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IN RE REZULIN PRODUCTS LIABILITY LITIGATION

United States District Court, S.D. New York


August 22, 2005.

In re: REZULIN PRODUCTS LIABILITY LITIGATION (MDL No. 1348). This document relates to: Qunnie Mae Denton o/b/o Jimmie Lee Perkins Civil Action No. 02 Civ. 1715LAK.

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

MOTION FOR ADDITIONAL TIME TO FILE CASE-SPECIFIC EXPERT WITNESS DECLARATION
COMES NOW Plaintiff Qunnie Mae Denton o/b/o Jimmie Lee Perkins ("Plaintiff") and files this Motion for Additional Time to File Case-Specific Expert Designation and, in support thereof, would show unto the Court the following:

1. Plaintiff's current deadline for filing her case-specific expert declaration is August 1, 2005.

  2. Plaintiff's counsel is also counsel of record for over 100 other Rezulin plaintiffs. Plaintiff's counsel is in the process of resolving all of these cases, but, at present, the expert retained for Plaintiff's specific case cannot give Plaintiff's counsel enough information for Plaintiff's counsel to adequately file a declaration by August 1, 2005.

  3. Therefore, Plaintiff's counsel respectfully requests an extension of time, until August 13, 2005, in which to file the case specific expert declaration.

  4. Plaintiff's counsel has discussed the present motion with counsel for Defendant and she has no objection to the requested extension.

  SO ORDERED. MOTION TO DISMISS DEFENDANT COOPER McINTOSH, M.D.

  COMES NOW, defendant Cooper McIntosh, M.D., by and through his attorneys of record, and move the Court to dismiss him, with prejudice, in the above-styled and numbered cause, and in support would show unto the Court the following:

  1. On January 23, 2002, plaintiffs filed a Complaint in the Circuit Court of Holmes County, Mississippi naming Dr. McIntosh as a defendant.

  2. On May 7, 2002, this case was removed by Warner-Lambert Company and Pfizer, Inc. to the Untied States District Court for the Southern District of Mississippi, Jackson Division; Civil Action NO. 3:02CV446. On July 24, 2002, this case was transferred to the Rezulin MDL.

  3. Although the plaintiffs originally joined Dr. McIntosh as a defendant, once the case was removed by the diverse defendants on fraudulent joinder grounds, no motion to remand was filed, such that the plaintiffs have effectively conceded that no claim is being made against the physician defendants, including Dr. McIntosh.

  4. Other defendant doctors in similar cases have been dismissed due to the plaintiffs' failure to demonstrate a possibility of recovery against the non-diverse physician defendants.

  5. It is clear from the plaintiffs' election not to move for remand that they concede

  SO ORDERED. MOTION TO DISMISS DEFENDANT H. FRANK HOWELL, M.D.

  COMES NOW defendant H. Frank Howell, M.D., by and through his attorneys of record, and moves the Court to dismiss him, with prejudice, in the above-styled and numbered cause, and in support thereof would state as follows:

  1. In PTO 279, issued on June 3, 2004, this Court determined that, based on the May 13, 2004 report and recommendations of Magistrate Judge Katz, Plaintiffs' motion to remand should be denied. This recommendation included a finding that the Plaintiffs failed to demonstrate a possibility of recovery against the non-diverse physician defendants, including Dr. Howell, who is therefore entitled to be dismissed from this action.

  WHEREFORE, PREMISES CONSIDERED, defendant H. Frank Howell, M.D. moves the Court to dismiss him, with prejudice, herein.

  SO ORDERED. MOTION TO DISMISS DEFENDANT ERIC HARDING, M.D.

  COMES NOW defendant Eric Harding, M.D., by and through his attorneys of record, and moves the Court to dismiss him, with prejudice, in the above-styled and numbered cause, and in support thereof would state as follows:

  1. In PTO 279, issued on June 3, 2004, this Court determined that, based on the May 13, 2004 report and recommendations of Magistrate Judge Katz, Plaintiffs' motion to remand should be denied. This recommendation included a finding that the Plaintiffs failed to demonstrate a possibility of recovery against the non-diverse physician defendants, including Dr. Harding, who is therefore entitled to be dismissed from this action.

  WHEREFORE, PREMISES CONSIDERED, defendant Eric Harding, M.D. moves the Court to dismiss him, with prejudice, herein.

  SO ORDERED. MOTION TO DISMISS DEFENDANT JUDY STEVENS, F.N.P.

