SIMS v. VC 999 PACKAGING SYSTEMS et al

BRIEF in Opposition

D.N.J.November 5, 2018

4852-8622-2458.6 COZEN O’CONNOR A Pennsylvania Professional Corporation Robert V. Dell’Osa (RD 0850) Liberty View 457 Haddonfield Road, Suite 300 P.O. Box 5459 Cherry Hill, NJ 08002 Phone: (856) 910-5066 Fax: (856) 910-5075 rdellosa@cozen.com OF COUNSEL: Michael P. Nolan (pro hac vice) HUSCH BLACKWELL LLP The Plaza in Clayton 190 Carondelet Plaza Suite 600 St. Louis, MO 63105 Phone: (314) 480-1500 Fax: (314) 480-1505 michael.nolan@huschblackwell.com IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY BRIAN C. SIMS, ) CIVIL ACTION ) Plaintiff, ) ) No. 1:17-cv-02636-JBS-JS v. ) ) EXPRESS SCRIPTS, INC.’S VC999 PACKAGING SYSTEMS et al., ) OPPOSITION TO PLAINTIFF’S ) MOTION TO BE PERMITTED Defendants. ) TO FILE A SECOND AMENDED ) COMPLAINT Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 1 of 25 PageID: 1350 4852-8622-2458.6 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii I. INTRODUCTION ........................................................................................... 1 II. BACKGROUND ............................................................................................. 5 III. APPLICABLE LAW ....................................................................................... 7 A. Rule 60 Permits Relief From Final Judgments Only in “Extraordinary Circumstances” ............................................................. 7 IV. ANALYSIS ...................................................................................................... 9 A. No Good Cause Exists to Relieve Plaintiff of the Court’s Final Order Dismissing His Claims Against ESI. .......................................... 9 B. Plaintiff’s Motion to Amend Must Be Denied as Futile. ....................12 C. Plaintiff’s Motion to Amend Must be Denied Because It is Made in Bad Faith. ..............................................................................15 D. If The Court Is Inclined to Grant Plaintiff’s Motion to Amend, ESI Should Be Afforded Additional Time to Conduct Discovery as to All of Plaintiff’s Claims, Including His New Theories of Liability. ...........................................................................19 V. CONCLUSION ..............................................................................................19 CERTIFICATE OF SERVICE ................................................................................21 Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 2 of 25 PageID: 1351 4852-8622-2458.6 ii TABLE OF AUTHORITIES Page Cases Ahmed v. Dragovich, 297 F.3d 201 (3d Cir. 2002) ..............................................................................8, 9 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................................................15 Calif. Pub. Employees’ Ret. Sys. v. Chubb Corp., 394 F.3d 126 (3d Cir. 2004) .................................................................................. 8 Laidlow v. Hariton Machinery, 170 N.J. 602 (NJ 2002)........................................................................................14 Pappas v. Twp. of Galloway, 565 F. Supp. 2d 581 (D.N.J. 2008)........................................................................ 9 Rastelli Bros., Inc. v. Netherlands Ins. Co., 68 F. Supp. 2d 451 (D.N.J. 1999) ............................................................... 7, 8, 12 Sawka v. Healtheast, Inc., 989 F.2d 138 (3d Cir. 1998) .................................................................................. 8 Schmidt v. Skolas, 770 F.3d 241 (3d Cir. 2014) .................................................................................. 3 White v. Taylor, No. CIV. 10-5485 JBS/AMD, 2014 WL 1428545 (D.N.J. Apr. 14, 2014) ........................................................... 8 Statutory Authorities N.J.S.A. § 34:15-8 ..................................................................................................2, 6 Rules and Regulations 29 C.F.R. § 1910.147 ................................................................................................. 3 Fed. R. Civ. P. 11 .................................................................................................6, 15 Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 3 of 25 PageID: 1352 4852-8622-2458.6 iii Fed. R. Civ. P. 12 ....................................................................................................... 1 Fed. R. Civ. P. 15 .............................................................................................. 