NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4813-15T4
RHONDA FULLER,
Plaintiff-Appellant,
v.
BAYER CORP, BAYER HEALTHCARE,
LLC, INTENDIS INC., BAYER AG, TEVA
PHARMACEUTICALS INDUSTRIES, LTD.,
TEVA PHARMACEUTICALS LLC f/k/a
BARR PHARMACEUTICALS INC. and BARR
LABORATORIES, INC.,
Defendants,
and
BAYER HEALTHCARE PHARMACEUTICALS,
INC. and BAYER SCHERING PHARMA AG,
Defendants-Respondents.
_________________________________________
Submitted November 6, 2017 – Decided June 18, 2018
Before Judges Accurso and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No.
L-3654-13.
DeHeer Bureau Advocato, attorneys for
appellant (Andrew K. DeHeer, of counsel and
on the brief).
Drinker Biddle & Reath LLP, and Kaspar J.
Stoffelmayr (Bartlit Beck Herman Palenchar &
Scott LLP) of the Illinois bar, admitted pro
hac vice, attorneys for respondents (Susan
M. Sharko, Jennifer LaMont, and Kaspar J.
Stoffelmayr, on the brief).
PER CURIAM
Plaintiff Rhonda Fuller appeals from an order denying her
motion for reconsideration of an order dismissing her complaint
against defendants Bayer Healthcare Pharmaceuticals, Inc., and
Bayer Pharma with prejudice.1 After reviewing the record and
applicable legal principles, we affirm.
I
Defendants marketed two oral contraceptive drugs, Yaz and
Yasmin. The record informs that, in 2002, plaintiff used Yaz
and Yasmin and subsequently developed gallstones, necessitating
the removal of her gallbladder in 2003. In April 2007, she was
again prescribed these two drugs and, in February 2008, was
diagnosed and treated for a venal thromboembolism. In 2013,
plaintiff filed a complaint against defendants alleging the use
of these two drugs caused her to develop blood clots and "gall
bladder disease."
1
Other defendants remain in this matter but, for simplicity,
the use of the term "defendants" in this opinion refers solely
to Bayer Healthcare Pharmaceuticals, Inc., and Bayer Pharma AG.
2
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During the litigation numerous case management orders were
entered governing all parties involved in the multicounty
litigation known as the "Yaz/Yasmin/Ocella Product Liability
Litigation," which included the within matter. One case
management order (CMO), specifically CMO #7, required plaintiff
to provide a "Plaintiff Fact Sheet" and signed authorizations to
enable defendants to obtain her medical records. Plaintiff did
not comply with this order and on March 15, 2015, the court
entered CMO #47, which dismissed her complaint without
prejudice.
On August 3, 2015, the court entered CMO #52, which
compelled plaintiff to submit by December 3, 2015 an updated and
complete Plaintiff Fact Sheet, as well as an expert's report on
causation for each alleged injury. The expert's report had to
comply with Rule 4:17-4(e). The order also provided that if
plaintiff did not comply with the order, defendants were
permitted to file a motion to dismiss the complaint within sixty
days after the subject discovery became delinquent. If
plaintiff failed to file a response to defendants' dismissal
motion within fourteen days, the complaint would be dismissed
with prejudice.
In November 2015, plaintiff moved to reinstate her
complaint, which had been dismissed since the entry of the March
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15, 2015 order. She did not produce a Plaintiff Fact Sheet
until oral argument. The court reinstated the complaint on two
conditions. One was she had to fully comply with the terms of
CMO #52 by February 1, 2016. The other was that, if by December
31, 2015 defendants advised plaintiff of any deficiencies in the
Plaintiff Fact Sheet, she had to cure such deficiencies by
January 21, 2016.
The court's decision, memorialized in an order dated
December 18, 2015, also provided plaintiff had to serve all
documents upon defense counsel by email. The order expressly
set forth the defense attorney's name and email address in the
order.
