POLT et al v. SANDOZ, INC.

RESPONSE in Opposition re MOTION to Strike 113 Response in Opposition to Motion,,, Defendant's Exhibits

E.D. Pa.March 15, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CAROLINE POLT AND MONICA POLT, Individually and as Co- Executors of the Estate of JOANNE POLT, deceased, Plaintiffs, vs. SANDOZ INC., Defendant. Civil Action No. 16-2362 Hon. Eduardo Robreno ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE DEFENDANTS’ EXHIBITS AND NOW, this ____ day of _______, 2019, upon consideration of Plaintiffs’ Opposed Motion to Strike Defendant’s Exhibits, and Defendant Sandoz Inc.’s Response in Opposition thereto, it is hereby ORDERED that said Motion is DENIED. AND IT IS SO ORDERED. EDUARDO C. ROBRENO, J. Case 2:16-cv-02362-ER Document 116 Filed 03/15/19 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CAROLINE POLT AND MONICA POLT, Individually and as Co-Executors of the Estate of JOANNE POLT, deceased, Plaintiffs, vs. SANDOZ INC., Defendant. Civil Action No. 16-2362 Hon. Eduardo Robreno DEFENDANT SANDOZ INC.’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE DEFENDANT’S EXHIBITS Defendant Sandoz Inc. (“Sandoz”) hereby responds to and opposes Plaintiffs’ Opposed Motion to Strike Defendant’s Exhibits to its Opposition to Plaintiffs’ Motion for Continuance (the “Motion to Strike,” Dkt. 114), showing this Court briefly as follows: I. INTRODUCTION Plaintiffs filed a Motion for Continuance (Dkt. 110) on March 7, 2019 containing many misrepresentations about what Sandoz had and had not done during discovery in this case. In support thereof, Plaintiffs attached a letter from Sandoz’ counsel to Plaintiffs’ counsel regarding a meet and confer on discovery and document production disputes. The next day, Plaintiffs filed a Motion to Expedite Hearing (Dkt. 111), which was granted by the Court on March 11, 2019, thereby shortening the time for Sandoz’ response to the Motion for Continuance to just six days. (Dkt. 112). Sandoz timely filed its Opposition, and therein outlined the history of discovery in this case and what Plaintiffs had misrepresented in their Motion for Continuance, referring to correspondence and other documents attached as exhibits to the Declaration of Sara K. Thompson. (Dkt. 113-1). It is these exhibits that Plaintiffs now move to strike, using a belabored interpretation of this Court’s Outline of Pretrial and Trial Procedures (the “Procedures”) § I(B). Case 2:16-cv-02362-ER Document 116 Filed 03/15/19 Page 2 of 6 - 2 - II. ARGUMENT Plaintiffs’ Motion to Strike is a tactical attempt to conceal from this Court the record evidence of four important truths relevant to the Motion for Continuance: (1) The documents Plaintiffs complain they just recently received were produced previously and referenced in filings and expert reports in two other nearly identical cases involving Plaintiffs’ lead counsel; (2) Sandoz acted diligently to schedule corporate representative depositions despite encountering resistance and delays from Plaintiffs to Sandoz’ request to narrow the scope of the topics to fit the claims in this case, and Plaintiffs failed to accept or reject the dates Sandoz offered on February 22, 2019 until they unilaterally cancelled the depositions on March 5, 2019; (3) Plaintiffs have delayed expert discovery, revealed new expert opinions belatedly, and gave Sandoz ample cause for concern that a long and unlimited extension of discovery would lead to further expert discovery expansion and “do-overs”; and, (4) Plaintiffs unilaterally cancelled all depositions and now seek a broad and lengthy extension of discovery while rejecting Sandoz’ proposal for a narrower and more reasonable extension just to complete already-requested discovery while not reopening expert opinions or completed depositions. Plaintiffs filed the Motion to Strike because Sandoz laid out the full history on these issues for the Court using these exhibits, and they want to keep critical facts from the Court in the hope of obtaining the full second bite at the discovery apple that the Motion for Continuance requests. This Court’s Procedures § I(B) include the following sentence upon which Plaintiffs base the Motion to Strike: “Counsel should not send Judge Robreno copies of letters sent to each