Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re National Prescription Opiate Litigation

United States District Court, N.D. Ohio, Eastern Division

August 5, 2019

IN RE NATIONAL PRESCRIPTION OPIATE LITIGATION THIS DOCUMENT RELATES TO: County of Summit, et al.
v.
No. Purdue Pharma L.P., et al, 1:18-op-45090

          OPINION & ORDER

          DAN AARON POLSTER, UNITED STATES DISTRICT JUDGE

         Before the Court are five motions: Defendant Allergan plc's Motion to Dismiss for Lack of Jurisdiction (“Allergan plc's Motion”), Doc #: 1258, Defendant Teva Pharmaceutical Industries Ltd.'s (“Teva Ltd.”) Motion to Dismiss for Lack of Jurisdiction (“Teva Ltd.'s Motion”), Doc #: 1264, Defendant Mallinckrodt plc's Motion by Special Appearance to Dismiss the Corrected Second Amended Complaint for Lack of Personal Jurisdiction (“Mallinckrodt plc's Motion”), Doc #: 1266, Mallinckrodt plc's Motion to Strike the Expert Report of Alec Fahey (“Mallinckrodt plc's Motion to Strike”), Doc #: 1836, and Teva Ltd.'s Motion to Strike the Expert Report of Alec Fahey (“Teva Ltd.'s Motion to Strike”), Doc #: 2082. For the following reasons, Mallinckrodt plc's Motion to Strike and Teva Ltd.'s Motion to Strike are GRANTED. All three motions to dismiss are hereby DENIED WITHOUT PREJUDICE.

         I. Background

         Plaintiffs retained CPA Alec Fahey on January 2, 2019 to provide forensic accounting services to “determine whether Mallinckrodt plc [] controls and dominates its subsidiaries” and “whether [Teva Ltd.] controls and dominates its subsidiaries[.]” See Doc #: 1717-3; 1815-2. On January 15, 2019, Allergan plc, Teva Ltd., and Mallinckrodt plc all filed the instant motions to dismiss. Doc #: 1258, 1264, and 1266. The Court granted Mallinckrodt plc's Motion for Leave to file its motion on January 17, 2019. Doc #: 1279. On January 25, 2019, Plaintiffs served Mallinckrodt plc with forty-two Requests for Production and twenty-six Interrogatories-all relating to personal jurisdiction. See Doc #: 1836-5 and 1836-6. On February 13, 2019, Plaintiffs filed a Motion for Extension of Time to respond to the three motions to dismiss “in light of Special Master Cohen's oral ruling on February 12, 2019, ordering Defendants to respond to discovery on the specific topic of personal jurisdiction.” Doc #: 1365. Plaintiffs requested that they be permitted to respond to the motions once they completed jurisdictional discovery. Id. The Court granted Plaintiffs' Motion for Extension of Time on February 15, 2019 and directed the parties to meet and confer with Special Master Cohen to determine to what extent personal jurisdiction discovery needed to be taken. Doc #: 1372.

         On March 25, 2019, Plaintiffs disclosed and submitted reports for their Track One experts, as required by Case Management Order (“CMO”) 8, Doc #: 1306. Plaintiffs did not disclose Fahey as an expert. On April 3, 2019, Special Master Cohen issued a Ruling requiring the parties to conduct the “agreed-upon jurisdictional discovery.” Doc #: 1512 at 6. The Ruling set Plaintiffs' Response deadline for all three motions for June 5, 2019. Id. at 10. On June 6, 2019, the parties filed a Stipulated Motion for Extension of Deadlines, requesting that Plaintiffs' Response deadline for Mallinckrodt plc's Motion and Allergan plc's Motion be extended to June 21, 2019 and Plaintiffs Response deadline for Teva Ltd.'s Motion be extended to July 5, 2019. Doc #: 1660. The parties also requested that Mallinckrodt plc and Allergan plc's Reply deadline be extended to July 12, 2019 and Teva Ltd.'s be extended to July 19, 2019. Id. The Court granted this second motion for extension. Doc #: 1661. Plaintiffs filed their Response to Mallinckrodt plc's Motion on June 21, 2019 with the Affidavit of Alec Fahey attached as Exhibit 3. Doc #: 1717. On June 27, 2019, the Court granted Plaintiffs and Allergan plc another extension of time, setting Plaintiffs' Response deadline for July 9, 2019 and Allergan plc's Reply deadline for July 30, 2019. Doc #: 1744. The parties filed Letter Briefs on July 2, 2019, in compliance with the Court's request for a short summary of the basis for the Motion. See Doc #: 1836-8. In Mallinckrodt plc's Letter Brief, it requested additional jurisdictional discovery, including taking Fahey's deposition. Id.