On December 31, 2015, defendants forwarded a letter to
plaintiff advising her of deficiencies they found in the
Plaintiff Fact Sheet. Defendants informed plaintiff they
planned to move for the dismissal of her complaint if such
deficiencies were not cured by January 21, 2016. When plaintiff
did not serve defendants with an expert's report by February 1,
2016, they filed a motion to dismiss the complaint. Plaintiff
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did not oppose the motion and, on February 26, 2016, the court
entered an order dismissing her complaint with prejudice.2
Plaintiff moved for reconsideration of the February 26,
2016 order. The court considered plaintiff's position despite
the fact she had not opposed the original motion. We do not
have a copy of plaintiff's motion papers but, during oral
argument, she claimed she served an expert's report in
accordance with CMO #52. However, she conceded she did not
serve defense counsel. She explained that, at some point in the
past, she sent the report to a law firm in Kansas City that
represents defendants' interests and with which plaintiff
previously communicated about settlement. She also stated that
what she served was an x-ray report.
Plaintiff also argued that when defendants did not receive
her expert's report by February 1, 2016, they were required
under Rule 1:6-2(c) to contact her and advise the report was
overdue. She contended defendants were precluded from filing a
motion to dismiss her complaint until they complied with Rule
1:6-2(c).
2
Defendants' brief contends plaintiff filed a response to their
dismissal motion on March 7, 2016, after the February 26, 2016
order was entered.
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The court pointed out the December 18, 2015 order directed
her to comply with CMO #52 by February 1, 2016, which included
serving her expert's report by the latter date, and under the
circumstances defendants did not have an obligation to
communicate with her concerning her failure to comply with
either order before filing a motion for dismissal. Defendants
asserted they never received an expert's report from plaintiff,
and noted plaintiff did not attach a copy of the alleged report
to her motion papers.
The court suspended oral argument and directed plaintiff to
forward the expert's report to its chambers by facsimile.
Plaintiff transmitted an undated, unsigned, five-page document
that did not reveal or indicate in any way who wrote it or to
whom it was addressed. The first page of what the court
received is not on letterhead; in fact it is not clear the first
page of what was faxed to the court is in fact the first page of
the document.
The first three pages of the document cite studies and
discuss some of negative side-effects of Yasmin and Yaz. The
last two pages address plaintiff's medical history and set forth
the author's opinions. The report states "[t]here are several
factors attributing to the increased risk and likelihood of
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[venous thromboembolism] in this Client[,]" and one of those
risks is the use of these two drugs.
The report claimed the Food and Drug Administration (FDA)
and other monitoring agencies "considered a previous formulation
to increase the risk of venous thromboembolism by 2 to 3
compared to other drugs in the category. . . . The client has
been already taking the higher dosages, which was alerted by the
FDA to have an even increased [sic] for venous thromboembolism
after their review."
However, the document further states that, according to the
FDA, "no specific pharmacodynamic studies were conducted with
Yasmin" and, although Yaz is known to activate the coagulation
profile, the potency and duration of use necessary to cause such
effect is unknown. In addition, the report comments there were
other risk factors present in the "client" that are associated
with venous thromboembolism and unrelated to the use of the
subject drugs.
The report concludes, "[i]t is therefore believed that from
the information in the medical [l]iterature, the drug Yasmin is
quite a potent coagulation system activator . . . therefore
highly contributed [to] the development of VTE in this client."
The court found plaintiff's obligations under the terms of
the orders were clear, and that she failed to show why she was
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unable to abide by them. More important, the court found the
expert's report defective in various respects, including the
fact the report was silent on who wrote the report and when.3
Therefore, the court denied plaintiff's motion for
reconsideration, entering an order on May 25, 2016.
II
On appeal, plaintiff asserts the following arguments:
POINT I: DID THE TRIAL COURT ABUSE ITS
DISCRETION AND OVERREACH BY VIOLATING R.
4:37-2(a) AND R. 4:23-2(b) WHEN IT
IMMEDIATELY DISMISSED THE PLAINTIFF'S CASE
IN CHIEF WITH PREJUDICE FOR FAILURE TO
PROVIDE DISCOVERY WHEN THE MANDATED
PROCEDURE IS TO INITIALLY UTILIZE THE
INTERMEDIATE STEP OF DISMISSAL WITHOUT
PREJUDICE?
POINT II: DOES A TRIAL COURT ABUSE ITS
DISCRETION AND COMMIT REVERSIBLE ERROR WHEN
IT MAKES A SUA SPONTE DETERMINATION
CONCERNING THE QUALITY AND SUFFICIENCY OF AN
EXPERT'S REPORT WITHOUT HOLDING A FORMAL
HEARING?
