Levin v. Johnson and Johnson et al

Filing 328

ORDER: For the foregoing reasons, the motions are decided as follows: PLEASE SEE ORDER FOR FURTHER DETAILS; 1. DE 267 is terminated as moot.; 2. DE 268 is terminated as moot.; 3. DE 270 is terminated as moot.; 4. DE 283 is granted in part (Plaintiff may file opposition to summary judgment up to 35 pages) and the remainder of the motion is moot.; 5. DE 286 is terminated as moot.; 6. DE 312 is denied without prejudice and with leave to renew.; 7. DE 313 is denied as moot. Defendants are respectfully requested to serve a copy of this Order on Mr. Levin at his address of record on or before January 26, 2022.. So Ordered by Magistrate Judge James M. Wicks on 1/25/2022. (Ortiz, Grisel)

Case 2:16-cv-06631-JMA-JMW Document 328 Filed 01/25/22 Page 1 of 4 PageID #: 8038
FILED 
CLERK 

1/25/2022 2:07 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ISAAC LEVIN, an individual,
Plaintiff,
ORDER

-against-

16-CV-06631 (JMA)(JMW)

JOHNSON AND JOHNSON, a national for-profit corporate
entity, JOHNSON AND JOHNSON CONSUMER
COMPANIES, INC., a national for-profit corporate entity,
THE DOW CHEMICAL COMPANY n/k/a DowDuPont, a
multinational for-profit corporate entity, and KIK CUSTOM
PRODUCTS, INC., a multinational for-profit entity,
Defendants.
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WICKS, Magistrate Judge:
Before the Court are various motions filed by all parties, seeking pre-motion conferences and/or
leave to file various anticipated motions. Many of the motions are repetitive and the parties proceeded to
file several of the motions on their own volition, without leave of the Court and without a pre-motion
conference.
On May 3, 2021, Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc. filed a
letter motion (DE 267) requesting a pre-motion conference for leave to file motions: (1) to exclude
Plaintiff’s experts pursuant to Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharm., 509 U.S. 579
(1993); and, (2) for summary judgment on all of Plaintiff’s claims, pursuant to Fed. R. Civ. P. 56(a). 1 On
May 4, 2021, Defendant KIK Custom Products, Inc. (“KIK”) and Defendant The Dow Chemical
Company (“Dow”) both filed letter motions (DE 268 and DE 270) joining in J&J’s request for the pre-

Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc. (incorrectly sued as Johnson &
Johnson Consumer Companies, Inc.) are collectively referred to herein as “J&J.”

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motion conference (DE 267). Also on May 4, 2021, Plaintiff filed a letter motion (DE 269) opposing
Defendants’ motions (DE 267, DE 268, DE 270) on the basis that Defendants did not confer with Plaintiff
first. Plaintiff cites to a prior Order by the Honorable Anne Y. Shields, which terminated Defendants’
motion for summary judgment (DE 126) and directed the parties to confer regarding a briefing schedule.
(Electronic Order dated 6/17/2019.) On June 1, 2021, Defendants J&J proceeded to file another motion
(DE 286), seeking the same relief as their letter motion at DE 267.2 Also on June 1, 2021, Plaintiff filed a
letter motion (DE 283) seeking: (1) leave to file excess pages in his opposition to Defendants’ anticipated
motions for summary judgment, and, (2) leave to file a motion in limine to exclude Defendants’ expert. 3
Plaintiff had previously filed a motion in limine seeking the same relief (DE 174), which Judge Brown
denied on February 2, 2020, with leave to renew at the end of discovery. (Electronic Order dated
2/20/2021.) On August 26, 2021, without the Court ruling on Plaintiff’s letter motion (DE 283), Plaintiff
proceeded to file his renewed motion in limine to exclude Defendants’ expert (DE 312). On August 27,
2021, Defendants J&J and KIK filed a letter motion (DE 313) in opposition to Plaintiff’s motion in
limine, and renewed their request for a briefing schedule for dispositive motions. In the opposition,
Defendants correctly point out that Plaintiff violated Honorable Joan M. Azrack’s Individual Rules
(V.B.2.v.), which provide that the Court will set a briefing schedule for in limine motions after
submission of the joint pre-trial order. The Court notes that Plaintiff also proceeded to file the motion
before the Court issued a ruling on his pre-motion conference request.
Having considered the parties’ submissions on the aforementioned motions, the Court rules as
follows:
The Court waives its pre-motion conference requirement and grants Defendants’ request to file a
Daubert/Rule 702 motion, and a motion for summary judgment. The parties are directed to meet and
confer regarding briefing schedules for Defendants’ anticipated motions and file a proposed briefing
Defendants filed another letter, not as a motion, on July 28, 2021, renewing their request for a premotion Conference. (DE 308.)
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Defendants did not oppose Plaintiff’s application to file excess pages in an anticipated opposition to
their summary judgment motions.
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schedule on or before February 8, 2022. The parties are further directed to comply with the undersigned’s
Individual Rules § 3(C) regarding the service and filing of such motions, since the motions have been
referred to the undersigned (see Electronic Order dated 10/22/2021). Accordingly, DE 267, DE 268, DE
270, and DE 286, are terminated as moot.
The portion of DE 313 renewing Defendants’ request for a briefing schedule is also terminated as
moot. The portion of Plaintiff’s motion at DE 283, seeking leave to file excess pages, is granted to the
extent that Plaintiff may file opposition up to 35 pages in length. The portion of Plaintiff’s motion at DE
283, seeking leave to file a renewed motion in limine is moot, as Plaintiff proceeded to impermissibly file
the motion without leave of Court and in direct contravention of Judge Azrack’s rules. 4 To that end,
Plaintiff’s motion in limine (DE 312) is denied without prejudice and with leave to renew, after the parties
have filed their joint pretrial order. To the extent that Plaintiff’s intention was to move to exclude
Defendants’ expert pursuant to Daubert/Rule 702, the parties shall include Plaintiff’s anticipated motion
in their proposed briefing schedules that are due on February 8, 2022.
Defendants are respectfully requested to serve a copy of this Order on Mr. Levin at his address of
record on or before January 26, 2022.
CONCLUSION
For the foregoing reasons, the motions are decided as follows:
1. DE 267 is terminated as moot.
2. DE 268 is terminated as moot.
3. DE 270 is terminated as moot.
4. DE 283 is granted in part (Plaintiff may file opposition to summary judgment up to 35 pages) and
the remainder of the motion is moot.
5. DE 286 is terminated as moot.

During an oral argument on a separate motion before Honorable Steven L. Tiscione on May 12, 2021,
the Court noted that filing a motion in limine would be premature until the case is ready for trial, and
Plaintiff stated that he understood. See DE 290 at 44.
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6. DE 312 is denied without prejudice and with leave to renew.
7. DE 313 is denied as moot.
Dated: Central Islip, New York
January 25, 2021

S O

O R D E R E D:

James M. Wicks

/S/

JAMES M. WICKS
United States Magistrate Judge

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