  COMES NOW defendant Judy Stevens, F.N.P., by and through her attorneys of record, and moves the Court to dismiss her, with prejudice, in the above-styled and numbered cause, and in support thereof would state as follows:

  1. In PTO 279, issued on June 3, 2004, this Court determined that, based on the May 13, 2004 report and recommendations of Magistrate Judge Katz, Plaintiffs' motion to remand should be denied. This recommendation included a finding that the Plaintiffs failed to demonstrate a possibility of recovery against the non-diverse physician defendants, including Nurse Stevens, who is therefore entitled to be dismissed from this action.

  WHEREFORE, PREMISES CONSIDERED, defendant Judy Stevens, F.N.P. moves the Court to dismiss her, with prejudice, herein.

  SO ORDERED. MOTION TO WITHDRAW AND FOR LEAVE TO SUBSTITUTE NEW COUNSEL

  Edley H. Jones, III and the law firm of Edley H. Jones, III move this Court for leave to withdraw as counsel of record for Defendant, Wal-Mart Stores, Inc., and that Luke Dove, and the law firm of Dove & Chill be substituted as counsel for Defendant, Wal-Mart Stores, Inc.

  I.

  Defendant, Wal-Mart Stores, Inc., Luke Dove, and the law firm of Dove & Chill agree to the withdrawal and substitution of counsel.

  II.

  The withdrawal and substitution of counsel is not for purposes of delay and will not delay any action in this matter. The case is not currently set for trial.

  III.

  The Defendant, Wal-Mart Stores, Inc., has recently entered into an Indemnity Agreement with Warner Lambert in this case and as a condition of the Agreement, Luke Dove is to represent retail counsel. See Affidavit attached as Exhibit "A".

  SO ORDERED. MOTION TO DISMISS DEFENDANT CHARLES GUESS, M.D.

  COMES NOW defendant Charles Guess, M.D., by and through his attorneys of record, and moves the Court to dismiss him, with prejudice, in the above-styled and numbered cause, and in support thereof would state as follows:

  1. In PTO 279, issued on June 3, 2004, this Court determined that, based on the May 13, 2004 report and recommendations of Magistrate Judge Katz, Plaintiffs' motion to remand should be denied. This recommendation included a finding that the Plaintiffs failed to demonstrate a possibility of recovery against the non-diverse physician defendants, including Dr. Guess, who is therefore entitled to be dismissed from this action.

  WHEREFORE, PREMISES CONSIDERED, defendant Charles Guess, M.D. moves the Court to dismiss him, with prejudice, herein.

  SO ORDERED. DEFENDANT DANIEL MURO, M.D.'S MOTION TO DISMISS WITH PREJUDICE

  TO THE HONORABLE JUDGE OF SAID COURT:

  COMES NOW, Daniel Muro, M.D. (hereinafter "Dr. Muro"), one of the Defendants in the above-entitled and numbered cause, and files this, his Motion to Dismiss with Prejudice pursuant to TEX. REV. CIV. STAT. ANN. Article 4590i, ยง 13.01(d) and in support thereof would respectfully show unto the Court as follows:

  I.

  INTRODUCTION

  This lawsuit involves pharmaceutical product liability and medical malpractice claims. Plaintiffs filed their Original Petition on or about May 29, 2003. Under Texas law, Plaintiffs were required to provide an expert report as to each separate health care defendant in compliance with Article 4590i of the TEXAS REVISED CIVIL STATUTES ANNOTATED on or before November 25, 2003. To date, Plaintiffs failed to comply with the provisions set forth in Article 4590i and failed to provide an expert report with respect to the care and treatment provided to Reynaldo Torres by Dr. Muro. Since Plaintiffs failed to file an appropriate written report as to Dr. Muro, Plaintiffs' cause of action against Dr. Muro should be dismissed with prejudice.

 

SO ORDERED. DEFENDANT J.A. MOBLEY, M.D. SECOND AMENDED MOTION TO DISMISS WITH PREJUDICE
TO THE HONORABLE JUDGE OF SAID COURT:
  COMES NOW J.A. Mobley, M.D. (hereinafter "Dr. Mobley"), one of the Defendants in the above-entitled and numbered cause, and files this, his Second Amended Motion to Dismiss with Prejudice and in support thereof would respectfully show unto the Court as follows:

  I.

