Alessi v. DePuy Orthopaedics Inc et al
| Elena A. Alessi and Elena Muscarella |
| DePuy Orthopaedics, Inc., Depuy Products, Inc., DePuy International Limited, Johnson & Johnson Services, Inc. and Does 1-10 |
| Special Master |
| 1:2022cv01416 |
| December 30, 2022 |
| US District Court for the Northern District of New York |
| Christian F Hummel |
| David N Hurd |
| Thomas J McAvoy |
| Personal Injury: Health Care/Pharmaceutical Personal Injury Product Liability |
| 28 U.S.C. § 1332 Diversity-Product Liability |
| Both |
Docket Report
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Filing 48
TEXT ORDER re #26 MOTION in Limine (Omnibus), #21 (Document Restricted) MOTION FOR SUMMARY JUDGMENT ON PREEMPTION GROUNDS (Sealed pursuant to order dated 6/20/2012), and #20 MOTION TO EXCLUDE THE OPINIONS OF CERTAIN PLAINTIFFS EXPERTS filed by Johnson & Johnson Services, Inc., Depuy Products, Inc., DePuy Orthopaedics, Inc.: The Clerk is directed to restore these pending motions to the docket, as they were filed prior to the case being transferred to the NYND. As was directed during the 2/22/23 court conference, Plaintiff is directed to respond the the motions, if not already responded to, on or by 4/22/2023. Authorized by Magistrate Judge Christian F. Hummel on 2/22/2023. (tab)
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| Text Minute Entry for proceedings held before Magistrate Judge Christian F. Hummel: Status Conference held on 2/22/2023 by TEAMS video. Appearances by Kenneth Fromson, Esq. and Michele Haber, Esq., for plaintiff; James Murdica, Esq. and Kaitlyn Stone, Esq. for Defendants. Counsel advise the Court that this case will likely proceed through Motion and Trial. Plaintiff requests 8 weeks (April 22, 2023) to go through the pending motions and to respond to any that have not yet been responded to. It appears, from the docket, that Plaintiff has responded to The Motion for Summary Judgment [Dkt. no.21] and the Motion to Exclude [Dkt. no.20]. The Motion in Limine, at [Dkt. no.26], has not been responded to. All pending motions in this case are returnable before District Court Judge, Honorable David N. Hurd. (Court Reporter Ruth Lynch) [9:30am-9:42am] (tab) |
| Filing 47 NOTICE of Change in Conference: The Rule 16 Initial Conference scheduled for 2/22/2023 at 9:30am before Magistrate Judge Christian F. Hummel and the deadline to submit a proposed Civil Case Management Plan and exchange Mandatory Disclosures are CANCELLED. Instead, the Court has converted this scheduled conference to a STATUS CONFERENCE. The conference remains set for Wednesday, 2/22/2023 @ 9:30 AM before Magistrate Judge Christian F. Hummel. This conference will be conducted remotely, by Microsoft TEAMS video and the court will provide a TEAMS connection link to all participants, prior to the conference date.(tab) |
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Filing 46
TEXT ORDER denying RELATED CASE Assignment. Upon review, David N. Hurd, USDJ has determined that this matter is not related to case 1:22-cv-1417 FJS /CFH, Chesky v. DePuy Orthopaedics Inc. et al. So Ordered by Judge David N. Hurd on 2/9/2023. (ptm)
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| Filing 45 NOTICE of Appearance by James F. Murdica on behalf of DePuy International Limited, DePuy Orthopaedics, Inc., Depuy Products, Inc., Johnson & Johnson Services, Inc. (Murdica, James) |
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Filing 44
TEXT ORDER OF RECUSAL. Senior Judge Thomas J. McAvoy recused. Case reassigned to Judge David N. Hurd for all further proceedings. Authorized by Senior Judge Thomas J. McAvoy on 1/9/2023. (amt)
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| TEXT Notice pursuant to General Order 12 of Potential Related Case(s), submitted to District Judge for review and determination. Potential Related cases: 1:22-cv-1417. (amt) |
| Filing 43 G.O. 25 FILING ORDER ISSUED: Initial In-Person Conference set for 2/22/2023 at 9:30 AM in Albany before Magistrate Judge Christian F. Hummel. Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 2/15/2023. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) (jmb) {Copy served upon all counsel by email} |
| Filing 42 NOTICE OF ADMISSION REQUIREMENT as to Party Defendants'; Attorney Terri Bruksch, Email address is terri.bruksch@btlaw.com. Phone number is 317-236-1313. Admissions due by 1/19/2023. {Copy served upon Attorney Bruksch by email}(jmb) |