1, 8, 9 Fed. R. Civ. P. 59 ....................................................................................................... 7 Fed. R. Civ. P. 60 ................................................................................ 1, 2, 7, 8, 9, 12 Other Authorities Charles Alan Wright, et al., 6 Federal Practice and Procedure § 1489 (2d ed. 1990) ....................................... 8 Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 4 of 25 PageID: 1353 4852-8622-2458.6 1 Defendant Express Scripts, Inc. (“ESI”), pursuant to Federal Rules of Civil Procedure 60 and 15, hereby files its Opposition to Plaintiff’s Motion to be Permitted to File a Second Amended Complaint (“Motion to Amend”) (Doc. No. 146), and states as follows: I. INTRODUCTION Plaintiff seeks the extraordinary remedy of being relieved of a final judgment against him to restart his case against ESI under a purportedly new set of factual allegations. But Rule 60 provides no basis for relief in this case. Plaintiff’s proposed second amended complaint (“PSAC”) falls short of the requisite pleading standards and vacating the final order would be futile. Plaintiff’s Motion to Amend must be denied. As Plaintiff recognizes, a judgment under Rule 12(b)(6) is a final order and relief from the judgment may be granted only in extraordinary circumstances. No such circumstances exist here. Plaintiff asserts that ESI’s “failure” to disclose the Investigation Report sooner “was the singular reason that the specific circumstances regarding the accident was not and could not have been known to the Plaintiff until the Court Order of July 12, 2018 was entered.” (Plaintiff’s Memorandum of Law, p. 3 (emphasis in original)). However, all but one of the new factual allegations in the PSAC do not even appear in the Investigation Report. Consequently, the Investigation Report could not have been the source of Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 5 of 25 PageID: 1354 4852-8622-2458.6 2 those fact allegations. Even the fact allegation that is mentioned in the Investigation Report – the alleged removal of a “machine guard located directly downstream of the forming station … (where plaintiff was working at the time of [the] subject incident)” – was known previously to Plaintiff, at least in general terms, since Plaintiff specifically averred in his Amended Complaint (at par. 18) that ESI was responsible for “the removal of safety guards.” (Doc. No. 27 at ¶ 18). As a result, Plaintiff knew, or should have known, all of the information alleged in Plaintiff’s PSAC before he filed his initial complaint in this case over a year and a half ago. Courts will not use Rule 60 to allow pursuit of a claim a party knew of but failed to raise or argue at the outset of the case. Moreover, even if grounds existed under Rule 60 to vacate the final judgment entered previously1, Plaintiff’s PSAC fails to state a claim upon which relief may be granted under the “intentional wrong” exception to the worker’s compensation bar. N.J.S.A. 34:15-8. As Plaintiff acknowledges, that exception is difficult to meet, requiring inter alia, that “the employer must know that his actions are substantially certain to result in injury or death to the employee.” (Plaintiff’s Memorandum, p. 8). The Court previously held that Plaintiff’s claims against ESI are barred by the New Jersey’s workers’ compensation statute, N.J.S.A. 34:15-8, under which he is already receiving workers’ compensation benefits. The Court 1 ESI denies such grounds exist. Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 6 of 25 PageID: 1355 4852-8622-2458.6 3 also denied Plaintiff’s prior motion to amend his complaint against ESI because Plaintiff could not plead any facts to overcome the high bar imposed by the New Jersey workers’ compensation statute. Nothing has changed. Plaintiff was injured because he ignored clear warning signs affixed to the machine he was working on which directed him: “Prior to servicing the machine, lock out the pneumatic and electrical service.”2, 3 Had he done as he was trained to do, the machine could not have become activated and the accident never would have occurred. As the Court correctly observed in its January 24, 2018 Opinion (Doc. No. 75) “the context of [Plaintiff’s] injury appears to be the very type of on- the-job injury the New Jersey legislature likely envisioned as being ‘a fact of life of industrial employment.” Id. at p. 10. 2 When evaluating the sufficiency of a complaint, a court may consider any materials either “integral to or explicitly relied upon in the complaint.