set and Judge Schneider
adjourned the Final Pretrial Conference scheduled for April 2,
2015 in light of the pending motions. [Docket Item 267.]
20