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 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
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.,
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
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.
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