| Filing 41 NOTICE OF ADMISSION REQUIREMENT as to Party Defendants'; Attorney Seth Michael Roberts, Email address is sroberts@lockelord.com. Phone number is 214-740-8453. Admissions due by 1/19/2023. {Copy served upon Attorney Roberts by email}(jmb) |
| Filing 40 NOTICE OF ADMISSION REQUIREMENT as to Party Defendants'; Attorney John H. Beisner, Email address is John.Beisner@skadden.com. Phone number is 202-371-7209. Admissions due by 1/19/2023. {Copy served upon Attorney Beisner by email}(jmb) |
| Filing 39 NOTICE OF ADMISSION REQUIREMENT as to Party Defendants'; Attorney Jessica D. Miller, Email address is Jessica.Miller@skadden.com. Phone number is 202-371-7850. Admissions due by 1/19/2023. {Copy served upon Attorney Miller by email} (jmb) |
| Filing 38 NOTICE OF ADMISSION REQUIREMENT as to Party Defendants'; Attorney Michael V. Powell, Email address is mpowell@lockelord.com. Phone number is 214-740-8520. Admissions due by 1/19/2023. {Copy served upon Attorney Powell by email} (jmb) |
| Filing 37 NOTICE OF ADMISSION REQUIREMENT: as to Party Plaintiff; Attorney Mary Ellen Wright, Email address is mwright@lawampm.com. Phone number is 845-562-0203. Admissions due by 1/19/2023. {Copy served upon Attorney Wright by email} (jmb) |
| Filing 36 Case transferred in from District of Texas Northern; Case Number 3:13-cv-04927 electronically transferred when case opened. (jmb) |
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Filing 35
ORDER TRANSFERRING CASES PURSUANT TO 28 U.S.C. 1404 - Pursuant to Case Management Order #1 [Dkt. 20] and 28 U.S.C 1404, this Court transfers the identified cases to the appropriate United States District Court as identified above. (Ordered by Judge Ed Kinkeade on 12/30/2022) (chmb) [Transferred from Texas Northern on 1/3/2023.]
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| Filing 33 NOTICE of the Special Master's rulings. After reviewing the pleadings on file including the parties' joint status reports [Dkts. 17, 27] and conducting a telephonic hearing on December 29, 2022 [Dkt. 31], the special master recommends transferring this case for further proceedings because this case is in the process of completing discovery and ready to be set for trial; consequently, the case would no longer benefit from inclusion in the coordinated or consolidated pretrial proceedings before this Court. Further, the special master recommends transferring the case to the Northern District of New York pursuant to the recommendation in the parties' joint status report [Dkt. 24]. The following motions are currently pending in this case: Motion to Exclude [Dkt. 20]; Motion for Summary Judgment [Dkt. 21]; and Motion in Limine [Dkt. 26]. Because ruling on these motions will directly impact the claims, defenses, and presentation and admissibility of evidence at trial, the special master recommends this Court defer ruling on these motions to permit consideration by the transferee court which will have responsibility for putting the case on trial. filed by Special Master (Stanton, James) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 31 Administrative Record consisting of REPORTER'S TRANSCRIPT OF TELEPHONIC STATUS CONFERENCE HAD ON THURSDAY, DECEMBER 29, 2022 filed by Special Master. (Stanton, James) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 30 NOTICE of the Special Master's rulings. By January 3, 2023, the parties are directed to file a joint status report with a list of any filing a party desires to be included in this individual case from the docket of In re: Depuy Orthopaedics 3:11-MD-2244-K pending in the United States District Court for the Northern District of Texas. The joint status report shall provide a single list of requested filings in chronological order identified by docket number and document title. filed by Special Master (Stanton, James) [Transferred from Texas Northern on 1/3/2023.] |
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Filing 29
ELECTRONIC ORDER - ]. On December 2, 2022, the Special Master recommended denial of these motions and no objections have been filed, therefore, Defendant's [Dkt. 11] Motion to Dismiss and Plaintiff's [Dkt. 12] Motion to Extend Time are both DENIED. (Ordered by Judge Ed Kinkeade on 12/28/2022) (chmb) [Transferred from Texas Northern on 1/3/2023.]
