Opinion
MASTER FILE 00 Civ. 2843 (LAK).
October 25, 2005
PRETRIAL ORDER NO. 406 (Failure to Provide Expert Reports)
In Pretrial Order No. 370 (Defendants' Motion for a Lone Pine Order), dated April 27, 2005 (Corrected, May 9, 2005) ("PTO-370"), this Court ordered all plaintiffs in this MDL proceeding and their counsel to consult "such medical advisor(s) as they see fit to consult" and "consider whether there are good grounds to continue [their] action[s]." PTO-370, ¶ 1. Those plaintiffs and their counsel who "conclude that there are good grounds to continue prosecuting" their claims "shall serve a Rule 26(a)(2) case-specific declaration, signed and sworn to by a physician or other medical expert ("Expert Report")." Id. The Court set forth the information that must be included in each Expert Report, the supporting documents that must be included with each Expert Report, and a schedule for compliance. Id. ¶¶ 2-6.
PTO-370 states that "[t]he failure to timely serve an expert report with all required information within the time periods prescribed by this order may result in the imposition of sanctions, which may include dismissal of the delinquent plaintiff's action with prejudice." Id. ¶ 7. The Court has been informed that many plaintiffs have failed to comply with PTO-370.
In Exhibit A, defendants have identified certain Rezulin recipients who have failed to provide the required Expert Reports, with the individual civil action numbers assigned to each recipient's case by this Court, and the deadline for each recipient's Expert Report. In Exhibit B, defendants have identified certain recipients who have provided deficient Expert Reports, with the individual civil action numbers assigned to each recipient's case by this Court, the date a deficiency letter was sent, and the deficiencies in each Expert Report. Accordingly, it is hereby
ORDERED as follows:
1. If any plaintiff identified in Exhibit A does not serve an Expert Report with all required information and documents on Defendants' Counsel (Kaye Scholer LLP, New York) within thirty (30) days of the date of entry of this Order, this Court, upon motion, may dismiss the delinquent plaintiff's action with prejudice and/or impose other sanctions, which may include monetary penalties, based upon that plaintiff's willful failure to comply with the Court's discovery orders and/or inability to come forward with sufficient proof of his or her claim.
2. If any plaintiff identified in Exhibit B does not remedy the deficiencies in his or her Expert Report and serve an Expert Report with all required information and documents on Defendants' Counsel within thirty (30) days of the date of entry of this Order, this Court, upon motion, may dismiss the delinquent plaintiff's action with prejudice and/or impose other sanctions, which may include monetary penalties, based upon that plaintiff's willful failure to comply with the Court's discovery orders and/or inability to come forward with sufficient proof of his or her claim.
3. Dismissals made under this Order will dismiss the plaintiff's case in its entirety (as to all named defendants) and will be on the merits, with the intent that any further claim by a dismissed plaintiff arising as a consequence of his or her treatment with Rezulin shall be precluded.
4. The Court also may issue an injunction pursuant to the All Writs Act, 28 U.S.C. § 1651, enjoining plaintiffs and their counsel from re-filing in any court any claim or action so dismissed.
5. Any attorney who represents a plaintiff who has not served an Expert Report with all required information and documents and as to whom a motion to dismiss has been made as provided herein, no later than twenty-one (21) days after the date hereof, shall provide a copy of this Order to that plaintiff and advise that plaintiff of the sanctions and/or judgment that may be imposed. Sanctions may be imposed upon any attorney who fails to notify his or her client as provided herein and the Court may bring such failure to the attention of disciplinary authorities in any state.
6. If counsel for any plaintiff identified in Exhibit A or Exhibit B contends that he or she in fact has served an Expert Report with all required information and documents on counsel for the defendants, such counsel shall notify Defendants' Counsel of that fact within twenty-one (21) days of the date of this Order, together with the date of such service and the name and address of the person upon whom it was served and, upon request of Defendants' Counsel, a copy of the Expert Report, including all necessary documents, previously served.
SO ORDERED.
EXHIBIT