HALL v. JOHNSON & JOHNSON et al

Filing 212

MEMORANDUM & ORDER denying 198 MOTION for Reconsideration re 162 Memorandum, Opinion, 163 Order on Motion to Quash, Subpoenas. Signed by Magistrate Judge Tonianne J. Bongiovanni on 12/20/2023. (mlh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
FRANK HALL, et al.
Plaintiffs,

Civil Action No. 18-1833 (ZNQ)(TJB)

v.

Memorandum & Order

JOHNSON & JOHNSON, et al.,
Defendants.

Before the Court is Defendant Johnson & Johnson’s (“J&J”) Motion for Reconsideration
of the Court’s April 29, 2022 Opinion and Order (Docket Entry Nos. 162 and 163) granting nonparties Levy Konigsberg LLP (“Levy”), Moshe Maimon (“Maimon”), Hobson & Bradley, William
Longo (“Dr. Longo”), the Smith Law Firm, PLLC (the “Smith Firm”), and Robert Allen Smith Jr.
(“Smith”) (referred to collectively as the “Subpoena Recipients”) motions to quash J&J’s
subpoenas. For the reasons set forth below, J&J’s Motion is DENIED.
I.

Background

The Court presumes the parties’ familiarity with the history of this action and includes
herein only background relevant to the instant motion. At issue in this reconsideration motion is
the Court’s Opinion and Order dated April 29, 2022 (the “April 29, 2022 Opinion”) (Docket Entry
Nos. 162 & 163.) As set forth therein, “this is a putative class action securities litigation in which
Lead Plaintiff San Diego County Employees Retirement Association (“Plaintiff”), and other
similarly situated investors, purchased J&J stock between February 2013 and October 2018, and
claim that J&J, and the named Individual Defendants, violated Section 10(b) of the Securities
Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated
thereunder, 17 C.F.R. § 240.10b-5.” (See Mem. Op. of 4/29/2022 (“Mem. Op.”), Docket Entry
No. 162, at 2.) Specifically, it is alleged that “Defendants fraudulently inflated the value of J&J’s
1

stock by issuing false and misleading statements as part of a long-running scheme to conceal the
truth from investors that the Company’s talc products were contaminated with asbestos, and that
Plaintiff and other investors relied on these material misrepresentations and omissions to their
detriment.” (Id. (citing Op. of 12/27/2019, at 1-2, Docket Entry No. 49.))
Plaintiff asserts that J&J’s stock price started to decline after the publication of certain
news articles and press releases revealing the truth about asbestos in its talc products. (See, e.g.,
Pl.’s Am. Compl., at 6-7, ¶ 12, Docket Entry No. 33.) Plaintiff refers to the release of these news
articles and publications as “corrective disclosures”, 1 which allegedly caused a significant decline
in J&J’s stock price and financial harm to investors. (Id. at 239, ¶ 421.) Among the corrective
disclosures that are subject to the present dispute include: a January 30, 2018 Law360 article that
quotes Mr. Maimon of Levy Konisberg, LLP; a February 5, 2018 blog post from
Mesothelioma.net; a February 7, 2018 press release from a plaintiff’s law firm, Beasley, Allen,
Crow, Methvin, Portis, P.C.; and a December 14, 2018 Reuters article, which referenced lab
reports from Plaintiff’s expert, Dr. Longo. (See J&J’s Moving Br. [“Moving Br.”], Docket Entry
No. 198, at 3-4.)
At or around August 2021, J&J served the third-party subpoenas on the Subpoena
Recipients, all of whom are non-parties to the present action. (Subpoena Recipients Br. in Opp’n
[“S.R. Br.”], Docket Entry No. 204, at 1).