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). The machine upon which Plaintiff was working, including its affixed warnings and directions, is integral to Plaintiff’s proposed second amended complaint. See ESI’s Requests for Admission and Plaintiff’s Responses thereto, attached hereto as Exhibits A & B, relative to Plaintiff’s admissions regarding the warnings. 3 This Court may take judicial notice of the fact that OSHA Safety Standards make “lockout/tagout” procedures commonplace in industrial settings. See 29 C.F.R. § 1910.147 (“The standard covers the servicing and maintenance of machines and equipment in which the unexpected energization or startup of the machines or equipment, or release of stored energy could cause injury to employees. This standard establishes minimum performance requirements for the control of such hazardous energy.”). Plaintiff admits that he was trained on lockout/tagout procedures. See Exs. A & B, ESI’s Request for Admissions and Plaintiff’s response thereto, Requests #1 & #2. Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 7 of 25 PageID: 1356 4852-8622-2458.6 4 The PSAC contains inflammatory, self-serving, and conclusory allegations that do not provide the factual basis upon which Plaintiff’s claims must be based to survive a motion to dismiss. Plaintiff alleges ESI removed a safety guard from the machine, deactivated an emergency stop button present for safety purposes, failed to provide its employees with keys to lockout/tagout the machines, and removed or altered safety warnings in computer software, along with conclusory verbiage regarding ESI’s alleged state of mind. Tellingly, Plaintiff still fails to allege facts, as he must, that show how the purported missing safety components bear any relation to his injuries. To be clear, he does not allege how any of the alleged missing safety components would have prevented or affected his injuries. He fails to allege who removed the safety guard or deactivated the button and when. He does not even allege that the missing machine guard was implicated in the maintenance work he was performing at the time of the accident or that he attempted to push the emergency stop button and when. All of this information (if it were true) would have been readily available to Plaintiff since the day he was injured. Furthermore, he utterly fails to allege any facts that would show that ESI would have known with “substantial certainty” that he would be injured, when all the posted warnings and Plaintiff’s training required him to lock out/tag out the machine, thereby rendering it safe. Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 8 of 25 PageID: 1357 4852-8622-2458.6 5 Quite simply, Plaintiff has no new facts to resurrect his claim against ESI. The case has been ongoing for more than eighteen months, and despite numerous opportunities to set forth all his theories of purported liability against ESI, Plaintiff never set forth any indication that he believed the safety components he now alleges were missing caused or contributed to his injury. In addition, Plaintiff’s discovery responses do not support, and in fact directly refute, his new factual allegations. Plaintiff’s claim against ESI is futile and he is now proceeding in bad faith. For these reasons, Plaintiff’s Motion to Amend should be denied with prejudice. In the event the Court is inclined to grant Plaintiff’s Motion to Amend, then ESI should be given an opportunity to engage in discovery regarding Plaintiff’s new factual allegations. The Court dismissed Plaintiff’s claims against ESI in January 2018, and Plaintiff’s new theories differ from those he asserted previously. Therefore, ESI should be granted leave for additional discovery to obtain the information necessary to defend against Plaintiff’s newly asserted claims. II. BACKGROUND Plaintiff’s claims are based upon an on-the-job injury that occurred while he was performing maintenance work and attempting to repair a piece of machinery known as the “Wrap Seal 8” machine located at a pharmacy in Florence, New Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 9 of 25 PageID: 1358 4852-8622-2458.6 6 Jersey.4 Plaintiff’s proposed second amended complaint asserts two counts: one against the alleged designers, manufacturers, and installers of the machine; and a second against ESI, his alleged employer. Plaintiff attempts to fit his claim against ESI within the narrow “intentional wrong” exception to New Jersey’s workers’ compensation bar against tort claims brought by injured workers against their employers. See N.J.S.A. § 34:15-8. Plaintiff’s Motion to Amend comes after this Court’s Order and