Southworth v. SmithKline Beecham Phar

• Court: District Court, D. New Hampshire
• Decided: July 10, 1997
• Docket: CV-95-447-SD
• Status: Published

Opinion

Southworth v. SmithKline Beecham Phar CV-95-447-SD 07/10/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Janice Southworth; Gregory Southworth

v. Civil No. 95-447-SD

SmithKline Beecham Pharmaceuticals

O R D E R

This matter came before the court for a hearing on a motion

of the defendant SmithKline Beecham Pharmaceuticals seeking a

temporary restraining order (TRO). For reasons that follow, the

court denies the TRO, but makes clear that the testing by

plaintiffs' experts which was the subject thereof is to comply

with all prior and current orders of the court.

1. Background

In this action, plaintiff Janice Southworth claims that her

vaccination with the defendant's hepatitis B vaccine, Energix B,

on October 7, 1992, was causative of the autoimmune disease known

as lupus. As indicated, the present dispute between the parties

centers on the testing of such vaccine by plaintiffs' experts.

Pursuant to prior orders of this court, entered on July 16,

1996 (document 17); September 5, 1996 (document 22); and January 14, 1997 (document 29), such testing was to take place

over a period of 45 days from the date upon which thevaccine was

delivered to plaintiffs' experts (document 17, at 7). The

testing was to be scheduled at times mutually convenient to

plaintiffs' experts and defendant's expert, as defendant's expert

was to be permitted to be present at such testing. Id. The

presence of defendant's expert was to include videotaping of the

testing (document 29, at 4).

By further order of May 6, 1997 (document 33), the court, on

the representation of plaintiffs that additional time was

reguired to complete their testing, extended the pretrial

discovery deadlines in this case. Implicit in such order was

extension of the original 45-day limit for completion of such

testing.1

It now appears that, facing the current deadlines for

disclosure of expert reports, plaintiffs' experts have commenced

and intend to continue additional testing without the presence of

defendant's expert and videographer.2 Accordingly, plaintiffs

1As the court indicated at hearing, defendant's reliance on the original 45-day testing limitation is therefore without merit.

2It is unclear, however, how far such testing has actually proceeded. At hearing, plaintiffs' counsel advised that, due to a recent illness of plaintiff, plaintiff had been unable to provide the necessary blood for use in the additional testing and that her blood for such purpose would not be available until the

2 sought a TRO preventing further testing or, alternatively, a TRO

preventing further testing until an evidentiary hearing could be

held for the purpose of resolving the parameters of such testing.

2. Discussion

Where, as is here the case, a TRO is before the court on

notice, it may be treated by the court as a motion for a

preliminary injunction. 13 M o o r e 's F e d e r a l Practice § 65.31, at 65-

79 (3d ed. 1997); 11A W r i g h t , M i l l e r & Ka n e , Federal Practice and

P r o c e d u r e : C ivil 2 d § 2951, at 254-55 (1995) . Injunctive relief is

an extraordinary remedy that can be invoked only when other

action at law is unavailable. In this circuit, consideration of

the appropriateness of a preliminary injunction reguires the

court to consider (1) the likelihood of success on the merits;

(2) the potential for irreparable harm if the injunction is

denied; (3) the balance of relevant hardships; and (4) the effect

(if any) of the court's ruling on the public interest. Ross-

Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 15 (1st

Cir. 1996). The likelihood of success is the most important of

the foregoing factors. Id. at 16.3

middle of the week of July 14, 1997.

3The court finds that defendant could not win on the likelihood of success factor at this time and on the record presently before the court.

3 The court here finds that its following rulings are

sufficient to obviate the need for further consideration of

injunctive relief. Plaintiff's counsel has represented that the

current August 2, 1997, deadline for disclosure of his expert

reports has caused his experts to attempt to continue with

testing without the presence of defendant's representatives. He

advises that an extension of 30 days would obviate much of the

problem presently before the court.

Accordingly, the court has ordered an extension of all

pretrial deadlines for an additional 30 days. The court has

further found and ruled that any testing done by plaintiffs'

experts which was completed without notice to and the opportunity

of defendant's representatives to accept or decline an invitation

to be present thereat will be excluded from evidence at the trial

of this case. It behooves the parties to make their very best

efforts to mutually accommodate each other so that the testing

can go forward and be completed within the newly established

deadlines.

3. Conclusion

Any further testing by plaintiffs' experts is to be

conducted only on sufficient notice to defendant's

representatives to permit them, if they desire to do so, to be

4 present at such testing. Any testing that has been conducted

without the opportunity of defendant's representatives, if they

desired to do so, to be present thereat will be excluded as

evidence at the trial of this case. The discovery deadlines are

herewith extended as follows:

a. Disclosure of plaintiffs' expert reports from August 2,

1997, to September 2, 1997;

b. Disclosure of defendant's expert reports from

September 2, 1997, to October 2, 1997;

c. Deadline for dispositive motions from November 15, 1997,

to December 15, 1997;

d. Completion of discovery from December 1, 1997, to

January 1, 1998; and

e. Trial schedule from February 1998 to March 1998.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

July 10, 1997

cc: All Counsel