J&J’s subpoenas 2 sought to obtain “[a]ll

communications” between the Subpoena Recipients, many of whom are attorneys that have
represented plaintiffs in lawsuits against J&J involving its talcum powder products, and any
A “corrective disclosure” in securities litigation is the “a release of information that reveals to
the market the pertinent truth that was previously concealed or obscured by the company’s fraud.”
FindWhat Investor Group v. FindWhat.com, 658 F.3d 1282, 1311 (11th Cir. 2011).
1

2

The information requested in the Subpoenas is set forth, in detail, in the Court’s April 29, 2022
Opinion. (See Mem. Op. at 2–4.)
2

“Media Organization” that reported on J&J’s talcum powder products. (See Mem. Op. at 2-4.)
The Subpoena Recipients moved to quash, asserting, among other things, that the information
sought was protected by the First Amendment, that enforcing the subpoenas would impose an
undue burden on them, that the information sought was not relevant, and that J&J was improperly
targeting attorneys who continue to litigate personal injury cases against it. (See id. at 4.)
On April 29, 2022, the Court granted the motions to quash. (Id. at 9.) In the Opinion, the
Court set forth its view that the media reports and alleged corrective disclosures were relevant to
the nature of Plaintiff’s underlying claims. However, in terms of the information sought within
J&J’s subpoenas, the Court determined that J&J's objective did not simply involve obtaining all
media reports identified by the Plaintiff as “corrective disclosures” or the specific documents
referenced in those reports. (Id. at 7–8.) Rather, the Court found that J&J was “attempting to
obtain discovery of non-public statements made by attorneys or their experts involved in product
liability litigation against J&J” and:
None of the arguments raised by J & J establishes how non-public
statements made by said attorneys or their experts impacts whether
new facts were actually disclosed in the media reports identified as
“corrective disclosures.” Further, J & J cites no pertinent caselaw
supporting its theory that such non-public statements are relevant.
[Id. at 8.]
In terms of the relevance of the discovery sought, the Court determined:
It [was] hard to see what bearing non-public statements made by the
product liability lawyers and/or their experts have on (1) the veracity
of J&J’s statements; (2) whether the information outlined in the
alleged “corrective disclosures” is true; or (3) whether the
information set forth in the “corrective disclosures” is new. And,
again, J&J fails to cite a single case requiring similar discovery
under analogous circumstances.
[Id.]

3

J&J filed its motion for reconsideration on June 2, 2023. (Docket Entry No. 198.) The
Subpoena Recipients opposed J&J’s Motion on June 30, 2023. (Docket Entry Nos. 204 & 205.)
Plaintiff “takes no position on the motions to quash,” but has filed a response to address certain
arguments put forth by J&J regarding the class certification record. (Docket Entry No. 203.)
II.

Legal Standard

While not expressly authorized by the Federal Rules of Civil Procedure, motions for
reconsideration are governed by Local Civil Rule 7.1(i). Weston v. Subaru of Am., Inc., Civ. No.
20-5876, 2022 WL 18024222, at *7 (D.N.J. Dec. 31, 2022). It is well established that a motion
for reconsideration is to apply in extremely limited circumstances. Tehan v. Disability Mgmt.
Servs., Inc., 111 F. Supp. 2d 542, 549 (D.N.J. 2000); see also A.K. Stamping Co. Inc., v. Instrument
Specialties Co. Inc., 106 F.Supp.2d 627, 662 (D.N.J. 2000) (internal citations and quotations
omitted) (“The extraordinary remedy of reconsideration, pursuant to . . . Local Civil Rule 7.1, is
to be granted sparingly.”); Tischio v. Bontex, Inc., 16 F. Supp. 2d 511, 533 (D.N.J. 1998) (“[A]
motion for reconsideration should not provide the parties with an opportunity for a second bite at
the apple.”). Thus, a motion for reconsideration must be denied “where a party simply asks the
court to analyze the same facts and cases it had already considered in reaching its original
decision.” Tehan, 111 F. Supp. 2d at 549; see, e.g., Morris v. Siemens Components, Inc., 938 F.
Supp. 277, 278 (D.N.J. 1996) (“A party's mere disagreement with a decision of the district court
should be raised in the ordinary appellate process and is inappropriate on a motion for
reargument.”).
In a motion for reconsideration, the movant bears the burden of establishing either: (1) an
intervening change in the controlling law has occurred; (2) evidence not previously available has
become available; or (3) it is necessary to correct a clear error of law or prevent a manifest injustice.

