Ward v. Ortho-McNeil Pharmaceutical et al
Filing
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ORDER denying 57 Motion for assistance locating witnesses, denying 58 Motion for settlement negotiations and denying 60 Motion to Compel. Signed by Magistrate Judge Robert B. Jones, Jr on 5/5/2015. Order to plaintiff via US Mail at Pasquotank Correctional Institution, 527 Commerce Drive, Elizabeth City, NC 27906. (Marsh, K)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:14-CV-120-BO
ADAM E. WARD,
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Plaintiff,
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V.
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ORDER
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ORTHO-MCNEIL PHARMACEUTICAL,
et al.,
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Defendants.
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This matter is before the court on Plaintiffs motion for assistance in locating witnesses [DE57], motion for settlement negotiations [DE-58], and motion to compel [DE-60]. Defendants have
responded in opposition to the motions. [DE-59, -61, -62]. For the reasons that follow, the motions
are denied.
I. BACKGROUND
Plaintiff, an inmate in the custody of the State of North Carolina, filed this action pro se
against Defendants alleging that on February 13, 2012, he was prescribed the anti-psychotic
medication Risperdal and that approximately six months into the drug regimen he began to
experience extreme pain is his nipple area and developed hard lumps and swelling in his breast tissue
and discharge from his nipples. [DE-l]. Plaintiffwas diagnosed with gynecomastia, or swelling of
the breast tissue in males, and was treated with another medication. !d. Plaintiff asserts that
Defendants informed the public that Risperdal was safe for consumer consumption, that he was
injured as a direct result of consuming Risperdal, and seeks damages in the amount of$12.4 million
for his physical and emotional injuries. Jd.
On March 10, 2014, Plaintiff filed a motion to appoint counsel. [DE-5]. On April 3, the
court entered an order holding that Plaintiff's complaint survived the required frivolity review under
28 U.S.C. ยง 1915(e) and granting in part Plaintiff's motion to appoint counsel, directing that the case
be submitted to the court's Pro Bono Panel. [DE-10]. No one accepted representation of the case.
[DE-13]. On June 4, Plaintiff filed a second motion to appoint counsel [DE-16], which was denied
by the court on June 24 [DE-19]. On June 26, Defendants filed their answer to the complaint.
[DE-22]. On July 18, the court entered a scheduling order setting the following critical deadlines:
reports from retained experts under Fed. R. Civ. P. 26(a)(2) due from Plaintiff by October 1, 2014
and from Defendants by October 31, 20 14; discovery to be concluded by March 2, 2015; and
potentially dispositive motions to be filed by April 1, 2015. [DE-29].
On August 20, 2014, Plaintiff filed a motion for appointment of an expert witness [DE-35],
which was denied [DE-42]. On November 18, on Defendants' motion [DE-43], the court extended
Defendants' expert report deadline until January 1, 2015. [DE-52]. On January 15, 20, and 26,
respectively, Plaintiff filed the instant motion for settlement negotiations [DE-58], motion for
assistance locating witnesses [DE-57], and motion to compel [DE-60]. On February 10, Plaintiff
filed a second motion for appointment of counsel [DE-63] and a second motion to appoint an expert
witness [DE-64]. On February 27, on Defendants' motion, the court extended the discovery deadline
until March 30 [DE-71], and on Aprill Defendants filed a motion for summary judgment [DE-72].
On April 8, Plaintiff filed a motion to amend his complaint. [DE-78].
II. ANALYSIS
A.
Motion for Assistance in Locating Witnesses
Plaintiff contends that due to his pro se status and limited access to information he requires
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the court's assistance in locating two witnesses: David Kessler, the former commissioner ofthe Food
and Drug Administration, and Allen Jones, who Plaintiff characterizes as a "Risperdal
Whistle blower." Pl.'s Mot. [DE-57] at 1-2. Plaintiff contends that these witnesses have been
utilized in similar cases against Defendants involving Risperdal and gynecomastia and that they have
inside knowledge that will show Defendants' drug Risperdal directly caused Plaintiffs
gynecomastia. !d. Defendants oppose the motion on the grounds that locating witnesses to assist
a party in litigation is not a proper function ofthe court. Defs.' Resp. [DE-61] at 2-4.
The court agrees with Defendants that it is Plaintiffs responsibility to locate potential
witnesses through discovery or other available means.
See Perotti v. Quinones, No.
2:10-CV-00086-JMS, 2014 WL 87538, at *3 (S.D. Ind. Jan. 9, 2014) (unpublished) (denyingpro
se inmate's motion for new trial based on, among other things, failure of court to issue subpoena for
witness, explaining it was plaintiffs responsibility to locate his witnesses); Golez v. Potter, No.
09-CV-965 AJB WMC, 2011 WL 3021045, at *1 (S.D. Cal. July21, 2011) (unpublished) (denying
prose Plaintiffs request for assistance in locating anon-party witness, explaining "the U.S. Marshal
has no duty to locate persons for purposes of service" and the plaintiff "must use his own methods
such as an electronic search ... in order to determine the location of the witness ...."); Williams
v. Woodford, No. 1:06-CV-01535-SKO PC, 2011 WL 489001, at *2 (E.D. Cal. Feb. 7, 2011)
(unpublished) (denying prose inmate's request for judicial intervention to help plaintifflocate and
communicate with inmate witnesses); Gaines v. Harbert, No. CIV. 07CV1320-J(CAB), 2009 WL
1481327, at *1 (S.D. Cal. May 27, 2009) (unpublished) (denying motion for appointment of
investigator to locate witnesses; "[a]n incarcerated prose plaintiff may have great difficulty pursuing
his action from prison, but that does not mean that the Court can or must fund his efforts.").
