United States District Court, D. Delaware
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, 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. 197,
203, 206, 207, 208).
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.l. 13). In October 2017, Plaintiff filed a
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 its July 28, 2017
order, including a discovery cutoff deadline of December 15,
2017, and a dispositive motion deadline of March 30, 2018.
January 18, 2018, the Court extended the deadlines and at the
same time ordered Defendants to produce Clinical Study
Reports ("CSRs") identified in their Submission
Identifying Risperdal Studies Involving Males ages 40 to 50.
(See D.I. 194). Plaintiff was given until May 20, 2019 to
review the CSRs in a manner determined and arranged by
Delaware Department of Correction personnel at the VCC.
Plaintiff moves for clarification and reconsideration of the
order. (D.I. 197). He also requests an additional 30 days to
review the materials. (D.I. 206). In addition, Plaintiff has
filed what appears to be a motion for reconsideration to
obtain prior discovery requests and asks the Court to impose
sanctions against Defendants. (D.I. 203). He once again moves
for appointment of an expert and/or funds for an expert.
(D.I. 207). Finally, he asks the Court to set a scheduling
conference. (D.I. 208).
Motion For Clarification And For
the Court ordered Defendants to produce the CSRs for
Plaintiffs review, it did so based upon Defendants'
representations that the discovery would fill approximately
six banker's boxes. (See D.I. 173 at 14). Plaintiff seeks
clarification because it was not clear if Defendants would
produce 12, 000 pages of documents or the six banker's
boxes. (D.I. 197 at 1). A few days after Plaintiff filed his
motion, Defendants advised the Court that they were providing
eight boxes of documents. (D.I. 198). Plaintiffs motion for
clarification will be dismissed as moot.
Plaintiff also seems to move for reconsideration to obtain
responses to specific discovery requests and seeks sanctions
for Defendants' alleged failure to produce discovery.
(D.I. 197, 203). Defendants oppose the motions.
purpose of a motion for reconsideration is to "correct
manifest errors of law or fact or to present newly discovered
evidence." Max's Seafood Cafe ex rel. Lou-Ann,
Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
"A proper Rule 59(e) motion .. . must rely on one of
three grounds: (1) an intervening change in controlling law;
(2) the availability of new evidence; or (3) the need to
correct clear error of law or [to] prevent manifest
injustice." Lazaridis v. Wehmer, 591 F.3d 666,
669 (3d Cir. 2010).
Court has reviewed Plaintiffs motion and the January 18, 2019
Memorandum Order. In doing so, the Court finds that Plaintiff
has failed to demonstrate any of the grounds necessary to
warrant a reconsideration of that order. To the extent
Plaintiff moves for reconsideration of prior orders ruling on
discovery motions, and in particular the Court's May 8,
2018 Order (see D.I. 170), the time to do so has
long passed. See Fed. R. Civ. P. 59(e) and D. Del.
LR 7.1.5 (motions for reargument filed pursuant to
Fed.R.Civ.P. 59(e) shall be filed in accordance with Rule
59(e) time limits (i.e., no later than 28 days after
entry). Finally, Plaintiffs motion for sanctions is
frivolous. According, the Court will deny Plaintiffs motions
for reconsideration and for sanctions. (D.I. 197, 203).
Motion For Appointment and/or Funds for
seeks funds to obtain expert services "necessary for
adequate representation of the facts and science of complex
residual affects of using the drug Risperdal" pursuant
to 18 U.S.C. § 3006A(e)(1) or "feasible
statutes." (D.I. 207). Plaintiff previously filed an
almost identical motion. (See D.I. 96). That motion was
denied on May 8, 2018. (See D.I. 169, 170).
instant motion will be denied for the reasons set forth in
the May 8, 2018 Memorandum and Order. (See id.)