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Max's Seafood Cafe ex rel. Lou-Ann v. Quinteros, 176 F.3d 669, 677 (3d. Cir. 1999). To be clearly
erroneous, the Court must have a “definite and firm conviction that a mistake has been committed.”
Haines v. Liggett Group, Inc., 975 F. 2d 81, 92 (3d Cir. 1992). A manifest injustice is “an error in
the trial court that is direct, obvious, and observable.” Antonio-Villalba v. Hollingsworth, Civ.
Nos. 12-7779, 12-7836, 2013 WL 5592367, at *2 (D.N.J. Oct. 13, 2013).
III.

Analysis

As a threshold matter, the Court considers whether J&J’s motion for reconsideration was
timely filed. Pursuant to Local Civil Rule 7.1(i) “a motion for reconsideration shall be served and
filed within 14 days after the entry of the order or judgment on the original motion by the Judge
or Magistrate Judge.” On this issue, the Court recognizes that the procedural context following
the Court’s April 29, 2022 Opinion is somewhat convoluted. The Court issued its initial decision
on April 29, 2022, and J&J’s Motion was not filed until June 2, 2023. However, as raised by J&J,
the United States Bankruptcy Court for the District of New Jersey stayed this case on May 9, 2022,
ten days after the Court’s decision. The Bankruptcy stay tolled all applicable filing deadlines.
(See Docket Entry Nos. 168 and 171.) This case was administratively closed on March 31, 2023.
(Docket Entry No.176.) As noted by J&J, the matter was not reopened until May 8, 2023 (Docket
Entry No. 177).
Upon reopening of the case, it appears that Plaintiff and J&J conferred and submitted an
update and schedule to the undersigned on May 18, 2023, outlining a plan for moving this case
forward as well as upcoming motion filing deadlines. J&J emphasizes that the schedule within the
May 18, 2023, submission stated that J&J would be filing this motion for reconsideration on June
2, 2023. (Docket Entry No. 179, at 2). J&J then filed the instant motion on June 2, 2023. (Docket
Entry No. 198.)

5

While the Court accepts J&J’s position that the U.S. Bankruptcy Court Order and
subsequent administrative termination of this case tolled the deadlines for filing its motion for
reconsideration, the tolling of all deadlines would only be applicable during the period when the
stay and/or administrative termination were in effect. J&J does not dispute that this matter was
administratively reopened on May 8, 2023. (See Moving Br., Docket Entry No. 198, at 1.) In
accordance with Local Civil Rule 7.1(i), J&J was required to file its motion for reconsideration by
May 12, 2023, since only four days remained of the fourteen-day period, or by May 22, 2023, if
the Court allowed the fourteen-day period to commence again.
J&J endeavors to circumvent the 14-day deadline by asserting that “the parties submitted
an agreed schedule for briefing this Motion.” (See Moving Br., at 1 n.1.) That schedule, however,
was exclusive to Plaintiff and J&J. In the context of third-party discovery, the Court will not credit
a motion schedule that was entered exclusively between Plaintiff and J&J. Further, although
Plaintiff and J&J may have agreed upon a filing deadline of June 2, 2023, for this reconsideration
motion, J&J fails to mention that within the same paragraph, their schedule clearly provided that
J&J would “contact the non-parties’ counsel regarding these deadlines.” (Docket Entry No. 179,
at 2.) Notably, the Subpoena Recipients and their counsel have confirmed that J&J did not attempt
to contact them or obtain consent to extend the filing deadline prescribed by Local Civil Rule
7.1(i). (See S.R. Br., Docket Entry No. 204, at 3–4; Docket Entry No. 205, at 10–11.) J&J does
not suggest that it ever attempted to contact the Subpoena Recipients’ counsel. 3 Nor is there any
evidence to show that the Subpoena Recipients waived the 14-day deadline.

