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Atkinson v. Ethicon, Inc.

United States District Court, W.D. Pennsylvania

July 11, 2019

BARBARA M. ATKINSON, et al., Plaintiffs,
v.
ETHICON, INC., Defendant.

          MEMORANDUM ORDER

          Cathy Bissoon Judge

         Pending before the Court are two motions: a Motion for Summary Judgment (Doc. 16) and a Motion to Strike the Late Report and Opinions of Dr. William Porter (“Dr. Porter”) or Alternatively to Extend Deadlines (Doc. 25), both filed by Defendant Ethicon, Inc.

         For the reasons below, both motions will be granted.

         BACKGROUND

         All of Plaintiffs' claims stem from the implantation of Gyencare Transvaginal Tape, a product made and sold by Defendant, which allegedly caused Plaintiff Barbara Atkinson to suffer severe injuries and caused her husband, Plaintiff Roy Atkinson, to suffer loss of consortium. (Complaint, Doc. 1.)

         Defendant removed this action to this Court on May 20, 2013. (Doc. 1.) Shortly thereafter, on June 19, 2013, the United States Judicial Panel on Multidistrict Litigation (“JPML”) transferred this case to the United States District Court for the Southern District of West Virginia for coordinated or consolidated pretrial proceedings. (Doc. 5.)

         On April 26, 2019, after the completion of pretrial proceedings, the JPML remanded this action to the undersigned. On May 8, 2019, the Court issued an order providing, in relevant part, that “[g]oing forward, the Court will require compliance with the Local Rules of Court for the Western District of Pennsylvania as well as the undersigned's Practices and Procedures.” (Doc. 10.)

         The Court held a telephonic conference on May 13, 2019 (Doc. 15), at which the parties apprised the Court of the status of this case and their positions concerning discovery. At the conference, the Court affirmed that discovery in this case had been closed for nearly seven months and ordered that discovery would not be reopened.[1] Following the conference, the Court issued a Case Management Order (Doc. 19), which provided that “[d]iscovery in this matter is closed.” (Id. at ¶ 1.) Additionally, to ensure that all documents relevant to the parties' dispute would be filed on the docket of this Court in the form required by the Local Rules and the undersigned's Practices and Procedures, the Court ordered the parties to “refile their respective motions and relevant documents on the docket for this Court” in accordance with those procedures. (Id. at ¶¶ 2, 4.) Documents that were not filed on the docket for this Court, or that were filed contrary to the manner prescribed by the Local Rules, are not part of the summary judgment record that the Court will consider.

         Despite the Court's intention to manage these proceedings through its orders-orders which, to repeat, required compliance with the Local Rules and the undersigned's Practices and Procedures, and affirmed that discovery was closed-the parties have not complied with those orders or have simply ignored them. The Court's task has grown more complex because, as described below, so many of the parties' filings contain information that the Court will not consider.

         Defendant filed its Motion for Summary Judgment on May 14, 2019. Defendant's motion does not comply with the Local Rules as Defendant did not file a concise statement of material facts or an appendix of supporting documents.[2] LCvR 56.B.1, 56.B.3.

         Plaintiffs moved for an extension of time to respond on the ground that they wished to prepare an expert report. (Doc. 20.) As discovery in this matter had been closed, the Court promptly and summarily denied that request. (Doc. 21.)

         Undeterred by the Court's prior orders, Plaintiffs filed a Response to Defendant's Motion for Summary Judgment (Doc. 22), with a supporting brief (Doc. 23) that includes the newly prepared expert report and argues that such a report renders Defendant's motion moot. Like Defendant's motion, Plaintiffs' response does not comply with the Local Rules, as Plaintiff has not filed a responsive concise statement of material facts or an appendix of documents.[3] LCvR 56.C.1, 56.C.1.3.

         Defendant then filed a motion to strike the expert report (Doc. 25) on June 20, 2019, and the Court set a deadline of July 1, 2019 for Plaintiff's response, if any, to that motion, (Doc. 27). As of today, Plaintiff has not ...


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