1 Previously, I designated my recommendations on discovery

matters as Decisions and Recommendations. However, pursuant to

amended Federal Rule of Civil Procedure 53, all further

recommendations will be designated as Reports and Recommendations.

Accordingly, this document is designated as Report and

Recommendation No. 13, which follows Report and Recommendation No.

12. See Report and Recommendation No. 12, filed on April 26, 2004.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

IN RE: DIET DRUGS (PHENTERMINE/ :

FENFLURAMINE/DEXFENFLURAMINE) :

PRODUCTS LIABILITY LITIGATION : MDL DOCKET NO. 1203

:

THIS DOCUMENT RELATES TO: :

___________________________________:

:

MARTINEZ, et al., :

Plaintiffs, :

v. :

: CIVIL ACTION NO. 02-20135

WYETH, et al. :

Defendants. :

___________________________________:

:

MELDER, et al., :

Plaintiffs, :

:

v. :

: CIVIL ACTION NO. 02-20142

WYETH, et al. :

Defendants. :

___________________________________:

REPORT AND RECOMMENDATION NO. 13

1 OF THE

SPECIAL DISCOVERY MASTER (AS TO WYETH’S

MOTION TO STRIKE IN THE MARTINEZ AND MELDER MATTERS)

I. INTRODUCTION

Wyeth seeks an Order from this Court striking the experts of

Plaintiffs Peggy Martinez, Marilyn Melder and Tefferny Perez

(collectively the “Plaintiffs”) because of their failure to comply

with this Court’s discovery deadlines and Federal Rule of Civil

Case 2:02-cv-20135-HB Document 11 Filed 07/12/2004 Page 1 of 14
2 Plaintiffs Peggy Martinez (“Martinez”) and Tefferny Perez

(“Perez”) are Plaintiffs in the Martinez matter, and Plaintiff

Marilyn Melder (“Melder”) is a Plaintiff in the Melder matter. 

3 In addition to reviewing the pleadings of the parties, I

considered the arguments made by the parties in a March 19, 2004

Teleconference. See Transcript of March 19, 2004 Teleconference,

attached hereto as Exhibit A. 

2

Procedure 26(a)(2).

2 See Wyeth’s Motion to Strike Plaintiffs’

Marilyn Melder and Peggy Martinez’s Expert Witnesses and to Bar

Plaintiff Tefferny Perez from Designating an Expert (“Wyeth’s

Motion to Strike”). Wyeth contends that Plaintiffs’ conduct was

dilatory, in bad faith and severely prejudicial to Wyeth.

In response, Plaintiffs argue that while they failed to

produce all of their expert reports on the dates required, their

conduct was not in bad faith. See Plaintiffs’ Response to Wyeth’s

Motion to Strike (“Plaintiffs’ Response”). Further, Plaintiffs

assert that any prejudice suffered by Wyeth can be addressed by

simply extending the discovery deadlines.

3

For the reasons set forth hereafter, I recommend Wyeth’s

request for an Order striking Plaintiffs’ experts be denied. I

recommend, however, that Plaintiffs’ counsel be sanctioned in an

amount to be determined by this Court for their dilatory conduct.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs, represented by the law firm of O’Quinn, Laminack,

and Pirtle (the “O’Quinn firm”), originally filed the Martinez and

Melder matters in Louisiana state court. Subsequently, the cases

were removed to federal court, transferred to MDL No. 1203, and

Case 2:02-cv-20135-HB Document 11 Filed 07/12/2004 Page 2 of 14
3

assigned a Discovery Initiation Date of August 1, 2002. Pursuant

to the established discovery deadlines, Plaintiffs were required to

serve case-specific expert reports by November 1, 2002. Plaintiffs

failed to meet this deadline.

On August 26, 2003, Wyeth notified Plaintiffs of their failure

to provide expert reports as required, and offered to seek jointly

an extension of discovery deadlines. See August 26, 2003 Letter

from Meaghan Shauhnessy, Esquire to Plaintiffs’ Counsel, attached

as Exhibit 1 to Wyeth’s Motion to Strike. On September 18, 2003,

I granted the joint request of the parties for an extension, which

required Plaintiffs to produce expert reports by September 30,

2003. See September 18, 2003 Letter from Gregory Miller, Esquire

to the parties, attached as Exhibit 2 to Wyeth’s Motion to Strike.

Plaintiffs failed to meet this deadline.

