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Evans v. Johnson and Johnson Co.

United States District Court, D. Delaware

May 8, 2018

AUGUSTUS HEBREW EVANS, JR., Plaintiff,
v.
JOHNSON AND JOHNSON COMPANY, Defendants.

          Augustus Hebrew Evans, Jr., James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se Plaintiff.

          Todd C. Schiltz, Esquire, Drinker Biddle & Reath LLP, Wilmington, Delaware, and Daniel J. Brown, Esquire, and Hayley J. Reese, Esquire, McCarter & English, LLP, Wilmington, Delaware, Counsel for Defendants.

          MEMORANDUM

          ANDREWS, U.S. DISTRICT JUDGE

         Plaintiff Augustus Hebrew Evans, Jr., an inmate at the James T. Vaughn Correctional Center in Smyrna, Delaware, who appears pro se, filed this action in the Superior Court of the State of Delaware in and for Kent County, Case No. K14C-09-028 RBY, raising claims under Delaware law. The matter was removed to this Court on October 16, 2014. (D.I. 1). The First Amended Complaint is the operative pleading. (D.I. 44). Before the Court are numerous motions filed by Plaintiff. (D.I. 91, 93, 96, 100, 132, 139, 146, 158).

         BACKGROUND

         The First Amended Complaint alleges negligence, negligent misrepresentation, breach of warranty, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, breach of express warranty, and fraud by concealment arising out of Defendants' development, marketing, and sale of the drug commonly referred to as Risperdal. (D.I. 44). Upon motion, Plaintiff was provided counsel in the early stages of this case. (See D.I. 13). In October 2017, Plaintiff filed a i motion to proceed pro se. The motion was granted on November 6, 2017, and Plaintiffs counsel withdrew. (D.I. 89). At that time, the parties were advised that the case would proceed on the deadlines set forth in the Court's July 28, 2017 order, including a discovery cutoff deadline of December 15, 2017, and a dispositive motion deadline of March 30, 2018. (D.I. 82). Since that time Plaintiff has filed a number of motions, seeking extensions of time and discovery, many of them complaining about defense counsel's tactics.

         DISCOVERY

         On November 20, 2017, Plaintiff moved for counsel to forward "all relevant discovery" to Plaintiff. (D.I. 91). Counsel states that discovery responses have been forwarded to Plaintiff. (D.I. 97). Counsel also received in excess of 1, 500, 000 pages on a hard drive. Counsel objects to printing the pages, both as being prohibitively expensive and, implicitly, as being beyond Plaintiffs capacity, given his living situation, to store and process. Plaintiff recognizes this reality, requesting that the Court prevent "the game they played in sending million documents to choose from with counsel." (D.I. 93 at 2). It is not discharged counsel's job to cull the "relevant discovery" from the million plus pages provided by Defendants. Thus, I consider counsel's provision of discovery responses without the million and a half pages to discharge their obligation to Plaintiff. The motion (D.I. 91), therefore, will be dismissed as moot in part and denied in part.

         In addition, Defendants oppose the motion on the grounds that Plaintiff has failed to abide by the Rules of this Court, requiring the production of confidential documents to Plaintiff will violate the terms of the stipulated protective order (D.I. 79), and their production would result in an undue burden that is not proportional to the needs of this case. (D.I. 99). Plaintiff responds that, because he proceeds pro se, he should be held to less stringent standards, the discovery is relevant to the needs of the case, a hearing is necessary to resolve this issue, and a protective order could be entered to maintain the confidentiality of the documents. (D.I. 102).

         Court filings indicate that on May 31, 2017, Defendants were ordered to narrow their proposed production of documents to a more reasonable set. (See D.I. 111 at Ex. 2). The Court is unable to discern from the docket in this case whether this narrowing occurred, although there is evidence that the parties were working toward it while Plaintiff had counsel. (D.I. 77 at 1-2). When reviewing Plaintiffs filings, it appears the discovery he seeks consists of scientific studies or statistical reports regarding males age 40 to 50, that compare the lengths of use of Risperdal and typical injuries associated with its use. (D.I. 92 p.2, D.I. 102 at p.2; D.I. 107 at p.1; D.I. 142 at p.2; D.I. 150 at p.1).

         Defendants scheduled Plaintiffs deposition to take place on December 14, 2017. (D.I. 110). Plaintiff opposed on the grounds that on May 31, 2017, Defendants were ordered to narrow their proposed production of documents to a more reasonable set, and it is impossible for him to proceed with his case when he is unable to obtain relevant documents. (D.I. 110, 111, 113). The Court ordered that Plaintiffs deposition be held in abeyance pending a ruling on his opposition. (D.I. 114).

         Plaintiff was provided competent counsel who ably represented him, yet he opted to proceed pro se, which is his right. Nevertheless, his decision has consequences. The production of one million plus pages of documents makes it difficult, if not impossible, to provide him paper documents. This is especially true in light of prison rules and regulations regarding the storage of documents in an inmate's cell. Nor does it seem feasible to produce the voluminous documents at a location for Plaintiff to personally review them to determine if any of the documents are relevant to the issues he raises. Plaintiff seems most interested in the production of scientific studies or statistical reports regarding males age 40 to 50, that compare lengths of use of the Risperdal and typical injuries associated with its use. Given that Plaintiff has identified with some specificity what he is seeking, it seems like a reasonable first step to find out whether such discovery exists. Defendants will be ordered to identify and describe any responsive discovery, including the length of any such discovery. At the same time, Defendants may address any confidentiality concerns and how those concerns may be resolved.

         Finally, Plaintiff has filed numerous motions for conferences or hearings "to bring order to this case" and to extend deadlines. (D.I. 93, 100, 139, 150, 151). Plaintiff, who is incarcerated, indicates that he could participate by telephone, video, or in person. Plaintiff argues that Defendants will "fully exploit the fact that he is incarcerated, " and, that at the time he filed the request, he had received "zero discovery from prior counsel." (D.I. 93). Plaintiff seeks to amend the scheduling deadlines on the grounds that it is impossible for him to abide by the schedule "due to the elephant in the room." (D.I. 100). Defendants oppose, but indicate they will participate in a conference if it would be helpful to the Court. (D.I. 143).

         Plaintiffs motions for hearings/conferences will be denied, but the motion to amend deadlines will be granted. In light of the posture of this case, the Court will cancel the pretrial conference and trial dates, to be rescheduled once the Court is satisfied the discovery issue regarding the production of scientific studies or statistical reports, as ...


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