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Accordingly, Plaintiffs motion for assistance locating witnesses is denied.
B.
Plaintiff's Motion for Settlement Negotiations
Plaintiff requests that Defendants make an offer of settlement within 15 days or petition the
court for a mediator to begin settlement discussions. Pl.'s Mot. [DE-58] at 1-2. Defendants oppose
the motion on the grounds that mediation has not been required in this case and negotiations would
not be fruitful. Defs.' Resp. [DE-59] at 2.
The Local Rules require that the parties in many civil cases participate in a mediated
settlement conference prior to the close of the discovery period. See Local Civil Rule 101.1a(a).
Several types of civil cases are automatically selected for mediation without requiring a court order
directing that mediation occur, but "[ c]ases wherein ... any party appears pro se are not included
within this automatic selection for mediation." Local Civil Rule 101.1 a(b ). Where a case has not
been automatically selected for mediation, the court may exercise its discretion to order that the
parties participate in a mediated settlement conference. Local Civil Rule 101.1 a( c).
This case was not selected for mandatory mediation pursuant to Local Civil Rule 101.1 a(b ).
[DE-29] at 2. While the court has discretion to order that the parties participate in a mediated
settlement conference pursuant to Local Civil Rule 101.1 a( c), there appears to be no reason here to
justify such an order where Defendants are not amenable to negotiations and currently have a motion
for summary judgment pending. See Robinette v. Duke Univ., No. 1:11 CV536, 2011 WL 5530004,
at *1 (M.D.N.C. Nov. 14, 2011) (unpublished) (determining there was no reason to exercise
discretion and order mediation where a pro se party moved to compel mediation and the case was
not subject to mandatory mediation under the local rules). Furthermore, it is not appropriate for the
court to order Defendants to make a settlement offer. See Local Civil Rule 101(a) ("The rules are
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not intended to force settlement upon any party."). Accordingly, Plaintiffs motion for settlement
negotiations is denied.
C.
Plaintiff's Motion to Compel
Plaintiff seeks an order compelling Defendants to fully respond to his January 2, 2015
requests for production of documents related to Plaintiffs medical records. Pl.'s Mot. [DE-60] at
1-2. Plaintiff contends that Defendants produced selected information and objected to other requests
citing attorney-client privilege. !d. Defendants oppose the motion on the grounds that they have
produced "a complete copy of the medical records ... [Defendants] received from the Department
ofPublic Safety pursuant to [its] request for records, which are the only records Defendants have that
are responsive to [Plaintiffs requests]." Defs.' Resp. [DE-62] at 2. Defendants explain that they
asserted objections to Plaintiffs requests to the extent they requested (1) attorney-client
communications, which would include any communications between Defendants and counsel
regarding Plaintiffs medical records, and (2) documents protected as attorney work-product, which
would include any notes, memoranda, or summaries of counsel regarding Plaintiffs medical records.
!d. at 3-4.
Rule 34 of the Federal Rules of Civil Procedure governs document production requests.
Pursuant to Rule 34, a party may request that the opposing party "produce and permit the requesting
party ... to inspect, copy, test, or sample" relevant documents, electronically stored information, and
tangible things that are within the party's "possession, custody, or control." Fed. R. Civ. P. 34(a)(l).
The party served with a document production request may object to the request if a legitimate basis
for doing so exists. Fed. R. Civ. P. 34(b)(2)(B) & (C).
Motions to compel responses to document production requests are governed by Rule
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37(a)(3)(B) of the Federal Rules of Civil Procedure, which provides that if a party declines to answer
a document production request, the serving party "may move for an order compelling an answer,
designation, production, or inspection." The party resisting discovery bears the burden of showing
why the motion to compel should not be granted. See Mainstreet Collection, Inc. v. Kirkland's, Inc.,
270 F.R.D. 238, 241 (E.D.N.C. 2010) (citing Roesberg v. Johns-Manville Corp., 85 F.R.D. 292,
296-97 (E.D. Pa. 1980) & Rogers v. Tri-State Materials Corp., 51 F.R.D. 234,247 (N.D. W.Va.
1970)). Specifically, the party seeking protection from the court from responding to discovery must
make a particularized showing of why discovery should be denied, and conclusory or generalized
statements fail to satisfy this burden as a matter of law. See Carejirst of Md., Inc. v. Carejirst
Pregnancy Ctrs., Inc., 334 F.3d 390,402-03 (4th Cir. 2003).
Here, Defendants objected to Plaintiffs requests to the extent they sought documents
containing attorney-client communications or attorney work-product related, which is permissible
under the Federal Rules. See Fed. R. Civ. P. 26(b)(l) & (3) (explaining parties may obtain discovery
regarding "any nonprivileged matter" and "a party may not discover documents and tangible things
that are prepared in anticipation of litigation or for trial"). However, Defendants assert that they
have produced the complete copy of Plaintiffs medical records in their possession. Defs.' Resp.
[DE-62] at 2.
Accordingly, Defendants having produced all responsive documents to which
Plaintiff is entitled, the motion to compel is denied.
III. CONCLUSION
For the foregoing reasons, Plaintiffs motion for assistance in locating witnesses [DE-57],
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motion for settlement negotiations [DE-58], and motion to compel [DE-60] are DENIED.
SO ORDERED, the __{'day of May 2015.
&~
RobertiUneS:if:
United States Magistrate Judge
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