On October 14, 2003, Wyeth notified Plaintiffs’ counsel that

it had not received the required expert reports and requested their

immediate production. See October 14, 2003 Letter from Kerri Howe,

Esquire to Rebecca Urrutia, Esquire, attached as Exhibit 3 to

Wyeth’s Motion to Strike. On October 22, 2003, Plaintiffs’ counsel

provided the so-called expert reports for two of the three

Plaintiffs, Martinez and Melder. The report for Plaintiff Martinez

failed to comply with Federal Rule of Civil Procedure 26 because it

only contained an echocardiogram report by one of her treating

physicians, Dr. Chester Falterman. See Plaintiff Martinez’s Expert

Case 2:02-cv-20135-HB Document 11 Filed 07/12/2004 Page 3 of 14
4

Report, attached as Exhibit 5 to Wyeth’s Motion to Strike. The

expert report for Plaintiff Melder also failed to comply with Rule

26 because it only included a letter from Dr. Gabriel Lasala

summarizing his interpretation of her echocardiogram. See

Plaintiff Melder’s Expert Report, attached as Exhibit 6 to Wyeth’s

Motion to Strike.

On October 28, 2003, Wyeth notified Plaintiffs’ counsel of

the deficiencies in the reports, and Plaintiffs’ counsel’s failure

to provide a report for Plaintiff Perez. See October 28, 2003

Letter from Ann Levine, Esquire to Susan Earnest, Esquire, attached

as Exhibit 4 to Wyeth’s Motion to Strike. The specific

deficiencies noted included: 1) Dr. Falterman’s and Dr. Lasala’s

failure to provide an opinion on causation; 2) Dr. Falterman’s

failure to address Plaintiff Martinez’s exposure to diet drugs; 3)

Dr. Lasala’s failure to address Plaintiff Melder’s exposure to diet

drugs; 4) the failure of both expert reports to comply with Rule

26 in that there was no disclosure of the “basis and reasons for

[their] opinions” and the “data or other information considered by

the witness[es] in forming [their] opinions.” See id. Wyeth

stated that if it did not receive compliant expert reports from all

three Plaintiffs by November 5, 2003, it would move to strike

Plaintiffs’ expert reports. See id.

On December 9, 2003, after receiving no response to its

letter, Wyeth filed its Motion to Strike. In its Motion, Wyeth

Case 2:02-cv-20135-HB Document 11 Filed 07/12/2004 Page 4 of 14
4 Wyeth believes that Plaintiff Perez’s expert report is

Rule 26-compliant. However, Wyeth believes that Plaintiff Melder’s

supplemental expert report was still deficient on the issue of

causation. See Wyeth’s Reply to Plaintiffs’ Response to Wyeth’s

Motion to Strike Plaintiffs Marilyn Melder’s and Peggy Martinez’s

Expert Witnesses and to Bar Plaintiff Tefferny Perez from

Designating an Expert (“Wyeth’s Reply”) at 4. 

5

asserted that Plaintiffs’ conduct was dilatory, in bad faith and

prejudicial to Wyeth and, therefore, Plaintiffs’ experts should be

excluded. See Wyeth’s Motion to Strike at 5-7. Plaintiffs’

response to Wyeth’s Motion to Strike was due on or about December

23, 2003. In January 2004, upon determining that Plaintiffs had

not filed a response to Wyeth’s Motion to Strike, the Special

Master’s Office contacted Plaintiffs’ counsel regarding the same.

Plaintiffs’ counsel committed to filing a response promptly.

On January 30, 2004, Plaintiff Melder served a supplemental

expert report, which included an opinion that Ms. Melder’s “aortic

regurgitation . . . could be secondary to anorexic drugs.” See

Exhibit 2 of Plaintiffs’ Response. Also, Plaintiffs’ counsel

provided an expert report for Plaintiff Perez.

4 See Exhibit 4 of

Plaintiffs’ Response.

On February 9, 2004, Plaintiffs filed their Response to

Wyeth’s Motion to strike asserting that although the production of

Plaintiff Perez’s expert report was untimely, Plaintiffs Martinez

and Melder’s expert reports were timely. Additionally, Plaintiffs

argued that their conduct was not in bad faith. See Plaintiffs’

Response at 1-6. Accordingly, Plaintiffs request that Wyeth’s

Case 2:02-cv-20135-HB Document 11 Filed 07/12/2004 Page 5 of 14
5 Wyeth makes the additional argument in its Reply that

this Court should not consider Plaintiffs’ Response because it is

untimely. See Wyeth’s Reply at 1. Accordingly, Wyeth contends

that the Court should grant its Motion as unopposed pursuant to

Local Rule of Civil Procedure 7.1(c). See id. at 1-2. Wyeth

asserts that Plaintiffs’ Response was due within fourteen days of

Wyeth’s Motion, or December 23, 2003. See id. As Plaintiffs did

not file their Response until February 9, 2004, and did not offer

any explanation for its untimeliness, Wyeth maintains that this

Court should decline to consider it and grant Wyeth’s Motion. See

id. Although Wyeth is correct that the Response was not timely,

the severity of the sanction sought warrants, in my view,

consideration of Plaintiffs’ Response. 