Opinion granting ESI’s motion to dismiss without prejudice (Doc. Nos. 75 & 76) and prior Order denying Plaintiff leave to amend his complaint previously (Doc. No. 89). After dismissing Plaintiff’s complaint the first time, this Court offered Plaintiff “one last opportunity” to state a sufficient factual basis for his claims, with the condition that any amendment must be prepared “within the constraints of Fed. R. Civ. P. 11(b).” (Doc. No. 75). Plaintiff failed to do so, and the Court denied Plaintiff’s motion for leave to amend. (Doc. No. 89). After the Court’s Orders dismissing Plaintiff’s Complaint against ESI, ESI sought a protective order to prevent the parties from discovering privileged and protected information in discovery. The parties briefed and argued the motion for protective order, and the Court ordered ESI to produce a small subset of documents 4 Plaintiff has been receiving workers’ compensation benefits since the time of his injury. Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 10 of 25 PageID: 1359 4852-8622-2458.6 7 previously identified on its privilege log, while holding that the remaining documents remained privileged and protected on July 12, 2018. (Doc. No. 110). ESI produced the documents the Court ordered, including a copy of an investigation report ESI prepared after Plaintiff’s accident (the “Investigation Report”). ESI produced the Investigation Report on July 24, 2018, but Plaintiff did not file his Motion to Amend until October 18, 2018. III. APPLICABLE LAW A. Rule 60 Permits Relief From Final Judgments Only in “Extraordinary Circumstances” Rule 60 permits a court to relieve a party from a final judgment in certain, narrow circumstances. Fed. R. Civ. P. 60. “This type of relief is only sparingly granted, however, as vacating and granting relief from final judgments impairs the judicial system’s compelling need for finality in litigation.” Rastelli Bros., Inc. v. Netherlands Ins. Co., 68 F. Supp. 2d 451, 453 (D.N.J. 1999) (Simandle, J.). Rule 60 provides enumerated grounds upon which a Court may grant relief, including “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b),” “fraud (whether heretofore denominated as intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party,” and a “catchall” for “any other reason justifying relief from the operation of judgment.” Fed. R. Civ. P. 60(b)(2), (3), (6). The relief permitted by Rule 60 is “only to be invoked in the most Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 11 of 25 PageID: 1360 4852-8622-2458.6 8 ‘extraordinary circumstances, where, without such relief, an extreme and unexpected hardship would occur.’” Rastelli Bros, Inc., 68 F. Supp. 2d at 453 (quoting Sawka v. Healtheast, Inc., 989 F.2d 138, 140 (3d Cir. 1998)). Post- judgment amendments will be denied “when the moving party had an opportunity to assert the amendment . . . but waited until after judgment before requesting leave” to plead the theory. Charles Alan Wright, et al., 6 Federal Practice and Procedure § 1489 at 696 (2d ed. 1990). “When a party requests post-judgment amendment of a pleading, a court will normally conjoin the Rule 60(b) and Rule 15(a) motions to decide them simultaneously, as it ‘would be a needless formality for the court to grant the motion to reopen the judgment only to deny the motion for leave to amend.’” Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002) (quoting 6 Wright, et al., Federal Practice and Procedure § 1489, at 695) (denying motion for relief because proposed amended complaint is futile). The Third Circuit recognizes that a district court may deny leave to amend on grounds “such as undue delay, bad faith, dilatory motive, prejudice and futility.” White v. Taylor, No. CIV. 10-5485 JBS/AMD, 2014 WL 1428545, at *2 (D.N.J. Apr. 14, 2014) (citing Calif. Pub. Employees’ Ret. Sys. v. Chubb Corp., 394 F.3d 126, 165 (3d Cir. 2004)). “Futility” means that the complaint, as amended, would fail to state a claim upon which relief could be granted. Pappas v. Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 12 of 25 PageID: 1361 4852-8622-2458.6 9 Twp. of Galloway, 565 F. Supp. 2d 581, 591 (D.N.J. 2008). In assessing futility, the Court must strip away conclusory statements and look for well-pled factual allegations, assume their veracity, and then determine whether they plausibly give rise to an entitlement of relief. See id. If the proposed amended complaint does not cure the defects in the original pleading, the Court has “a valid reason both for denying a motion to amend under Rule 15(a) and for refusing to open the judgment under Rule 60(b).” Ahmed, 297 F.3d at 209 (citation omitted). IV. ANALYSIS A. No Good Cause Exists to Relieve Plaintiff of the Court’s Final Order Dismissing His Claims Against ESI. Plaintiff’s PSAC contains self-serving and conclusory allegations disguised as “newly discovered evidence” allegedly gained only recently through ESI’s Investigation Report. However, there is no merit to Plaintiff’s claims. Because Plaintiff knew, or should have known, of this information well before he filed his original Complaint, Plaintiff could have (and indeed, should have) included such allegations in the prior iterations of his Complaint. He cannot assert such theories now under the guise of alleged “new information.” Plaintiff claims the Investigation Report was the sole source of information for the new allegations in the PSAC, and upon its production, he learned for the first time that a machine guard “located directly downstream” from where Plaintiff was working at the time of the accidence “had been removed” and that “white Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 13 of 25 PageID: 1362 4852-8622-2458.6 10 tape” was placed over the machine guard safety switch. These arguments, however, belie logic. First, Plaintiff previously alleged that one of ESI’s wrongdoings was “the removal of safety guards.” (Doc. No. 27, at ¶ 18). This is not a new allegation. Second, Plaintiff was the only person who was present immediately before and at the time of his accident, and he alone has firsthand knowledge of the circumstances leading up to his injury. Therefore, Plaintiff knew well before he filed his initial Complaint – more than eighteen months ago – whether a safety guard and/or white tape was or was not present on the machine at the time of the incident. Even more importantly, he would have known whether the absence of such safety features were a factor in his workplace accident. Plaintiff’s failure to plead these facts until now cannot justify the extraordinary relief he seeks. In addition, Plaintiff now alleges, for the first time, that ESI “did not provide ‘lock out/tag out’ keys” to its employees and that ESI “remove[d] and/or alter[ed] safety warnings/cautions from the computer software utilized to operate the subject machine.” See PSAC ¶¶ 24, 29. Plaintiff has never raised these allegations before and neither topic appears in ESI’s Investigation Report. Plaintiff offers no explanation for his failure to plead these theories of liability in any prior iteration of his Complaint, or why he is otherwise raising these issues for the first time eighteen months into the case and over three years after the incident. Thus, Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 14 of 25 PageID: 1363 4852-8622-2458.6 11 regardless of the effect of ESI’s Investigation Report on the missing safety guard and white tape, no basis exists to permit Plaintiff to amend his complaint to include these allegations at this late stage. Moreover, ESI properly asserted its belief that the Investigation Report was privileged and protected from disclosure. While the Court ultimately ordered the production of the Investigation Report, the production in July 2018 is not a basis to allege ESI attempted to conceal anything from the parties. To the contrary, ESI (i) timely served its Privilege Log on November 7, 2017, (ii) filed a formal Motion for Protective Order (Doc. No. 65) on January 16, 2018, and (iii) produced the Report to the parties promptly after the Court entered its July 12, 2018 Order. Finally, Plaintiff’s discovery responses detailing the alleged causes of his injuries do not identify a missing machine safety guard, a missing magnetic safety guard, a “deactivated” emergency stop button, the lack of lockout/tagout keys or altered computer software.5 Certainly, if Plaintiff believed that the features he claims were missing somehow caused the injuries he complains of here, he would have at least mentioned those facts earlier in the case. Again, Plaintiff was the sole person present immediately before and at the time of the injury, so he alone would 5 See, e.g., Exs. A & B at #5-8 (alleging only that an emergency stop button was “inoperable”); see also Plaintiff’s responses to ESI’s interrogatories, attached hereto as Exhibit C, at Interrogatories #20, 21; Plaintiff’s responses to co- defendant VC999’s interrogatories, attached hereto as Exhibit D, at Interrogatories #1, 17, 18. Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 15 of 25 PageID: 1364 4852-8622-2458.6 12 have the best knowledge of what features were or were not present, what keys he was or was not provided, and the effect of all of these alleged items on his ability to safely perform the job at hand. The “desire to pursue other legal theories that were always available and squarely implicated in the defendant’s position herein does not present any extraordinary circumstances, and in fact would turn the presumption of finality of judgments on its head.” Rastelli Bros., Inc., 68 F. Supp. 2d at 454. There is no merit to the claim that the Investigation Report suddenly revealed to Plaintiff new grounds for his claims. The request to vacate the final order in favor of ESI must be denied under Rule 60(b). B. Plaintiff’s Motion to Amend Must Be Denied as Futile. Even if circumstances existed to vacate the prior final order against ESI under Rule 60(b), such vacation would be futile because Plaintiff’s PSAC fails to state a claim for which relief can be granted. Therefore, there is no reason to vacate the prior judgment simply to deny the Motion to Amend to file the PSAC. In the Opinion granting ESI’s Motion to Dismiss, this Court recognized that Plaintiff’s prior complaints “fail[ed] to indicate what specific safety features were missing [from the Wrap Seal 8], who allegedly altered or removed them, when and why the safety features were allegedly removed or altered, and how these safety Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 16 of 25 PageID: 1365 4852-8622-2458.6 13 features might have prevented Plaintiff’s injury.” See Doc. No. 75 (emphasis added). Plaintiff’s PSAC still fails to allege several of these essential facts. The proposed second amended complaint alleges generally that ESI “deliberately and intentionally” deactivated “one or more of the emergency stop buttons, machine guards and/or machine guard magnetic safety switches” on the Wrap Seal 8. See PSAC, ¶ 20. Like Plaintiff’s prior complaints, these conclusory allegations should be disregarded, as Plaintiff fails to allege who deactivated the alleged safety features and when. Plaintiff also fails to allege what emergency stop button(s) were deactivated and where they are on the machine. Most importantly, Plaintiff alleges summarily that ESI removed guards and bypassed safety devices “that would have prevented the injuries suffered by the Plaintiff, Brian Sims.” He does not identify any facts showing how and why the alleged removal of these devices caused Plaintiff’s injuries. He does not even allege that the safety features alleged to have been missing (namely the safety guard that was “downstream” from where Plaintiff was working at the time of the incident) played any role in the maintenance he was performing. Even accepting Plaintiff’s allegations as true, there is absolutely no causal link between the alleged missing components on the Wrap Seal 8 and Plaintiff’s injury. The Court has instructed Plaintiff to plead such facts with specificity to show a causal connection between his allegations and his injuries, yet Plaintiff has once again failed to do so. Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 17 of 25 PageID: 1366 4852-8622-2458.6 14 As the Court noted in its January 24th Opinion, Plaintiff must plead facts, not conclusions, to support the “conduct” and “context” elements of his claim. (Doc. No. 75). The “conduct” prong is satisfied if the employer knew his actions were “substantially certain” to result in the injury or death of employees. Id. And an employer’s alleged removal of a safety device, standing alone, does not establish Plaintiff’s “intentional wrong” claim under New Jersey law. See id. Nor does Plaintiff’s proposed second amended complaint provide sufficient factual allegations that give any “context” to the incident that would show that this accident was anything “more than a fact of life of industrial employment” or that it was “plainly beyond anything the Legislature intended the Workers’ Compensation Act to immunize.” See Laidlow v. Hariton Machinery, 170 N.J. 602, 617 (NJ 2002). Plaintiff’s failure to follow the explicit warnings and trainings instructing him to lockout and tagout the machine prior to performing maintenance caused his injuries. Additionally, Plaintiff’s self-serving allegations that ESI removed certain safety devices so the machine would remain in “continuous manufacturing operations” and produce materials “without interruption” (PSAC ¶¶ 22, 23) are contradicted by Plaintiff’s own allegations. The machine could not have been in “constant operation” because it was broken at the time Plaintiff was performing maintenance. That is the very reason Plaintiff was called to fix the machine. Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 18 of 25 PageID: 1367 4852-8622-2458.6 15 Plaintiff also alleges that his co-worker “activate[d] and/or energize[d]” the machine, causing his injuries, meaning the machine had been off. PSAC, ¶ 17. Without these basic factual allegations, Plaintiff cannot establish that his claim against ESI “raise[s] a right to relief above a speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff’s claims also do not rise to the level of an “intentional wrong” required to overcome the New Jersey workers’ compensation bar. As such, Plaintiff’s Motion to Amend should be denied with prejudice. C. Plaintiff’s Motion to Amend Must be Denied Because It is Made in Bad Faith. Fed. R. Civ. P. 11(b)(3) requires that the factual contentions in a pleading have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. The allegations contained in Plaintiff’s PSAC have no evidentiary support and nowhere in the proposed pleading does Plaintiff specifically identify any allegations that he contends will likely have evidentiary support after further investigation or discovery, particularly with respect to Plaintiff’s new allegations relating to missing keys, computer software, and affirmatively deactivated stop buttons. Plaintiff has already had a reasonable opportunity to conduct discovery. In the past year, Plaintiff has received thousands of documents from ESI and other Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 19 of 25 PageID: 1368 4852-8622-2458.6 16 defendants related to the incident and the machine at issue. A video of the incident has been produced. Plaintiff and his expert have inspected the machine on three separate occasions at the pharmacy in Florence, New Jersey. Plaintiff now also has a copy of ESI’s Investigation Report containing the findings made after Plaintiff’s accident. If specific facts were available to support an intentional tort claim against ESI, Plaintiff would have them by now and they would be reflected not only in Plaintiff’s PSAC, but also in Plaintiff’s discovery responses, but they are not. Plaintiff cannot continue to set forth new, baseless theories in an effort to overturn a final judgment and revive his claims against ESI. Importantly, Plaintiff has been asked to identify the factual bases for his claims against defendants and ESI. But Plaintiff’s discovery responses not only fail to support his new theory of the case, they refute it. For example, Plaintiff alleges in his proposed second amended complaint that ESI “order[ed]” employees to “not shut down the subject machine so that continuous manufacturing operations could occur without interruption” and gave employees a “policy, orders, and/or instructions” to that effect. See PSAC, ¶¶ 22, 23. Logically, for such statements to be relevant to this case, Plaintiff had to know them before his incident. Yet, in response to ESI’s interrogatory requesting that he describe any statements or admissions by any defendant in the lawsuit that relate to the subject matter of the Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 20 of 25 PageID: 1369 4852-8622-2458.6 17 lawsuit, Plaintiff has never identified any such statements by anyone at ESI. See Ex. C at Interrogatory #12. And Plaintiff’s own allegations refute the notion that the machine was not turned off. See PSAC, ¶ 17 (alleging a co-worker activated and energized the machine that was previously turned off). In addition, Plaintiff pleads ESI “deliberately and intentionally deactivate[d] or remove[d] one or more of the emergency stop buttons, machine guards and/or machine guard magnetic safety switches…,” ESI “did not provide lock out/tag out keys” to employees, and ESI removed or altered safety warnings on computer software See PSAC, ¶¶ 20, 24, 29. However, in discovery, ESI specifically asked Plaintiff to identify all “safety features” he contends ESI altered, removed, or permitted the non-existence of and to describe “with particularity how the existence of each safety feature would have prevented the incident or Injuries alleged” in this case. Ex. C at Interrogatories #20 and 21. In response, Plaintiff did not claim a safety guard was missing, he did not have a lockout/tagout key, or that computer software was altered; he merely stated that an emergency stop button was “inoperable” (not “deactivated”). Id.; see also Plaintiff’s responses to ESI’s requests for admission 5-8. Ex. B. Likewise, in response to co-defendant VC999’s request for Plaintiff to “[d]escribe in detail your version of the accident or occurrence setting forth the date, location, time and weather,” Plaintiff stated: On