  INTRODUCTION

  This lawsuit involves pharmaceutical product liability and medical malpractice claims. Plaintiffs filed their Original Petition on or about May 27, 2003. Under Texas law, Plaintiffs were required to provide an expert report as to each separate defendant in compliance with Article 4590i of the TEXAS REVISED CIVIL STATUTES ANNOTATED on or before November 23, 2003. To date, Plaintiffs have failed to comply with the provisions set forth in Article 4590i and have failed to provide an expert report with respect to the care and treatment provided to Guadalupe Holdiness by Dr. Mobley. Since Plaintiffs failed to file an appropriate written report as to Dr. Mobley, Plaintiffs' cause of action against Dr. Mobley should be dismissed with prejudice.

 

SO ORDERED. DEFENDANT ALVARO M. GIRALDO, M.D. SECOND AMENDED MOTION TO DISMISS WITH PREJUDICE
TO THE HONORABLE JUDGE OF SAID COURT:
  COMES NOW Alvaro M. Giraldo, M.D. (hereinafter "Dr. Giraldo"), one of the Defendants in the above-entitled and numbered cause, and files this, his Second Amended Motion to Dismiss with Prejudice and in support thereof would respectfully show unto the Court as follows:

  I.

  INTRODUCTION

  This lawsuit involves pharmaceutical product liability and medical malpractice claims. Plaintiffs filed their Original Petition on or about July 21, 2003. Under Texas law, Plaintiffs were required to provide an expert report as to each separate defendant in compliance with Article 4590i of the TEXAS REVISED CIVIL STATUTES ANNOTATED on or before January 19, 2004. To date, Plaintiffs have failed to comply with the provisions set forth in Article 4590i and have failed to provide an expert report with respect to the care and treatment provided to Ernestina Olivarez by Dr. Giraldo. Since Plaintiffs failed to file an appropriate written report as to Dr. Giraldo, Plaintiffs' cause of action against Dr. Giraldo should be dismissed with prejudice.

  SO ORDERED. MOTION TO DISMISS OF DEFENDANT IRENE CHIUCCHINI, M.D.

  TO THE HONORABLE DISTRICT COURT JUDGE:

  Defendant IRENE CHIUCCHINI, M.D. ("DR. CHIUCCHINI") files this Motion to Dismiss pursuant to the Medical Liability and Insurance Improvement Act of Texas ("Article 4590i") and in support thereof shows the Court as follows:

  I.

  INTRODUCTION AND BASIS OF MOTION

  1. Plaintiff JOE DE LA PARRA" filed this case in state court on May 30, 2003 against Parke-Davis, Warner-Lambert Company, Phizer, Inc. Sankyo Parke-Davis (Pharmaceutical Defendants), and various Texas physicians, including DR. CHIUCCHINI. The case is based on the marketing and prescription of Rezulin to fifteen Texas residents.

  2. Plaintiff DE LA PARRA alleges that DR.CHIUCCHINI negligently prescribed Rezulin and proximately caused serious injury to DE LA PARRA. DE LA PARRA alleges that he has suffered compensable damages as a result of the alleged negligence.

  3. The Pharmaceutical Defendants filed a Notice of Removal on August 14, 2003. The basis for the Notice of Removal was fraudulent joiner of the Texas physician defendants. On October 20, 2003, this case was transferred to the Multi-District Litigation (MDL) in the Southern District Court of New York.

  SO ORDERED. MOTION TO DISMISS OF DEFENDANT W.J. STRADER, M.D.

 TO THE HONORABLE DISTRICT COURT JUDGE:

  Defendant W.J. STRADER, M.D. ("DR. STRADER") files this Motion to Dismiss pursuant to the Medical Liability and Insurance Improvement Act of Texas ("Article 4590i") and in support thereof shows the Court as follows:

  I.

  INTRODUCTION AND BASIS OF MOTION

  1. Plaintiff LILLIAN S. LOPEZ ("LOPEZ") filed this case in state court on May 30, 2003 against Parke-Davis, Warner-Lambert Company, Phizer, Inc. Sankyo Parke-Davis (Pharmaceutical Defendants), and various Texas physicians, including DR. STRADER. The case is based on the marketing and prescription of Rezulin to fifteen Texas residents.

  2. Plaintiff LOPEZ alleges that DR.STRADER negligently prescribed Rezulin and proximately caused serious injury to LOPEZ. LOPEZ alleges that she has suffered compensable damages as a result of the alleged negligence.

  3. The Pharmaceutical Defendants filed a Notice of Removal on August 14, 2003. The basis for the Notice of Removal was fraudulent joiner of the Texas physician defendants. On October 20, 2003, this case was transferred to the Multi-District Litigation (MDL) in the Southern District Court of New York.

  SO ORDERED.

20050822

© 1992-2005 VersusLaw Inc.



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