United States District Court, S.D. New York
POGUST BRASLOW & MILLROOD Harris L. Pogust, Esq., Conshohocken, PA, Attorneys for Plaintiff.
COVINGTON & BURLING LLP Michael X. Imbroscio, Esq., Phyllis A. Jones, Esq., Brett C. Reynolds, Esq., Washington, DC, Attorneys for Defendant.
ROBERT W. SWEET, District Judge.
Plaintiff Jesse McDowell ("McDowell" or "Plaintiff") has moved pursuant to Local Rule 6.3 and Federal Rule of Civil Procedure 59(e) for reconsideration of the grant of summary judgment on November 7, 2014 (Dkt No. 34) dismissing McDowell's complaint (the "November 7 Order"), alleging product liability arising out of his use of Cymbalta, a drug produced by the Defendant Eli Lilly and Company ("Eli Lilly" or the "Defendant"). McDowell has also moved to supplement the record and to file certain material under seal. Based on the conclusions set forth below, the motion for reconsideration is denied. The motion of McDowell to supplement the record on this motion and to file materials under seal is granted.
McDowell filed suit against Eli Lilly on June 4, 2013 alleging product liability arising out of the use of Eli Lilly drug Cymbalta. Following a scheduling conference, an order was entered an order providing for two discovery phases: "Core Case-Specific Discovery, " which encompassed the IND/NOA files for Cymbalta (over 1.8 million pages); McDowell's medical records; and the depositions of McDowell and his medical providers, and, if necessary after summary judgment briefing, "Non-Core Discovery." (See Dkt. No. 8.) The order provided that summary judgment motions would be filed on "Core Case-Specific Discovery issues" within thirty days of the specified depositions. (Id.) Eli Lilly filed its motion for summary judgment on the grounds of adequacy and proximate cause on July 7, 2014. Briefing was completed on this motion with Eli Lilly's Reply on August 22, 2014. Oral argument was held on September 17, 2014 and the November 7 Order was entered granting Eli Lilly's motion for summary judgment, dismissing the complaint.
On September 22, 2014, McDowell's counsel here submitted expert reports by Dr. Joseph Glenmullen and Dr. Louis Morris on behalf of its clients in two other Cymbalta cases, Herrera v. Eli Lilly & Co., Inc. and Hexum v. Eli Lilly & Co., Inc., which are currently pending in the Central District of California.
Prior to this Court's ruling, McDowell was also one of a group of plaintiffs who sought before the Judicial Panel on Multidistrict Litigation ("JPML") to centralize related Cymbalta actions for coordinated pre-trial proceedings. The JPML denied the motion to centralize on December 10, 2014.
McDowell seeks reconsideration of the grant of summary judgment and to supplement the record with the two expert reports of Dr. Glenmullen and Dr. Morris, the Cymbalta European Summary of Product Characteristics, and the JPML petition. McDowell also seeks to file under seal an internal Eli Lilly memorandum ("Internal Memorandum") produced in the Hexum litigation after Plaintiff's motion for reconsideration was filed.
The motions for reconsideration and to supplement the record were marked fully submitted on December 17, 2014. Plaintiff's motion to file the Internal Memorandum under seal was marked fully submitted on January 6, 2015.
The Applicable Standard
Under Federal Rule of Civil Procedure 59(e) and Local Civil Rule 6.3, a party seeking reconsideration must "demonstrate controlling law or factual matters put before the court on the underlying motion that the movant believes the court overlooked and that might reasonably be expected to alter the court's decision." MBIA Ins. Corp. v. Patriarch Partners VIII, LLC, 842 F.Supp.2d 682, 715 (S.D.N.Y. 2012). As the Second Circuit has stated, and this Court has reiterated on numerous occasions, motions for reconsideration "are not vehicles for taking a second bite at the apple... and [the court] [should] not consider facts not in the record to be facts that the court overlooked." Id. at 716 (quoting Rafter v. Liddle, 288 F.Appx. 768, 769 (2d Cir. 2008)) (alterations in original) (internal quotation marks omitted).
Reconsideration of a court's prior order is an "extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources." Sikhs for Justice v. Nath, 893 F.Supp.2d 598, 605 (S.D.N.Y. 2012) (citations omitted). Accordingly, the rule must be strictly and narrowly construed to avoid "duplicative rulings on previously considered issues, " id., and to "prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters." Jackson v. Odenat, 9 F.Supp. 3d 342, 368 (S.D.N.Y. 2014) (quoting Grand Crossing, L.P. v. U.S. Underwriters Ins. Co., No. ...