Shahin et al v. Eli Lilly & Co. et al

Filing 61

MEMORANDUM AND ORDER: This memorandum and order supersedes the November 30, 2011 order that dismissed the complaint of plaintiffs Donna and Subhi Shahin for failure to prosecute. See Order, Shahin v. Eli Lilly & Co. et al., Nos. 04-MD-1596, 08-CV -576 (E.D.N.Y. Nov. 30, 2011), CM/ECF No. 60 . Given the special solicitude necessary to ensure that the rights of pro se plaintiffs are protected, the plaintiffs will therefore have one more opportunity to comply with Lilly's discovery requ ests. Each plaintiff will be treated as having brought an individual case against Lilly. Donna Shahin is directed to inform this court by letter, within twenty days of the publication of this memorandum and order, (1) whether she will appear at a place convenient for her and designated by the defendant so that defendant may promptly take her deposition, and (2) whether she will provide the defendant promptly with the authorizations requested, so that Lilly may access the records it seeks. Plaintiff shall copy Lilly's counsel on this letter. Failure to send the letter, appear for her deposition, or provide the necessary authorizations will result in the dismissal of her case. Subhi Shahin is directed to inform this court by lett er, within twenty days of the publication of this memorandum and order, (I) whether he will appear at a place convenient for hem and designated by the defendant so that defendant may promptly take his deposition, and (2) whether he will provide th e defendant promptly with the authorizations requested, so that Lilly may access the records it seeks. Plaintiff shall copy Lilly's counsel on this letter. Failure to send the letter, appear for his deposition, or provide the necessary authorizations will result in the dismissal of his case. Ordered by Senior Judge Jack B. Weinstein, on 12/2/2011. (Barrett, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
In re: ZYPREXA PRODUCTS LIABILITY
LITIGATION

MEMORANDUM AND ORDER
04-MD-1596

DONNA 1. SHAHIN, SUBI H. SHAHIN,
u,~

Plaintiffs,
08-CV-0576
- against-

*

::-': CLERK'S 0F::-:CC
DISTRICT COURT E.D.N.V.

DEC 0/ 2011

*

BROO¢N OFFICE

ELI LILLY & COMPANY, BRISTOLMYERS SQUIBB CO.,
Defendants.

JACK B. WEINSTEIN, United States District Judge:
This memorandum and order supersedes the November 30, 2011 order that dismissed the
complaint of plaintiffs Donna and Subhi Shahin for failure to prosecute. See Order, Shahin v. Eli
Lilly & Co. et ai., Nos. 04-MD-1596, 08-CV-576 (E.D.N.Y. Nov. 30, 2011), CMlECF No. 60.
Pro se plaintiff Donna Shahin claims that she suffers from psychiatric problems and that

she was treated with Zyprexa, a drug manufactured by defendant Eli Lilly & Company ("Lilly").
Ms. Shahin's use of Zyprexa allegedly caused her further medical problems. She sued Lilly in a
Maryland state court in July 2007. Ms. Shahin was joined in doing so by her husband, who
sought compensation for his collateral losses. The case was removed to the United States
District Court for the District of Maryland, and the case against Lilly was transferred to the
Eastern District of New York pursuant to an order of the Judicial Panel on Multidistrict
Litigation.
After answering plaintiffs' complaint, Lilly attempted to begin discovery. Depositions
were sought from plaintiffs, and authorizations to examine medical and insurance records were

requested, so that Lilly could obtain information about plaintiff Donna Shahin's health both
before and after she took Zyprexa. Plaintiffs failed to cooperate with Lilly in supplying
information necessary for defense or settlement.
In October 2011, Lilly moved to dismiss plaintiffs' action for failure to prosecute. At a
hearing held on October 24, 2011, the court explained to the plaintiffs that they could not justly
seek compensation from the defendant for injuries allegedly suffered by Donna Shahin without
giving the defendant materials to evaluate her medical history. The court instructed Lilly to take
depositions at a location convenient for the plaintiffs, and ordered the plaintiffs to provide the
necessary authorizations to Lilly. Plaintiffs failed to comply.
The defendant again moved for dismissal for failure to prosecute. At a hearing held on
November 28, 2011, the court again ordered the plaintiffs to proceed with discovery, warning
them that failure to do so would result in dismissal. They stated that they would not comply with
Lilly's requests, and consented to the court's dismissing their case.
Since the November 28,2011 hearing was held with the plaintiffs participating by
telephone--a medium that may present some difficulties in communication-the court, upon
further reflection, is not absolutely certain that the plaintiffs understood the import of their
position.
Given the special solicitude necessary to ensure that the rights of pro se plaintiffs are
protected, the plaintiffs will therefore have one more opportunity to comply with Lilly's
discovery requests.
Each plaintiff will be treated as having brought an individual case against Lilly. Donna
Shahin is directed to inform this court by letter, within twenty days of the publication of this
memorandum and order, (1) whether she will appear at a place convenient for her and designated
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by the defendant so that defendant may promptly take her deposition, and (2) whether she will
provide the defendant promptly with the authorizations requested, so that Lilly may access the
records it seeks. Plaintiff shall copy Lilly's counsel on this letter. Failure to send the letter,
appear for her deposition, or provide the necessary authorizations will result in the dismissal of
her case.
Subhi Shahin is directed to inform this court by letter, within twenty days ofthe
publication of this memorandum and order, (I) whether he will appear at a place convenient for
her and designated by the defendant so that defendant may promptly take his deposition, and (2)
whether he will provide the defendant promptly with the authorizations requested, so that Lilly
may access the records it seeks. Plaintiff shall copy Lilly's counsel on this letter. Failure to send
the letter, appear for his deposition, or provide the necessary authorizations will result in the
dismissal of his case.
A copy of this memorandum and order shall be sent to plaintiffs at their address of
record.
SO ORDERED.

einstein
enior United States District Judge
Date: December 2, 2011
Brooklyn, New York

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