United States District Court, E.D. New York
September 21, 2005.
BARBARA SCHWAB et al., individually and on behalf of all others similarly situated, Plaintiffs,
PHILIP MORRIS USA, INC. et al., Defendants.
The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
MEMORANDUM AND ORDER
Defendants seek an immediate stay of all proceedings.
Plaintiffs oppose. The stay is denied.
On September 12 and 13 the parties argued a series of 23
motions, including those for class certification, summary
judgment and Daubert exclusions. Scores of briefs and tens of
thousands of pages of documents were submitted. The court
reserved decision on all motions.
Shortly before the motions were to be argued plaintiffs served
new materials for 11 of plaintiffs' experts. Defendants objected
on the grounds that this late service violated the magistrate
judge's scheduling orders and was unfair since defense papers and
arguments had been submitted without knowledge of these new
submissions and the new contentions they implied. The court
agreed that oral argument without new discovery of the potential
new witnesses and their reports would make the scheduled
arguments on the mass of papers already submitted chaotic and
unfair. Accordingly, on August 31, 2005 it ordered: "Proffered
materials regarding the following witnesses submitted after
briefing of defendants for the motions returnable on September 12, 2005 will not be considered on the
motions: Dr. John Hauser, Judith Wilkenfeld, Matthew Myers,
Laurence Tribe, Katherine Kinsella, Richard Redfern, Dr. Paul
Slovic, Dr. Joel Cohen, Dr. Marvin Goldberg, Dr. Stanley Presser,
Dr. John C. Beyer."
These new materials proffered by plaintiffs may bear on the
merits of at least some of the critical pending motions, which
cannot be decided on their merits without giving the parties a
chance to depose these potential witnesses and to present
countering information. If the case goes to trial this
information may be required for a just decision on the merits.
See Rule 1, Fed.R.Civ.P. (mandating that the Federal Rules
of Civil Procedure "be construed and administered to secure the
just, speedy, and inexpensive determination of every action.").
The magistrate judge has indicated that completion of discovery
will require at least three months. He is respectfully directed
to expedite completion of discovery, setting appropriate dates,
including a final date for submissions on any pending motions.
The court will consider any papers submitted on pending motions
in accordance with the magistrate judge's schedules and orders.
No further oral argument will be entertained. On decision of the
motions, the court intends to order a stay so that appropriate
interlocutory appeals can go forward.
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