3

J&J has chosen not to file a reply brief. Thus, the Court accepts the Subpoena Recipients’
counsel’s statements as true and uncontested.
6

Accordingly, the Court concludes that this Motion is time-barred as it was filed after the
14-day deadline had elapsed. This alone shall serve as grounds to deny J&J’s motion for
reconsideration. See Oriakhi v. Bureau of Prisons, No. 07-264, 2009 U.S. Dist. LEXIS 55379,
2009 WL 1874199, at *3 (D.N.J. June 29, 2009) (“An untimely filed motion for reconsideration
may be denied for that reason alone.” (internal quotation marks omitted)); T.H. v. Clinton Twp.
Bd. of Educ., No. 05-3709, 2006 WL 1722600, at *2 (D.N.J. June 16, 2006).
The Court will, nonetheless, address the substantive arguments presented in J&J’s Motion.
On reconsideration, J&J presents two main arguments. First, J&J argues that the Court erroneously
denied the requested discovery by applying a heightened relevance standard for third-party
discovery. (Mov. Br., at 9.) Specifically, J&J argues that the Court incorrectly cited Stamy v.
Packer, 138 F.R.D. 412, 419 (D.N.J. 1990), for the proposition that “the standards for nonparty
discovery require a stronger showing of relevance than for simple party discovery.”

(Id.)

According to J&J, the Stamy decision was made prior to the 1991 amendments to Federal Rule of
Civil Procedure 45 (“1991 Amendments”), which amended Rule 45 to state that a “nonparty
subpoenaed pursuant to Rule 45 ‘is subject to the same scope of discovery . . . as a party to whom
a request is addressed pursuant to Rule 34.’” (Mov. Br., at 10.) Based on the 1991 Amendments,
J&J argues that “the standard of relevance does not change based on party status,” and that the
Court’s reference to Stamy and its progeny constituted a clear legal error. (See Mem. Op., at 5,
Docket Entry No. 162.) J&J lends support from the advisory committee notes to the 1991
Amendments, several secondary sources, and cases from other jurisdictions that may have utilized
this approach for third-party discovery. 4

4

To note, it appears that J&J previously failed to raise its contentions regarding the 1991
Amendments in its original opposition to the Subpoena Recipients’ motions to quash. (See
generally Docket Entry No. 131). Indeed, generally, L.Civ.R. 7.1(i) “does not contemplate a Court
7

The Court does not believe that Its reference to Stamy constitutes a legal error that warrants
reconsideration. Absent from J&J’s moving papers is any reference to controlling case law within
this District or Circuit that applies the 1991 Amendments to the circumstances presented here. On
the other hand, substantial case law from this District confirms that the courts routinely afford a
higher level of protection to non-parties who are subject to discovery requests. Of note, over a
dozen cases since the Stamy decision have relied on the same proposition that non-party discovery
requires a stronger showing of relevance than routine party discovery. See, e.g., Phillips v.
Archdiocese of Newark, Civ. No. 18-12207, 2023 WL 3303594, at *3 (D.N.J. May 8, 2023) (“the
standards for nonparty discovery require a stronger showing of relevance than for simple party
discovery” and that such limitation is “particularly appropriate in the context of third-party
subpoenas”); Walgreens Specialty Pharm., LLC v. Atrium Admin. Servs., 2020 WL 6042280, at *3
(D.N.J. Oct. 13, 2020) (same); Burgess v. Galloway, et al., Civ. A. No. 20-06744, 2021 WL
2661290, at *3 (D.N.J. Jan. 28, 2021) (quoting Stamy v. Packer, 138 F.R.D. 412, 419 (D.N.J.
1990); Chazanow v. Sussex Bank, 2014 WL 2965697 *3 (D.N.J. July 1, 2014) (affording non-party
greater protection from discovery).