6 On April 23, 2004, Wyeth sent correspondence to the

Special Master contending that Plaintiff Melder should be

prohibited from supplementing her expert report for a second time

since it was six months overdue. See April 23, 2004 Letter from

David Neslin to Gregory Miller, attached hereto as Exhibit B.

6

Motion to Strike be denied and additional time be given to complete

discovery. See id. On February 23, 2004, Wyeth filed a Reply

contending that Plaintiffs’ reports were not timely and were

legally insufficient on the issue of causation.

5

On April 8, 2004, Plaintiff Melder served a second

supplemental expert report. In this report, Plaintiff Melder’s

expert states “there is a reasonable, medical probability that

[Ms. Melder’s] aortic insufficiency is due to anorexic drugs.” 6

See Plaintiff Melder’s Second Supplemental Expert Report, attached

hereto as Exhibit C.

III. DISCUSSION

Wyeth’s request for an order striking Plaintiffs’ expert

witnesses must be evaluated under the factors set forth in Poulis

v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984). In

Case 2:02-cv-20135-HB Document 11 Filed 07/12/2004 Page 6 of 14
7 If Wyeth obtained its requested relief in the instant

matters, Plaintiffs would be left without evidence on causation.

As such, Plaintiffs’ cases would be ripe for dismissal. 

8 A Poulis analysis requires a balancing of all the

factors. See Estate of Leon Spear v. Commissioner of I.R.S., 41

F.3d 103, 111 (3d Cir. 1994). Thus, “[n]ot all of these factors

need be met for a . . . court to find that [a sanction] is

warranted.” Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988).

7

Poulis, the Third Circuit listed six factors a district court must

consider when requested relief would effectively result in a

dismissal. See Poulis, 747 F.2d 863, 868.

7 The six Poulis factors

are: (1) the extent of the party’s personal responsibility; (2) the

prejudice to the adversary; (3) the party’s history of

dilatoriness; (4) whether the conduct of the party’s attorney was

willful or in bad faith; (5) the effectiveness of alternative

sanctions; and (6) the meritoriousness of the claim or defense.

See id. at 868. Wyeth contends that an Order from this Court

striking Plaintiffs’ expert witnesses is warranted under these

factors. See Wyeth’s Motion to Strike at 7.

A. Analysis of Poulis Factors

Of the six factors discussed in Poulis, I believe Wyeth has

established two factors: (1) Plaintiffs’ history of dilatoriness;

and (2) prejudice to Wyeth. These two factors alone warrant the

imposition of a sanction.

8

1. History of Dilatoriness

Plaintiffs have demonstrated dilatoriness during the history

Case 2:02-cv-20135-HB Document 11 Filed 07/12/2004 Page 7 of 14
9 According to Plaintiffs’ counsel, Plaintiff Martinez’s

expert, Dr. Falterman, inadvertently destroyed the echocardiogram

tape. See Exhibit A at 16:21-17:6. Neither Wyeth nor I was aware

that this tape was destroyed until the Teleconference on March 19,

2004. Plaintiffs had an obligation to inform Wyeth about the

destroyed tape prior to March 19, 2004.

10 Wyeth disputes that Plaintiff Melder’s expert report

was compliant by January 30, 2004, because Dr. Lasala’s opinion

that Melder’s aortic regurgitation “could be” secondary to anorexic

drugs is legally insufficient. See Wyeth’s Reply at 4. Wyeth

8

of this litigation. For example, Plaintiffs failed to provide

expert reports by November 1, 2002, pursuant to their original

discovery deadline. They subsequently failed to provide expert

reports by September 30, 2003, under their revised discovery

deadline. Plaintiffs Martinez and Melder provided their expert

disclosures on October 22, 2003, three weeks after the revised

deadline. On October 28, 2003, Wyeth informed Plaintiffs Martinez

and Melder that their expert reports were deficient, and reminded

Plaintiff Perez that her report was still due. On January 30,

2004, over three months later, Plaintiff Perez finally submitted an

expert report and Plaintiff Melder supplemented her expert report.

