Thoma v. A.H. Robins Co.

100 F.R.D. 344, 1983 U.S. Dist. LEXIS 12065
CourtDistrict Court, D. New Jersey
DecidedNovember 2, 1983
DocketCiv. A. No. 80-1745
StatusPublished
Cited by4 cases

This text of 100 F.R.D. 344 (Thoma v. A.H. Robins Co.) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thoma v. A.H. Robins Co., 100 F.R.D. 344, 1983 U.S. Dist. LEXIS 12065 (D.N.J. 1983).

Opinion

OPINION

BROTMAN, District Judge.

Presently before the court are three motions, two by defendant A.H. Robins, and one by plaintiff Marcie Thoma. Defendant makes a motion in limine to exclude evidence that it believes is irrelevant to the present case, a suit for injury allegedly caused by defendant’s Daikon Shield, an intrauterine contraceptive device (“IUD”). Defendant’s other motion asks the court to admit out-of-state counsel pro hac vice. Plaintiff moves to strike defendant’s motion in limine as a sham pleading pursuant to Fed.R.Civ.P. 11. Jurisdiction is conferred on this court by 28 U.S.C. § 1332, diversity of citizenship of the parties. For the reasons which follow, both of defendant’s motions will be denied and plaintiff’s motion will be dismissed.

Procedural history of the case

Plaintiff filed her complaint on June 12, 1980. Throughout the course of this case, the court has received submissions by defendant that were not tailored to the issues in the present case, but were apparently submissions used in other cases. This has caused considerable delay in handling the case, prevented meaningful discovery and hindered the efforts of the Federal Magistrate to prepare this case for trial. A few examples will suffice.

Magistrate James F. Hammill, in his Letter Opinion and Order of May 25, 1983, discussed defendant’s Exhibit List. He stated:

At the conference on the afternoon of May 23, 1983, defense counsel submitted as an annexed exhibit list a list of exhibits apparently taken from the case of Williams v. A.H. Robins Company, Inc., et al in the Eighteenth Judicial District of Sedgwick County, Kansas, Civil Department. The list contained exhibits numbered consecutively from 1,000 up to and including 1,591. The list does not appear to be tailored to the above-captioned civil action pending in the United States Courts and such a highly generalized cursorily prepared list from a case of uncertain and unknown origin is of little pertinence and assistance to the court as an exhibit list in a Joint Final Pre-Trial Order that is submitted consistent with the Federal Rules of Civil Procedure and the Rules of Practice and Procedure in this District. Accordingly, defense counsel was directed to revise, renumber and coordinate the exhibit list with the proposed exhibit list of counsel for plaintiff so that it would be both better referenced and more importantly, germane to the litigation before the court. The revised exhibit list is due on or before the close of the business day on May 31, 1983.

On May 31, 1983, defendant submitted the identical exhibit list which it had previously submitted. In a Letter Order of June 10, 1983, Magistrate Hammill commented:

In passing, I note that Robins has seen fit to submit this very same exhibit list in the case of Griffin v. A.H. Robins, Civil Action No. 81-3148 pending before Judge Cohen in this court.
Despite my directives, defense counsel has not even renumbered the list and referenced it in the fashion that counsel for plaintiff did. Defense counsel was directed to do this in my letter of May 25, 1983 at page 2.

A second example of defendant’s non-responsive and generalized submissions concerns the testimony of defendant’s expert witnesses. At the preliminary pretrial conference of December 30, 1980, defendant agreed to produce reports of its experts. More than a year passed and still defendant [346]*346did not produce any reports of experts. On January 19, 1982, defendant wrote to Magistrate Hammill that

with regard to the answers to interrogatories, the questions deal with experts and I have not obtained any experts to date.... If your Honor insists that I try to obtain experts’ reports before the [March 24] conference, I would ask that I at least be given until the date of the conference to do so....

Correspondence of Michael B. Oropollo, January 19, 1982.

On December 2, 1982, Magistrate Ham-mill conducted a pretrial conference call. He entered an order directing defendant to

provide experts’ reports to the plaintiff not later than February 1, 1983, and based upon the history of this case, if that is not done, I shall recommend to Judge Brotman that the defenses of the defendant be stricken and that the matter proceed to judgment after a hearing to determine the nature and extent of plaintiff’s damages.

On January 28, 1983, defendant produced six experts’ reports of which plaintiff contends that five contained

boiler plate paragraphs which had been prepared for litigation in hundreds of other cases and in no way specifically addressed the issues involved in this case. No “report” was more than a paragraph.

Plaintiff’s Opposition Brief at 7. Plaintiff moved to strike five of the expert reports. In a Letter Opinion of May 25, 1983, Magistrate Hammill concluded that

the “reports” of these physicians ... do not give the substance of the facts and opinions to which each expert is expected to testify as required by [Fed.R.Civ.P. 26(b)(4) ]. [emphasis in original].

Moreover, Magistrate Hammill concluded that the experts were not retained in anticipation of the present litigation, but for other trials. This court will quote Magistrate Hammill’s Order at length in order to convey the substance and tone that he found was appropriate on the issue of expert witnesses:

It is clear to the court and admitted by defense counsel that the above five physicians have been retained by A.H. Robins not in anticipation of the above litigation pending in this court but rather for other cases. The court is troubled by the fact that only after orders compelling defendant to generate experts reports were the above five physicians names given to counsel for plaintiff and the “reports” of these physicians given to counsel for plaintiff do not give the substance of the facts and opinions to which each expert is expected to testify as required by the Federal Rules of Civil Procedure and they certainly do not present the facts or data in this case upon which these experts base their opinions as envisaged by Federal Rule of Evidence 703. Further, as a practical matter, the defense tenders to counsel for plaintiff five individuals drawn from a Multi-District Litigation as experts who may or may not testify in this case and invites counsel for plaintiff, at a rather distant point in the development of this case, to engage in the time consuming and expensive process of attempting to depose these witnesses who are, for the most part, outside the District of New Jersey.

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Bluebook (online)
100 F.R.D. 344, 1983 U.S. Dist. LEXIS 12065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thoma-v-ah-robins-co-njd-1983.