POINT III: DID THE TRIAL COURT ERR IN
FAILING TO REQUIRE IN ITS DISCOVERY ORDER
THAT COUNSEL INITIALLY "MEET AND CONFER"
BEFORE PROCEEDING TO FILE MOTION PAPERS AS
MANDATED BY R. 1:6-2(c)?
3
Plaintiff did not advise who authored the report during oral
argument.
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We address the latter point first. Plaintiff contends Rule
1:6-2(c)4 required defendants to contact her when her expert's
report was not served by February 1, 2016, and to advise the
report was overdue.
A trial court's decision concerning a discovery matter is
reviewed under the abuse of discretion standard. Pomerantz
Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011). Here,
CMO #52 provided that, if plaintiff's expert's report was not
served by the time provided in that order,5 defendants were
permitted to file a motion to dismiss the complaint with
4
Rule 1:6-2(c) states in pertinent part:
Every motion in a civil case . . . involving
any aspect of pretrial discovery . . . shall
be listed for disposition only if
accompanied by a certification stating that
the attorney for the moving party has either
(1) personally conferred orally or has made
a specifically described good faith attempt
to confer orally with the attorney for the
opposing party in order to resolve the
issues raised by the motion by agreement or
consent order and that such effort at
resolution has been unsuccessful, or (2)
advised the attorney for the opposing party
by letter, after the default has occurred,
that continued non-compliance with a
discovery obligation will result in an
appropriate motion being made without
further attempt to resolve the matter.
5
As previously stated, the December 18, 2015 order extended the
deadline by when plaintiff expert's report was due to February
1, 2016.
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prejudice. Defendants were not additionally required to contact
plaintiff pursuant to Rule 1:6-2(c) before filing their motion
to dismiss the complaint.
Second, plaintiff did not file any opposition to
defendants' motion to dismiss her complaint. Third, Rule 4:23-2
(b)(3) provides in relevant part:
(b) If a party fails to obey an order to
provide or permit discovery . . . the court
in which the action is pending may make such
orders in regard to the failure as are just,
and among others the following:
. . . .
(3) An order . . . dismissing the
action or proceeding or any part
thereof with or without prejudice.
. . .
When plaintiff did not submit her expert's report in
compliance with CMO #52 and the December 18, 2015 order,
defendants moved to dismiss the complaint. The court granted
that unopposed motion and entered an order on February 26, 2016,
dismissing the complaint with prejudice. The entry of the
latter order was in accordance with Rule 4:23-2(b)(3).
Defendants were not required to abide by Rule 1:6-2(c) before
filing their dismissal motion.
We are keenly aware the dismissal of plaintiff's complaint
with prejudice is the ultimate sanction, and is a remedy that
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may be imposed only sparingly. Zaccardi v. Becker, 88 N.J. 245,
253 (1982). We perused the record to determine if a less severe
sanction would suffice, but did not succeed. The critical fact
here is plaintiff did not serve defendants with an expert's
report that can be deemed acceptable, and the record reflects
she still has not done so.
Nowhere in the report does the author's name appear, and
the report is unsigned. The author's qualifications are not
revealed. It is not known if the document the plaintiff labeled
as her expert's report is intended to be such by its author.
There is no indication when the report was drafted. The report
does not even include a beginning or ending page.
An expert's report with these kinds of deficiencies cannot
be tolerated. We do not suggest plaintiff's attorney engaged in
any inappropriate conduct, but we cannot help but observe that
the form and content of the report are such that anyone could
have drafted it. It is not beyond the capability of many to
extract information from the various scientific treatises cited
in the report and cobble together the kind of opinions set forth
therein. Providing a signed and dated expert's report revealing
the author's identity at least provides a modicum of
authenticity.
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Although in her brief before us plaintiff provides the name
of the purported author of her expert's report, it is not known
when the author's name was divulged to defendants. Moreover,
there is no indication the author has claimed the subject report
as his own. The content of the report remains the same; it is
devoid of any indication of who wrote the report and when it was
drafted.
The deficiencies in plaintiff's expert's report are
sufficient to have justified the court's decision to deny
plaintiff's motion for reconsideration. We discern no abuse of
discretion.
As for plaintiff's remaining arguments, we addressed the
applicability of Rule 4:23-2(b); the rest are without sufficient
merit to warrant discussion in a written opinion. See R. 2:11-
3(e)(1)(E).
Affirmed.
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