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United States District Court, S.D. New York

February 20, 2004.

DONNA M. PAVLOU, et al., Plaintiffs, -against- BAXTER HEALTHCARE CORP., et al., Defendants

The opinion of the court was delivered by: RICHARD J. HOLWELL, District Judge

Memorandum Opinion and Order

This case, a latex glove product liability action, was one of many cases consolidated for pre-trial discovery before the Eastern District of Pennsylvania by the Judicial Panel for Multidistrict Litigation. It was later remanded back to the Southern District of New York pursuant to another Judicial Panel order, dated February 23, 2003, and originally assigned to the Honorable Kimba M. Wood. On July 22, 2003, Judge Wood referred the matter for general pre-trial management to the Honorable Kevin N. Fox, United States Magistrate Judge for the Southern District of New York. The case was reassigned to this Court on December 29, 2003; however, Judge Fox has continued to manage this matter pursuant to Judge Wood's referral order.

Plaintiffs objects to part of Judge Fox's order, dated January 16, 2004, which states "should the plaintiffs desire to elicit case-specific expert testimony from Dr. Gary Stadtmauer, as contemplated by the Multi-District Litigation ["MDL"] Remand Order, the plaintiffs must comply fully with Fed.R.Civ.P. 26(a)(2)(B)." Order of Jan. 16, 2004, at ¶ 5. Rule 26(a)(2)(B) directs parties who retain an expert witness to provide Page 2 to other parties a written report of the expected expert testimony, including the bases for the testimony and the witness's credentials. See Fed.R.Civ.P. 26(a)(2)(B).

  Plaintiffs argue that the report submitted by Dr. Stadtmauer should be deemed sufficient to satisfy the federal rule because the order does not explain how the report is deficient. See Pl.'s Partial Objections to Mag.'s Rulings and Order of Jan. 16, 2004, at ¶ 5 (hereinafter "Objections"). Plaintiffs further argue that Judge Fox's order, by addressing "case-specific expert testimony," wrongly precludes plaintiffs from employing Dr. Stadtmauer to address general issues. See Objections at ¶ 3. Precluding plaintiffs from using Dr. Stadtmauer to testify as to general issues, plaintiffs argue, is contrary to previous MDL orders and "is tantamount to denying her the right to retain her own expert, deprives her of her right to trial by jury, her right to counsel of choice, and to due process of law". See id. at ¶¶ 6-8. Plaintiffs also note the practical difficulties of using the MDL-designated expert, who resides in California, versus Dr. Stadtmauer, who is located in New York. See id. at ¶ 9. Plaintiffs ask this Court to (a) modify the January 16 order to allow Dr. Stadtmauer to testify as a general and case-specific expert witness and (b) direct Judge Fox to clarify how the expert report falls short of Rule 26(a)(2)(B).

  Counsel for defendant objects to the modification of the January 16 order. See Letter from Henry H. Janssen to the Hon. Richard J. Holwell, dated Feb. 6, 2004 (hereinafter "Letter"). The defendant argues that Dr. Stadtmauer was properly precluded as a general expert and was precluded in accordance with previous MDL orders. See Letter, pp. 2-3. Defendant argues that plaintiffs did not disclose Dr. Stadtmauer as a possible general expert until now and that, unlike the MDL-designated general expert, Dr. Stadtmauer was not deposed or subject to Daubert screening during the MDL Page 3 proceedings. See id. Defendant argues that the purpose of MDL consolidation would be vitiated if plaintiffs were allowed to present a new general expert, forcing defendants to repeat depositions and Daubert analysis on grounds already covered under the MDL. See id., pp. 3-4. Defendant also argues that Dr. Stadtmauer's report contains opinions that failed the MDL Daubert examination and that the January 16 order correctly rejects Dr. Stadtmauer's report pursuant to Rule 26(a)(2)(B) because the report offers general, not case-specific, opinions. See id., pp. 4-5.

  A district court reviews orders issued by a magistrate judge regarding nondispositive pretrial matters under the "clearly erroneous or contrary to law" standard. See Thomas E. Hoar. Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). A matter is nondispositive if it "does not dispose of the litigation". Nikkal Indus., Ltd. v. Salton, Inc., 689 F. Supp. 187, 189 (S.D.N.Y. 1988). Matters concerning discovery generally are considered nondispositive, see Hoar, 900 F.2d at 525, as are decisions to admit or exclude expert testimony. See Rmed lnt'l, Inc. v. Sloan's Supermarkets, Inc., No. 94 Civ. 5587 (PKL), 2000 WL 420548, at *2 n.1 (S.D.N.Y. Apr. 18, 2000).

  "A finding is `clearly erroneous' when, although there is evidence to support it, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed." Nikkal, 689 F. Supp. at 189 (citations omitted). "It is well-settled that a magistrate judge's resolution of a nondispositive matter should be afforded substantial deference and may be overturned only if found to have been an abuse of discretion." Rmed, 2000 WL 420548, at *2.

  Having reviewed the entire record, this Court cannot conclude that the January 16 order was clearly erroneous. The Court is persuaded that MDL consolidation Page 4 would be poorly served if parties were forced to engage in duplicative discovery on expert evidentiary matters that were already the subject of discovery during the MDL proceedings. Plaintiffs received all the process that was their due before the Judicial Panel issued its Remand Order closing common fact and generic issue expert discovery. If plaintiffs seek clarification of the January 16 order with respect to compliance with Rule 26(a)(2)(B), they should seek guidance from Judge Fox rather than ask this Court to modify the order. For these reasons, the Court declines to modify or set aside that portion of the January 16 order to which plaintiffs object.

  SO ORDERED. Page 1


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