Given this context, the Court denies J&J's request for

reconsideration on this basis.
J&J also claims that there is “new evidence” which requires the Court to reconsider its
prior decision. (Moving Br., at 6.) Before the April 29, 2022 Opinion was issued, J&J states that
it had “received new evidence from other third parties about the Reuters Article, the Meso.net Blog

looking to matters which were not originally presented.” Florham Park Chevron, Inc. v. Chevron
U.S.A., Inc., 680 F.Supp. 159, 162 (D.N.J. 1988). Consequently, “except in cases where there is a
need to correct a clear error or manifest injustice, ‘[o]nly dispositive factual matters and controlling
decisions of law which were presented to the court but not considered on the original motion may
be the subject of a motion for reconsideration.’” Guinta v. Accenture, LLP, Civ. No. 08-3776
(DRD), 2009 WL 301920, *5 (D.N.J. Jan. 23, 2009) (quoting Resorts Int’l, 830 F.Supp. at 831).
8

Post, and the Beasley Allen Press Release.” (Id.) Specifically, the alleged new evidence consists
of declarations from Mark Lanier (“Lainer”) and Ted Meadows (“Meadows”), other lawyers who
litigated product liability cases against J&J, and Terri Oppenheimer (“Oppenheimer”), an author
of Meso.net Blog Post.

(Id. at 6-8.)

Within these declarations, Lanier, Meadows, and

Oppenheimer have each certified that the information on which the alleged corrective disclosures
were based was publicly available prior to the publication of said disclosures. J&J refers to the
Lanier, Meadows, and Oppenheimer declarations and argues they “demonstrate that the purported
corrective disclosures did not reveal any new information or objective truth.” (Moving Br., at 11.)
It is well established that where a party moves for reconsideration based on previously
unavailable evidence, relief is unavailable “where the evidence provided in support of such a
motion was available but was not submitted” with the prior motion. Menke v. Baker, Civ. No. 102585, 2012 WL 3146876, at *3 (D.N.J. Aug. 8, 2012). Therefore, to prevail, J&J must show that
these declarations constitute “new evidence that [were] not available when the court granted the
[motion].” Max's Seafood Café, 176 F.3d at 677. “New evidence” for purposes of reconsideration
“means evidence that a party could not earlier submit to the court because that evidence was not
previously available.” Howard Hess Dental Labs. Inc. v. Dentsply Int'l, Inc., 602 F.3d 237, 252
(3d Cir. 2010).
J&J’s proffered new evidence was available prior to the Court’s April 29, 2022 Opinion.
Each of the three declarations were available weeks or months prior to the Court’s decision. The
Declaration of Mark Lanier was executed in December 2021—four months before the Court issued
its decision. (Docket Entry No. 198-6, Ex. 5.) Likewise, the Declarations of Teri Oppenheimer
and Ted Meadows are dated April 15, 2022, and April 22, 2022, week(s) prior to the Court’s
decision. (Docket Entry Nos. 198-7, Ex. 6 and 198-8, Ex. 7.) If this evidence was as important as

9

J&J claims, the Court is hard-pressed to find why J&J did not simply raise or submit these
declarations as a supplemental submission prior to the issuance of the April 29, 2022 Opinion.
J&J’s request for reconsideration based on this alleged new evidence is denied. 5 Accordingly,
IT IS on this _20th__ day of _December___ 2023,
ORDERED that J&J’s Motion for Reconsideration of the Court’s April 29, 2022 Opinion
is DENIED; and it is further
ORDERED that the Clerk of Court terminate Docket Entry No. 198.
s/ Tonianne J. Bongiovanni
TONIANNE J. BONGIOVANNI
United States Magistrate Judge

5

Even if the Court were to find that this evidence is “new”, which it does not, the Court does not
find that these declarations would impact its prior decision. Indeed, as outlined in the April 29,
2022 decision, nothing submitted by J&J in its reconsideration motion would change the Court’s
prior analysis that the evidence sought by J&J’s subpoenas is irrelevant to (1) the truth of J&J’s
statements; (2) whether the information in the corrective disclosures is true; and (3) whether the
information in the corrective disclosures is new. (Mem. Op., at 8.)
10