FRECH et al v. HORIZON MEDICAL PRODUCTS

Filing 20

ORDER. Plaintiff's Motion (Doc. 15 ) to voluntarily dismiss this case without prejudice is GRANTED; the unrelated Motion (Doc. 17 ) for a protective order is DENIED AS MOOT; and this case is DISMISSED WITHOUT PREJUDICE under Federal Rule of Civil Procedure 41(a)(2). Signed by Judge Cathy Bissoon on 2/19/15. (dcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JACOB D. FRECH, et al.,
Plaintiffs,
v.
HORIZON MEDICAL PRODUCTS,
et al.,
Defendants.

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Civil Action No. 14-100
Judge Cathy Bissoon

ORDER
Plaintiffs’ Motion (Doc. 15) to voluntarily dismiss this case, without prejudice, will be
granted.
Plaintiffs represent, and Defendants do not dispute, that, four months after the Court’s
initial Case Management Conference, Plaintiffs’ counsel began contacting treating-physician
Dr. Burns to obtain a narrative report. Plaintiffs’ counsel repeatedly requested information from
Dr. Burns, on a weekly, and eventually daily, basis until the physician advised that the childPlaintiff suffered no risk as a result of the partial medical implant remaining in his body.
See Pls.’ Br. (Doc. 16) at 2-3. Less than a month after receiving this information, Plaintiffs filed
their Motion to voluntarily dismiss. Id.
The Court generally agrees with Defendants that, in some respects, Plaintiffs more timely
could have prosecuted this case. Defendants, however, joined a Motion to extend discovery
(Doc. 14), outlining the parties’ litigation efforts, including Plaintiffs’ production of over 4,000
documents in response to written discovery. In light of the efforts summarized in the Joint

Motion, the Court finds unduly harsh Defendants’ suggestion that Plaintiff has not prosecuted
this case in good faith.1
Having weighed all of the relevant factors under Rule 41(a), the Court finds that concerns
regarding undue prejudice are outweighed by the relatively early procedural posture of this case,
and Plaintiffs’ timeliness in seeking dismissal once they learned of the treating physician’s
assessment. The Court also believes that it should not lose sight of the subject matter of this
case, namely, the welfare of an eight-year-old child with a partially-irremovable medical device
lodged in his chest. Although the treating physician currently has no reason to believe that the
device poses a risk, the interests of justice counsel in favor of making the dismissal without
prejudice, in the event that circumstances may change.
Consistent with the foregoing, Plaintiff’s Motion (Doc. 15) to voluntarily dismiss this
case without prejudice is GRANTED; the unrelated Motion (Doc. 17) for a protective order is
DENIED AS MOOT; and this case is DISMISSED WITHOUT PREJUDICE
under Federal Rule of Civil Procedure 41(a)(2).
IT IS SO ORDERED.

February 19, 2015

s\Cathy Bissoon
Cathy Bissoon
United States District Judge

cc (via ECF email notification):
All Counsel of Record

1

Cf. Defs.’ Opp’n Br. (Doc. 19) at 6.
2