Frankum v. Boston Scientific Corporation

Filing 164

ORDER granting as to Janice Connor, James Goddard, and Doreen Rao, and denying without prejudice as to Robert Miragliulo 137 Motion to Permit Live Trial Testimony via Contemporaneous Transmission; denying 140 Motion to St rike; granting 147 Motion for clarification; denying 151 Motion to Strike. This matter is continued from February mixed term and Ready Date For Trial reset for April 04, 2016 at 9:31 a.m., Courtroom 1, Asheville, NC. Motions in Limine, [143,144,145,146] shall remain on the docket for disposition upon a date closer to trial of this matter. Signed by District Judge Max O. Cogburn, Jr on 01/08/16. (emw) Modified text on 1/8/2016 (emw).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:15-cv-00091-MOC
TERI MATHISON and
)
NORMAN MATHISON,
)
)
Plaintiff,
)
ORDER
)
v.
)
)
BOSTON SCIENTIFIC CORPORATION,
)
)
Defendant.
)
__________________________________________
BERTIE FRANKUM,
)
)
Plaintiff,
)
)
v.
)
)
BOSTON SCIENTIFIC CORPORATION,
)
)
Defendant.
)

THIS MATTER is before the court on several Motions of the parties. The court held a
Final Pretrial Conference in this matter on January 4, 2016, at which time the court addressed
these motions as they relate to the upcoming trial in this case, currently scheduled to begin
February 1, 2016. At that time, the parties discussed with the court the potential benefits to
continuing the upcoming trial to the April 2016 Asheville mixed term. Having conferred with
counsel since the pretrial conference, it appears that all parties wish to have additional time to
prepare for trial. For good cause, the court will grant its own motion to continue this matter to
April. Additionally, for the reasons stated at the hearing and as explained herein, the court will
enter the following Order as to the relief requested by the parties by their motions.
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ORDER
IT IS HEREBY ORDERED THAT:
1. Plaintiffs’ “Motion to Permit Live Trial Testimony via Contemporaneous
Transmission” (#137) is GRANTED as to Janice Connor, James Goddard, and
Doreen Rao, as the court finds that good cause exists and justifies the requested relief
pursuant to Fed. R. Civ. P. 43(a). Counsel is expected to make the necessary
arrangements with court personnel in advance of trial. The relief requested in
Plaintiffs’ Motion (#137) as to Robert Miragliulo is DENIED WITHOUT
PREJUDICE, and Plaintiffs may re-assert such motion pending this court’s ruling on
Plaintiff’s Motion in Limine “regarding the FDA and other regulatory issues” (#144);
2. Defendants’ “Motion to Strike Dr. Vladimir Iakovlev's December 9, 2015 Expert
Report” (#140) is DENIED for the reasons explained at the hearing, and taking into
account the court’s granting of additional time for Defendant to adequately prepare
for the inclusion of such report at trial;
3. Plaintiff’s “Motion to Clarify, or in the Alternative, to Modify, Daubert Ruling in
Relation to Jerry G. Blaivas, M.D.” (#147) is GRANTED to the extent that Plaintiff
seeks to have Dr. Blaivas offer the opinion at trial that polypropylene mid-urethral
slings are not safe in the treatment of stress urinary incontinence, for the reasons
explained at the hearing and taking into account the court’s granting of additional
time for Defendant to adequately prepare for the inclusion of such opinion at trial;
and

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4. Defendants’ “Motion to Strike Plaintiffs’ Improper and Untimely Expert Disclosures”
(#151) is DENIED for the reasons explained at the hearing and taking into account
the court’s granting of additional time for Defendant to adequately prepare for the
inclusion of the reports of Dr. Iakovlev and Dr. Blaivas, the statements and opinions
of physicians Dr. Geller and Dr. Zolnoun, and the to-be-filed report of Dr. Harris in
accordance with the requirements of Rule 26.

IT IS FURTHER ORDERED that the following motions shall remain on the docket for
disposition upon a date closer to trial of this matter:
1. Defendants’ “Motion in Limine” (#143), listing twelve motions in limine;
2. Plaintiffs’ “Motion in Limine No. 1 to Exclude Evidence Related to the FDA 510(k)
Process” (#144);
3. Plaintiffs’ “Motion in Limine No. 2 To Exclude Evidence of AUGS-SUFU Position
Statement” (#146); and
4. Plaintiffs’ “Omnibus Motion in Limine” (#145), asserting Motions in Limine No. 3-6.

IT IS FURTHER ORDERED that this matter be continued from the February mixed
term, and the Clerk of Court is respectfully requested to place this matter on the calendar for a jury
trial in the April 2016 mixed term in Asheville, which commences April 4, 2016.
Signed: January 8, 2016

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