other unless specifically invited to do so.” Plaintiffs interpret this to prohibit attaching correspondence between counsel as exhibits to filings, and argue Sandoz’ attachments to its Opposition violate their reading of this sentence. However, Plaintiffs ignore the section’s title, “Correspondence with the Court,” as well as the preceding sentences to the one on which they focus: Case 2:16-cv-02362-ER Document 116 Filed 03/15/19 Page 3 of 6 - 3 - Judge Robreno permits correspondence with the Court concerning scheduling, other routine matters, and to advise the court that a case has been settled or dismissed. Any written communication requesting action by the Court should include at a minimum: a description of the situation requiring the Court's attention; the position of the opposing party (i.e., consent or opposition); and, the specific relief sought. Otherwise, all communications with the Court should be made by the filing of pleadings, motions, applications, briefs or legal memoranda. (emphasis added). Section I(B), taken as a whole, clearly is intended to specify when parties should and should not correspond with the Court and the types of requests to be included in such correspondence. It does not specify when correspondence may be an exhibit to a filing. Sandoz instead interprets the sentence on which Plaintiffs rely to mean Your Honor does not want counsel to copy Him on correspondence between counsel absent specific direction from the Court. Sandoz has not done and would not do this, even if not stated explicitly in the Procedures. Moreover, even if Plaintiffs’ interpretation were correct and attaching correspondence to briefing were disfavored absent invitation from the Court, this Court’s March 11, 2019 Order staying all deadlines and setting the Motion for Continuance for hearing on March 18, 2019 specifically invited a response from Sandoz to the Motion for Continuance (Dkt. 112). Rather than detail the history of the discovery issues described inaccurately in the Motion for Continuance in its Opposition without any cited support, Sandoz reasonably interpreted this Order to invite Sandoz to provide a full response, including documents evidencing the actual history of document production in this case; Sandoz’ attempts to schedule 30(b)(6) depositions and offers of dates for such witnesses; Sandoz’ attempts to complete expert depositions; Sandoz’ proposal not to oppose a limited continuance that would not reopen discovery for all purposes and Plaintiffs’ rejection of such proposal; and the other factual record sorely lacking from Plaintiffs’ objectionable Motion for Continuance. Sandoz understands Plaintiffs would prefer the Court not have a full record proving these points, but this is an insufficient reason to strike exhibits directly relevant to the dispute and which provide important context to Sandoz’ position. Case 2:16-cv-02362-ER Document 116 Filed 03/15/19 Page 4 of 6 - 4 - III. CONCLUSION Sandoz respectfully requests that this Court deny the Motion to Strike, and consider the exhibits that Sandoz appropriately attached to its Opposition to the Motion for Continuance. Dated: March 15, 2019 Respectfully submitted, GREENBERG TRAURIG, LLP /s/ Sara K. Thompson Gregory T. Sturges 1717 Arch St., Suite 400 Philadelphia, PA 19103 (215) 988-7820 sturgesg@gtlaw.com Sara K. Thompson (admitted pro hac vice) Lori G. Cohen (admitted pro hac vice) 3333 Piedmont Road NE, Suite 2500 Atlanta, Georgia 30305 (678) 553-2100 thompsons@gtlaw.com cohenl@gtlaw.com Attorneys for Defendant Sandoz Inc. Case 2:16-cv-02362-ER Document 116 Filed 03/15/19 Page 5 of 6 - 5 - IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CAROLINE POLT AND MONICA POLT, Individually and as Co-Executors of the Estate of JOANNE POLT, deceased, Plaintiffs, vs. SANDOZ INC., Defendant. Civil Action No.: 2:16-cv-02362 Hon. Eduardo Robreno CERTIFICATE OF SERVICE I certify that on March 15, 2019, a copy of the foregoing Defendant Sandoz Inc.’s Response in Opposition to Plaintiffs’ Motion to Strike Defendant’s Exhibits and all attached exhibits was filed electronically and served on all counsel of record via the Court’s ECF System and email. /s/Gregory T. Sturges Gregory T. Sturges Case 2:16-cv-02362-ER Document 116 Filed 03/15/19 Page 6 of 6