         On July 3, 2019, the Court issued a Non-Document Order denying any further requests for additional jurisdictional discovery and directing the parties to comply with the current briefing schedule. That same day, the Court granted Plaintiffs and Teva Ltd. another extension of time, setting Plaintiffs' Response deadline for July 9, 2019 and Teva Ltd.'s Reply deadline for July 30, 2019. Doc #: 1804. On July 5, 2019, Mallinckrodt plc filed a Motion to Clarify the Court's July 3, 2019 Order. Doc #: 1814. Also on July 5, 2019, Plaintiffs filed their Response to Teva Ltd.'s Motion. Doc #: 1815. The Court issued another Non-Document Order on July 8, 2019, clarifying that its order was not meant to prohibit Mallinckrodt plc from filing a motion to strike Fahey's Affidavit. On July 9, 2019, Plaintiffs filed their Response to Allergan plc's Motion. Doc #: 1823. On July 12, 2019, Mallinckrodt plc filed its Reply brief, Doc #: 1835, and a Motion to Strike the Expert Report of Alec Fahey, Doc #: 1836. Plaintiffs filed a Response brief to Mallinckrodt plc's Motion to Strike, Doc #: 2065, on July 27, 2019. Allergan plc filed its Reply on July 30, 2019. Doc #: 2079. So did Teva Ltd. Doc #: 2081. Teva Ltd. also filed its motion to strike on July 30, 2019. Doc #: 2082.

         Now, over six months after these motions to dismiss were filed and three extensions of time later, these motions are fully briefed before the Court.

         II. Analysis

         A. Motion to Strike

         As recited in § I(A), Plaintiffs retained CPA Alec Fahey on January 2, 2019 to provide forensic accounting services to “determine whether Mallinckrodt plc [] controls and dominates its subsidiaries” and “whether [Teva Ltd.] controls and dominates its subsidiaries[.]” See Doc #: 1717-3; 1815-2. On January 29, 2019, the Court issued its Case Management Order No. 8, setting Plaintiffs' deadline to serve their expert reports for March 25, 2019. Doc #: 1306 at 1. Plaintiffs' expert report disclosures did not include Alec Fahey. Plaintiffs did not disclose Fahey's Affidavits until they filed their Response briefs on June 21, 2019 and July 15, 2019. See Doc #: 1717-3; 1815-2. Thus, Mallinckrodt plc and Teva Ltd. moved to strike the Fahey Affidavit as untimely. See Doc #: 1836; 2082.

         Federal Rule of Civil Procedure 26(a)(2) requires a party to disclose its testifying witnesses “at the time and in the sequence that the court orders.” Fed. R. Civ. P 26(a)(2)(A); Fed. R. Civ. P 26(a)(2)(D). In this case, the Court-ordered disclosure deadline was March 25, 2019. “District courts have broad discretion to exclude untimely disclosed expert-witness testimony.” Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir. 2000). The Court finds excluding an expert witness's untimely testimony especially appropriate where, as in this case, Plaintiffs retained the expert months before the expert report deadline. Plaintiffs argue in their Response to Mallinckrodt's Motion to Strike that any delays in disclosing Fahey's Affidavit were caused by Mallinckrodt's persistent refusal to accept service of the complaints in the litigation. Mot. to Strike Opp. at 7. However, Plaintiffs retained Fahey on January 2, 2019-over two months before the expert disclosure deadline on March 25, 2019. Plaintiffs provide no explanation for why they did not disclose Fahey before the expert disclosure deadline. Thus, the Court agrees with Mallinckrodt plc and Teva Ltd. that Fahey's Affidavits should be stricken. The Court will only consider those Exhibits to Fahey's Affidavits that have not been created by Fahey. Accordingly, Mallinckrodt plc's Motion to Strike, Doc #: 1836, and Teva Ltd.'s Motion to Strike, Doc #: 2082, are hereby GRANTED.

         B. Motions to Dismiss for Lack of Personal Jurisdiction

         1. Standard

         “To survive a motion to dismiss for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2), a plaintiff must prove that jurisdiction is proper over each defendant individually.” SFS Check, LLC v. First Bank of Delaware, 774 F.3d 351, 355-56 (6th Cir. 2014) (citation omitted). In ruling upon a motion to dismiss for lack of personal jurisdiction, the district court has three procedural alternatives: “[it] may determine the motion on the basis of affidavits alone; or it may permit discovery in aid of the motion; or it may conduct an evidentiary hearing on the merits of the motion.” SFS Check, LLC v. First Bank of Delaware, 990 F.Supp.2d 762, 769 (E.D. Mich. 2013). “When, as here, the district court allows discovery on the motion, the court should consider the facts offered by both parties and rule according to the preponderance of the evidence.” Id. at 356 (citing Serras v. First Tenn. Bank Nat'l Ass'n, 875 F.2d 1212, 1214 (6th Cir.1989)). Additionally, an evidentiary hearing may be conducted “if the district court concludes that the written submissions have raised issues of credibility or disputed issues of fact which require resolution[.]” American Greetings Corp. v. Cohn, 839 F.2d 1164, 1169 (6th Cir.1988). Judicial resources may be more efficiently deployed if the court holds but one hearing on the contested facts. Serras v. First Tennessee Bank Nat. Ass'n, 875 F.2d 1212, 1215 (6th Cir. 1989) (citation omitted). Thus, a court may combine a personal jurisdiction evidentiary hearing with the trial on the merits. Sledge v. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.