August 24, 2015, the Plaintiff was replacing a gasket on a machine known as “Wrap Seal 8” located at Defendant Express Scripts Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 21 of 25 PageID: 1370 4852-8622-2458.6 18 Florence, NJ facility when a co-worker activated the machine, causing the Plaintiff’s left arm to be trapped. The “Emergency Stop” button located where the Plaintiff was working was inoperable. Plaintiff’s co-workers eventually partially disassembled the machine in order to release Plaintiff’s left arm. Ex. D at Interrogatory #1. Notably, Plaintiff never mentions any intentional tortious behavior. He never mentions the possibility that a safety guard was missing, much less that the guard would have somehow prevented his injury. He does not mention anything about the presence of white tape, the absence of lockout/tagout keys, or alterations to computer software. If Plaintiff really believed these circumstances led to his injuries, he would have known about them well before ESI produced its Investigation Report, and he had an obligation to plead them in his initial complaint and identify them in discovery. Plaintiff should not be permitted to keep ESI in this case by asserting false and unsupported claims, which are refuted by his own discovery responses. The New Jersey Workers’ Compensation Act provides an exclusive remedy for exactly these kinds of incidents and Plaintiff is currently receiving benefits under the Act. Plaintiff’s attempt to overcome the exclusive remedy provisions by misrepresenting the cause of his injuries and falsely imputing ill intent on ESI should not be allowed to continue. Plaintiff’s Motion to Amend is in bad faith and should be denied with prejudice. Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 22 of 25 PageID: 1371 4852-8622-2458.6 19 D. If The Court Is Inclined to Grant Plaintiff’s Motion to Amend, ESI Should Be Afforded Additional Time to Conduct Discovery as to All of Plaintiff’s Claims, Including His New Theories of Liability. The Court granted ESI’s Motion to Dismiss Plaintiff’s claims, holding that the New Jersey workers’ compensation statute bars his alleged claims against ESI, on January 24, 2018. The Court subsequently denied Plaintiff’s motion for leave to amend on February 22, 2018. Since that time, ESI has not had any reason to seek discovery from Plaintiff, nor should it have as Plaintiff’s claims against ESI were dismissed. Plaintiff now sets forth new factual allegations, and ESI has not had any opportunity to pursue discovery of the allegations that Plaintiff is inexplicably bringing almost two years into the case for the first time. If the Court is inclined to grant Plaintiff’s Motion to Amend, ESI should be granted additional time in which to conduct discovery on all of Plaintiff’s claims. V. CONCLUSION WHEREFORE, Defendant Express Scripts, Inc. respectfully requests that this Court enter an Order denying Plaintiff’s Motion to be Permitted to File a Second Amended Complaint, and granting it such other and additional relief as this Court deems proper. Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 23 of 25 PageID: 1372 4852-8622-2458.6 20 Dated: November 5, 2018. Respectfully submitted, COZEN O’CONNOR /s/ Robert V. Dell’Osa___________ Robert V. Dell’Osa Liberty View 457 Haddonfield Road, Suite 300 P.O. Box 5459 Cherry Hill, NJ 08002 Phone: (856) 910-5066 rdellosa@cozen.com Attorney for Defendant Express Scripts Inc. OF COUNSEL: Michael P. Nolan (pro hac vice) HUSCH BLACKWELL LLP The Plaza in Clayton 190 Carondelet Plaza Suite 600 St. Louis, MO 63105 Phone: (314) 480-1500 Fax: (314) 480-1505 michael.nolan@huschblackwell.com Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 24 of 25 PageID: 1373 4852-8622-2458.6 21 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing instrument was filed electronically this 5th day of November, 2018. Notice of this filing will be sent by e-mail to all counsel of record by operation of the Court’s electronic filing system. Gary F. Piserchia FLYNN & ASSOCIATES, P.C. 2091 Springdale Road Suite 2 Cherry Hill, NJ 08003 Stephen A. Rudolph RUDOLPH & KAYAL Atlantic Corporate Center 2317 Highway 34, Suite 2-C Manasquan, NJ 08736 Gerard H. Hanson HILL WALLACK LLP 21 Roszel Road Princeton, NJ 08540 Scott Haworth HAWORTH ROSSMAN & GERSTMAN, LLC 45 Broadway, 21st Floor New York, NY 10006 Jeffrey A. Seagal SALMON RICCHEZZA SINGER & TURCHI, LLP 123 Egg Harbor Road, Suite 406 Sewell, NJ 08080 __/s/ Robert V. Dell’Osa________________ Robert V. Dell’Osa Case 1:17-cv-02636-JBS-JS Document 152 Filed 11/05/18 Page 25 of 25 PageID: 1374