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Pichardo v. C.R. Bard, Inc.

United States District Court, S.D. New York

January 26, 2015

GLENNY PICHARDO, Plaintiff,
v.
C.R. BARD, INC. & BARD PERIPHERAL VASCULAR, INC., Defendants

For Glenny Pichardo, Plaintiff: Jean M. Prabhu, LEAD ATTORNEY, Seth A. Harris, Burns & Harris, New York, NY.

For C.R. Bard, Inc., a New Jersey Corporation, Bard Peripheral Vascular, Inc, a subsidiary and/or division of defendant C.R. Bard, Inc) and Arizona corporation, Defendants: Daniel K. Winters, LEAD ATTORNEY, Janice Diane Kubow, Jessica Kristen Shook, Reed Smith LLP (NYC), New York, NY; Deirdre S. McCool, PRO HAC VICE, Nelson Mullins Riley & Scarborough LLP, Charleston, SC; Matthew B. Lerner, Taylor T. Daly, PRO HAC VICE, Nelson Mullins Riley & Scarborough LLP (Atlanta), Atlanta, GA; Richard B North, PRO HAC VICE, Nelson Mullins Riley & Scarborough, L.L.P. (GA), Atlanta, GA.

MEMORANDUM & ORDER

Sidney H. Stein, United States District Judge.

Defendants C.R. Bard, Inc. and Bard Peripheral Vascular, Inc. have moved for monetary sanctions against Jean Prabhu, Esq., the attorney who represents plaintiff Glenny Pichardo in this litigation. Pursuant to Rule 16(f) of the Federal Rules of Civil Procedure, the Court awards defendants the reasonable attorney's fees they incurred in connection with (1) their motion to strike plaintiff's expert witness designations and expert witness responses and to exclude plaintiff's identified experts from testifying or otherwise supplying evidence, and (2) this motion for sanctions.

I. Background

Pichardo filed this personal injury and products liability suit against defendants, who manufactured an allegedly defective inferior vena cava (" IVC") filter that had been surgically implanted in Pichardo. The following litigation history is relevant to this motion for sanctions:

o In September 2009, this case was commenced and assigned to this Court as related to an earlier filed action entitled Lindsay v. C.R. Bard, Inc., 09-Cv-5475.
o On February 1, 2011, the Court signed an order to which the parties had stipulated that extended the deadline for Pichardo to submit her expert reports to March 31, 2011. (Dkt. No. 31.) The Court had already extended this deadline once previously. (Dkt. No. 25.) Pichardo's attorney did not submit her client's reports on that date and did not request an extension from the Court.
o Five weeks after the deadline had passed, on May 9, 2011, Pichardo's attorney wrote to the Court requesting that she " be permitted additional time for our Expert Exchanges to July 29, 2011." (Dkt. No. 35.) The Court denied that request. ( See Dkt. Nos. 35-36.)
o By letter to defendants dated June 8, 2011--one month after she had requested additional time and more than two months after the deadline--Pichardo's attorney identified as her experts the same five experts that the plaintiff in Lindsay had previously identified and attached copies of the same reports he had already submitted in his case. (Dkt. No. 39, Exs. 1-A-1-E.)
o One month later, defendants filed a " motion to strike plaintiff's expert witness designations and expert witness responses and to exclude Plaintiff's identified experts from testifying or otherwise supplying evidence." (Dkt. No. 37.)
o Three weeks after that, Pichardo's attorney filed a motion for extension of time to complete discovery for the purpose of having her experts examine the IVC filter that had been extracted from Pichardo on June 1. (Dkt. No. 47.) The Court denied that motion because plaintiff " has proffered no reason for its delay in seeking the extension for approximately 2 months (from 6/3 until 7/25) following removal of the device." (Dkt. No. 61.)

Defendants subsequently filed a motion for summary judgment, which the Court granted. (Dkt. No. 88.) The Court concluded that Pichardo had not actually retained the experts on whose reports she had relied (Dec. 22, 2012 Tr. of Oral Arg. at 45-50), and held that " [w]ithout any expert evidence in the record that supports any causal connection between the filter and Pichardo's injury, Pichardo's claims cannot withstand this motion for summary judgment" ( id. at 49).

Pichardo appealed this Court's grant of summary judgment to the U.S. Court of Appeals for the Second Circuit. In April 2014, that court issued a summary order vacating this Court's order and remanding for further proceedings on the ground that this Court had improperly denied Pichardo's motion to extend discovery to permit an expert witness to examine her extracted IVC filter. Pichardo v. C.R. Bard, Inc., 563 F.App'x 58, 62 (2d Cir. 2014). It reasoned that this denial " effectively prevented Pichardo from presenting evidence the court considered necessary to oppose the motion for summary judgment, " and that the grant of summary judgment therefore functioned as a sanction on Pichardo due solely to her attorney's failure to follow the Court's scheduling order. Id. at 61. The panel found that Pichardo herself was not at fault and that the delays were caused by her attorney's " sloppiness and neglect." Id. at 62. It concluded that " it would be more appropriate for the court to sanction Pichardo's attorney rather than bar Pichardo from completing necessary expert examinations and, as a consequence, dismissing her case." Id.

Defendants now move this Court to award monetary sanctions against Pichardo's attorney. Specifically, they request reimbursement of the attorney's fees they incurred in connection with making or opposing the following motions:

o Defendants' motion to strike plaintiff's expert witness designations and expert witness responses and to exclude plaintiff's identified experts from testifying or otherwise supplying evidence (" motion to strike plaintiff's experts"). (Dkt. No. 37.)
o Pichardo's motion for extension of time to complete discovery. (Dkt. No. 47.)
o Defendants' motion for summary judgment. (Dkt. No. 51.)
o Defendants' motion in limine to strike the opinions of Robert McMeeking and Matthew ...

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