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In re Avandia Marketing, Sales Practices And Products Liability Litigation

United States District Court, E.D. Pennsylvania

January 20, 2017

GSK THIS DOCUMENT APPLIES TO Hassan Nos. 07-md-1871, 11-cv-1029


          RUFE, J.

         I. Introduction

         Before the Court are motions filed by Defendant GlaxoSmithKline (“GSK”) and Levi Hawkins, the legal representative of Plaintiff Lucinda Hassan's estate. For reasons that follow, the Court will grant GSK's Motion to Dismiss for Failure to Comply with Pretrial Order No. 236, deny Mr. Hawkins's Motion for an Extension of Time, and dismiss the remaining motions as moot.

         II. Background

         Plaintiff Lucinda Hassan initiated this lawsuit on December 20, 2010, alleging that she suffered cardiovascular injury as a result of her use of the diabetes drug Avandia. On August 30, 2011, the Court administratively stayed Ms. Hassan's case after it became subject to a Master Settlement Agreement between Ms. Hassan's counsel and GSK. Ms. Hassan's counsel secured a settlement, which at her request they rejected and successfully appealed to secure a larger settlement, which Ms. Hassan also rejected.[1] Ms. Hassan apparently had been submitting “voluminous written demands and legal and medical arguments” to the administrator of the mass settlement without consulting her lawyers, [2] and her lawyers moved to withdraw “when it became apparent that Ms. Hassan elected to accept non-attorney advice that was diametrically opposed to presently available data . . . and that [counsel] was not able to pursue many of the positions and claims and demands insisted upon” by Ms. Hassan.[3] The Court granted counsel's motion to withdraw on April 22, 2014, and Ms. Hassan filed an amended complaint pro se on June 18, 2014.[4]

         The amended complaint alleges that Ms. Hassan's Avandia use required her to undergo two coronary artery bypass surgeries in May and September 2003, and caused her to suffer a stroke in May 2011.[5] Her Avandia use also allegedly caused her to require a third coronary artery bypass surgery in May 2013.[6] The amended complaint alleges two counts of strict product liability: failure to warn and design defect.[7]

         On April 16, 2015, the Court issued Pretrial Order No. 236 (“PTO 236”), which instructed plaintiffs in various Avandia actions, including Ms. Hassan, to produce a Rule 26 report.[8] PTO 236 required that the report be signed and sworn by a licensed physician, and that it contain the following information:

a. The plaintiff's name, address, and date of birth;
b. The name, complete professional address, license number, and curriculum vitae of the expert;
c. The name, professional address, and license number of any physician(s) who prescribed Avandia to the plaintiff or treated plaintiff for the specified, alleged Avandia-related injuries;
d. The complete dates on which the plaintiff used Avandia, along with copies of all records relied upon as evidence of use;
e. A determination that the plaintiff suffered an injury during or after cessation of Avandia usage and identification and description of the specific injury allegedly sustained; the expert shall support his or her determination that such an injury occurred by listing all records reviewed and providing copies of the records relied upon;
f. The complete dates of onset of the Avandia-related injuries, the dates of all records that document onset of the injuries, and copies of those records;
g. The expert's opinion that, to a reasonable degree of medical certainty, each alleged injury was caused by Plaintiff's ingestion of Avandia, along with the basis and reasons for holding that opinion and copies of records relied upon; and
h. All grounds for opinions expressed by the expert and any supporting documents.[9]

         PTO 236 also stated that “[i]f any plaintiff fails to timely provide the required Rule 26 Report and Documents, Defendant may send a Notice of Deficiency to the plaintiff's attorney. The deficiency letter shall state that the plaintiff has fourteen (14) days to cure the deficiency, and that Defendant will move for dismissal of the plaintiff's claims if the deficiency is not cured.”[10] Pursuant to PTO 236, Ms. Hassan was to submit a Rule 26 Report no later than June 15, 2015. She did not. Counsel for GSK sent Ms. Hassan two Letters of Deficiency, on June 16 and July 17, 2015, respectively, but the letters were returned to GSK because Ms. Hassan “failed to claim” them.[11]

         On July 20, 2015, Ms. Hassan filed a request for appointment of counsel, which the Court denied.[12] She attached to the motion a “Rule 26 Report and Documents” and a copy of PTO 236. Her report does not contain an expert opinion, but rather is compiled and signed by Ms. Hassan. The report does not comply with PTO 236 because, among other reasons, it is not “signed and sworn by a licensed physician.”

         GSK moved to dismiss the case based on Ms. Hassan's failure to comply with PTO 236 on August 20, 2015.[13] On January 28, 2016, Ms. Hassan filed interrogatories and document requests, which GSK subsequently moved to quash as premature.[14]

         Ms. Hassan passed away on February 7, 2016.[15] On May 20, 2016, Levi Hawkins, as legal representative of the estate of his grandmother Lucinda Hassan, moved to substitute himself as the named party in the complaint. Attached to his motion is Ms. Hassan's autopsy report, which appears to be offered as a second attempt to satisfy the requirements of PTO 236.[16]

         Mr. Hawkins then filed a motion for leave to file a fourth amended complaint, seeking leave to amend the caption of the complaint to include himself, Adrian J. Wiggins (Ms. Hassan's son), and Lavette Abdelwhaid (Ms. Hassan's daughter).[17] Mr. Hawkins did not attach a proposed fourth amended complaint to the motion. The Court issued an Order on November 4, 2016 denying both the motion to amend and the motion to substitute without prejudice because representative parties such as guardians or executors must be represented by counsel.[18] The Order also stated that “if counsel does not enter an appearance on behalf of the estate by December 23, 2016, the case will be dismissed.”[19]

         On December 27, 2016, Mr. Hawkins filed a motion for an extension of time to obtain counsel to represent Ms. Hassan's estate. In it, he names various lawyers who have declined representation and their reasons for doing so, and concludes by requesting an extension of time to “obtain counsel and re-obtain the medical records within the statutory limitation noted by this Court.”[20] In the alternative, Mr. Hawkins requests that the Court appoint him counsel.

         III. Standard of Review

         A court may dismiss an action for failure to comply with a discovery order. Federal Rule of Civil Procedure 37(b)(2)(A)(v) states, in relevant part:

(b) Failure to Comply with a Court Order.. . .

(2) Sanctions in the District Where the Action Is Pending.

(A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent--or a witness designated under Rule 30(b)(6) or 31(a)(4)--fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:

. . .

(v) dismissing the action or proceeding in whole or in part . . .[21]

         Additionally, pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an action based on a litigant's failure to comply with a court order or failure to prosecute.[22] Regarding dismissal for failure to comply, the Third Circuit has stated, ‚Äúdismissal is a drastic sanction and should be reserved for those ...

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