Plaintiff Martinez’s report remains deficient even though

Plaintiffs’ counsel conceded during the March 19, 2004

Teleconference that Martinez’s expert report does not comply with

Federal Rule of Civil Procedure 26.

9 See Exhibit A at 22:6-12.

Plaintiffs’ counsel also acknowledged that Plaintiffs Melder and

Perez did not submit compliant expert reports until January 30,

2004.

10 See Exhibit A at 25:11-16.

Case 2:02-cv-20135-HB Document 11 Filed 07/12/2004 Page 8 of 14
maintains that it is settled law that causation must be proved by

a preponderance of the evidence, and Dr. Lasala’s opinion fails to

carry that burden as a matter of law. See id. Be that as it may,

I do not find Plaintiffs’ counsel’s statement credible that Melder

submitted a compliant expert report by January 30, 2004, when on

April 8, 2004, Melder submitted a second supplemental expert

report. See Exhibit C. Wyeth does not contend Plaintiff Melder’s

second supplemental expert report is non-compliant, only that it

should be excluded because it was untimely. 

9

In my view, Plaintiffs’ counsel’s conduct was dilatory in

producing compliant expert reports. Further, Plaintiffs’ counsel’s

failure to communicate with opposing counsel and my office only

compounded the situation. Indeed, Plaintiffs’ counsel offered

during the Teleconference that “in hindsight we probably should

have gotten in here and asked for time.” See Exhibit A at 24:8-9.

In Multi-district Litigation of this size and scope, communication

with opposing counsel and with my office regarding discovery issues

is absolutely necessary if discovery is to proceed in an efficient

manner. Accordingly, I believe this factor weighs in favor of

Wyeth.

2. Prejudice

In my view, Wyeth has been prejudiced by Plaintiffs’ actions.

In addition to the burden of filing its Motion to Strike and a

Reply, Wyeth contacted my office and Plaintiffs' counsel on a

number of occasions in an attempt to obtain Plaintiffs’ compliance

with discovery deadlines and Federal Rule of Civil Procedure

26(a)(2). Wyeth was met with either non-response or incomplete

documentation from Plaintiffs. Plaintiffs failure to communicate

Case 2:02-cv-20135-HB Document 11 Filed 07/12/2004 Page 9 of 14
10

also caused both Wyeth and my office to expend unnecessary

resources. Additionally, Wyeth has been hindered in its ability to

prepare its experts adequately because of Plaintiffs’ conduct.

Finally, Wyeth’s prejudice continues until the present time in that

Plaintiff Martinez’s expert report remains non-compliant.

Accordingly, I believe this factor weighs in favor of Wyeth.

3. Other Poulis Factors

There are four other Poulis factors including: (a) bad faith;

(b) meritoriousness of claims; (c) Plaintiffs’ personal

responsibility; and (d) effectiveness of alternative sanctions. In

my view, Wyeth has not established that any of the other factors

weigh in its favor.

a. Bad Faith

I do not believe Wyeth has met its burden of demonstrating bad

faith on the part of Plaintiffs’ counsel. During the

Teleconference, Plaintiffs’ counsel acknowledged that they should

have complied with the September 30, 2003 deadline, and that they

should have requested more time because they had difficulty in

getting their experts to produce reports in a timely fashion. See

Exhibit A at 23:24-25, 24:8-11. Plaintiffs’ counsel’s statements

do not indicate intentional conduct on their part with respect to

the delay in submitting compliant reports. The O’Quinn firm

handles a large volume of plaintiffs, and the most plausible reason

for the firm’s failure to submit timely expert reports is this

Case 2:02-cv-20135-HB Document 11 Filed 07/12/2004 Page 10 of 14
11

caseload. Accordingly, I do not believe this factor weighs in favor

of Wyeth.

b. Meritoriousness of Claims

In my view, Wyeth failed to meet its burden in demonstrating

that Plaintiffs’ claims lack merit. During the Teleconference,

Wyeth argued that Plaintiffs Martinez and Melder claims did not

appear to be meritorious based on their deficient expert reports.

See Exhibit A at 13:23-14:6. Plaintiffs argued that their

echocardiograms show FDA-positive regurgitation and thus, they may

pursue claims against Wyeth as intermediate opt-outs. See id. at

32:9-18. With no other evidence upon which I can rely, I cannot

determine for certain whether Plaintiffs’ claims lack merit.

