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United States District Court, S.D. New York

July 27, 2004.

In re: REZULIN PRODUCTS LIABILITY LITIGATION (MDL No. 1348). This Document Relates to: 03 Civ. 1756, 03 Civ. 1758, 03 Civ. 1762, 03 Civ. 1763, 03 Civ. 1764, 03 Civ. 1765, 03 Civ. 1766, 03 Civ. 1769, 03 Civ. 1770, 03 Civ. 1773, 03 Civ. 1778, 03 Civ. 1779, 03 Civ. 1780, 03 Civ. 3471, 03 Civ. 3472, 03 Civ. 3473, 03 Civ. 3476, 03 Civ. 3478, 03 Civ. 3479, 03 Civ. 3480, 03 Civ. 3481, 03 Civ. 3483, 03 Civ. 3483, 03 Civ. 3485.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

PRETRIAL ORDER NO. 299 (Motion for Reconsideration of Sanctions by Certain Plaintiffs Represented by Girardi & Keese)
In a June 21, 2004, memorandum opinion the Court granted the manufacturer defendants' Rule 37(b)(2) motion to dismiss the actions of several hundred plaintiffs, including several represented by the firm of Girardi & Keese, as a sanction for willful noncompliance with discovery orders.*fn1 The firm, on behalf of 37 clients, now moves for reconsideration on the grounds that the Court allegedly overlooked facts relating to these plaintiffs' purported service of discovery material.

Defendants concede the motion as to 17 plaintiffs*fn2 but oppose it as to all the others. The 17 plaintiffs are ones whom the Girardi firm initially — i.e., in their opposition to the sanctions motion categorized as having failed to serve timely Fact Sheets.*fn3 but as to whom the same firm now provides defendants with satisfactory proof of timely and complete discovery on or before the January 9, 2004.*fn4

  As to the remaining plaintiffs — all of whom were in material and willful breach of discovery orders as set forth in the Court's opinion — the motion for reconsideration is denied. The Court overlooked no facts concerning these plaintiffs, but rather meticulously considered the circumstances of each one as it was presented by their counsel. Moreover, the plaintiffs' moving papers are filled with legal arguments and authorities that are made for the first time on this application, and they are in stark contrast to the opposition papers that were filed in response to the defendants' sanctions motion, which were telegraphic in length and devoid of any legal arguments or citations to relevant authority.*fn5 Nor are the belatedly asserted arguments helped by the newly-filed twelve inches of irrelevant exhibits consisting of copies of transmittal letters and inadequate discovery materials served, on behalf of each plaintiff, by the Girardi firm on defense counsel. To the contrary, these materials only corroborate counsel's admission from the outset that, except for the 17 plaintiffs discussed above, its clients failed to comply with the final January 9, 2004 deadline.

  The Court therefore will disregard all of the legal matter that plaintiffs raise now for the first time. In any event, the motion is baseless for the additional reason that all of the arguments now made — the main tenor of which is that dismissal is inappropriate because some plaintiffs made belated and piecemeal attempts at compliance after the defendants moved for sanctions — were considered fully and rejected by the Court for the reasons carefully set forth in its memorandum opinion. The Girardi firm's suggestion that its clients' discovery failures should be excused because this was a "complex discovery procedure[]" is not only untimely, but completely frivolous in light, among other things, of Mr. Girardi's extensive experience in the Rezulin litigation.*fn6

  Accordingly, the motion for reconsideration [00 Civ. 2843, docket items 2174, 2279, 2280] is granted as to the 17 plaintiffs listed in note 1 of this order and so much of the Court's June 21, 2004 opinion as imposed sanctions and injunctive relief on those plaintiffs is vacated. The motion is denied in all other respects.


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