Accordingly, this factor does not weigh in favor of Wyeth.

c. Plaintiffs’ Personal Responsibility

Wyeth takes no position regarding whether Plaintiffs are

personally responsible for the non-compliant and delayed expert

reports submitted on their behalf. Thus, this factor does not

weigh in favor of Wyeth.

d. Effectiveness of Alternative Sanctions

Wyeth argues that the only effective sanction against

Plaintiffs is to exclude their expert reports. While I believe

that a sanction is warranted due to Plaintiffs’ conduct, exclusion

of Plaintiffs’ expert reports is not the only effective sanction.

Indeed, the exclusion of evidence is an extreme measure to be used

Case 2:02-cv-20135-HB Document 11 Filed 07/12/2004 Page 11 of 14
12

only in the most egregious cases. See Sheppard v. Glock, 176

F.R.D. 471, 473 (E.D. Pa. 1997)(stating that “the exclusion of

evidence is an extreme sanction”) (internal quotations omitted). It

is likely that exclusion of Plaintiffs’ expert reports would result

in the dismissals of their cases. This is unwarranted given my

belief that Plaintiffs’ counsel’s conduct, although dilatory, was

unintentional. See id. at 473 (recognizing that “when evidence

preclusion is tantamount to a dismissal . . . preclusion is proper

only when dismissal would be proper as well”) (citations omitted).

Further, Plaintiffs did not contribute to the dilatory conduct of

their counsel. As such, if Plaintiffs’ expert reports were

excluded, Plaintiffs would be punished for the actions of their

counsel. Accordingly, because I believe there is an alternative,

more effective sanction than exclusion, see infra, Section 3.B.,

this factor does not weigh in favor of Wyeth.

B. Alternative Sanction

Federal Rule of Civil Procedure 16(f) provides that the Court

may impose monetary sanctions if a party’s attorney fails to “obey

a scheduling or pretrial order . . . .” See Fed.R.Civ.P. 16(f).

In the instant matters, Plaintiffs have consistently failed to meet

the scheduling deadlines established for their cases. For example,

Plaintiffs first failed to provide expert reports by November 1,

2002, the original expert report deadline. Then, Plaintiffs failed

to provide expert reports by the revised expert report deadline,

Case 2:02-cv-20135-HB Document 11 Filed 07/12/2004 Page 12 of 14
13

September 30, 2003. Plaintiffs Martinez and Melder subsequently

provided non-compliant expert reports three weeks later. Over

three months later, and four months after the revised deadline,

Plaintiff Perez provided her compliant expert report. Over two

months later, and over six months after the revised deadline,

Plaintiff Melder supplemented her expert report for the second time

in an attempt to make it compliant. Further, nine months have

passed and Plaintiff Martinez still has not submitted a compliant

expert report.

In my view, Plaintiffs’ actions warrant the application of a

monetary sanction on the O’Quinn firm pursuant to Rule 16(f). I

believe that the imposition of a sanction would deter other

litigants in MDL No. 1203 from engaging in similar dilatory

behavior.

IV. RECOMMENDATION

In my view, some sanction should be imposed on Plaintiffs’

counsel. However, in applying the Poulis factors, I do not believe

exclusion of the Plaintiffs’ experts is warranted under the facts

of this case. Therefore, I recommend that Wyeth's Motion to Strike

be denied, and a monetary sanction in an amount to be determined by

the Court be imposed. Further, I recommend that Plaintiff Martinez

supplement her expert report to make it compliant with Federal Rule

of Civil Procedure 26 within thirty days. If Plaintiff Martinez

fails in this regard, I recommend that her expert report be

Case 2:02-cv-20135-HB Document 11 Filed 07/12/2004 Page 13 of 14
11 My recommendation does not preclude Wyeth from making an

application for attorneys’ fees pursuant to Federal Rule of Civil

Procedure 37 for Plaintiffs failure to timely submit compliant

expert reports. 

14

excluded.

11

V. CONCLUSION

Any party wishing to appeal this Report and Recommendation No.

13 must file such appeal with the Court within seven (7) days of

receipt, as permitted by the provisions of Pretrial Order No. 26.

SO RECOMMENDED:

GREGORY P. MILLER, ESQUIRE

SPECIAL DISCOVERY MASTER

MILLER, ALFANO & RASPANTI, P.C.

1818 Market Street, Suite 3402

Philadelphia, PA 19103

(215) 972-6400

Dated: July 12, 2004

F:\PBL\GPM\fenphen.discovery\R&R's\R&R13.wpd

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