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Filing 28
ELECTRONIC ORDER - Before the Court is Plaintiff's #13 Motion to Substitute the Executor of Plaintiff Decedent's Estate as Party in Interest Pursuant to Rule 25(a)(1). The Motion is GRANTED. Plaintiff-decedents daughter Elena A. Alessi in her capacity as Executor of plaintiff-decedents estate is substituted in place of plaintiff-decedent in this action. (Ordered by Judge Ed Kinkeade on 12/28/2022) (chmb) [Transferred from Texas Northern on 1/3/2023.]
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| Filing 27 Joint STATUS REPORT filed by DePuy International Limited, DePuy Orthopaedics Inc, DePuy Products Inc, Johnson & Johnson Services Inc. (Bruksch, Terri) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 26 MOTION in Limine (Omnibus) filed by DePuy Orthopaedics Inc, DePuy Products Inc, Johnson & Johnson Services Inc with Brief/Memorandum in Support. (Attachments: #1 Proposed Order) (Beisner, John) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 25 NOTICE of hearing. On December 2, 2022, the parties were directed to file a joint status report by December 16, 2022. By 5:00 p.m. Central on December 27, 2022, the parties are directed to file an updated joint status report. The parties are directed to attend a telephonic status conference on December 29, 2022 at 8:15 a.m. Central using the following information: Call in number 800.977.8002; Passcode 8325765#. filed by Special Master (Stanton, James) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 24 Joint STATUS REPORT filed by DePuy International Limited, DePuy Orthopaedics Inc, DePuy Products Inc, Johnson & Johnson Services Inc. (Bruksch, Terri) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 23 NOTICE of amendment to correct technical error in the original docket entry. The original complaint [Dkt. 1] was direct-filed in the Northern District of Texas pursuant to this Court's Case Management Order #1 in MDL 2244 [Dkt. 20]. By December 22, 2022, the parties are directed to file a joint status report with the Court providing their recommendations on a court of appropriate jurisdiction for trial pursuant to 28 U.S.C. 1404. [Dkt. 20, *paragraph* 17]. filed by Special Master (Stanton, James) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 22 NOTICE of the special mater's rulings. The original complaint [Dkt. 1] was direct-filed in the Northern District of Texas pursuant to this Court's Case Management Order #1 in MDL 2244 [Dkt. 20]. By December 22, 2022, the parties are directed to file a joint status report with the Court providing their recommendations on a court of appropriate jurisdiction for trial pursuant to 28 U.S.C. 1404. [Dkt. 20, 17]. filed by Special Master (Stanton, James) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 21 (Document Restricted) MOTION FOR SUMMARY JUDGMENT ON PREEMPTION GROUNDS (Sealed pursuant to order dated 6/20/2012) filed by DePuy Orthopaedics Inc, DePuy Products Inc, Johnson & Johnson Services Inc (Attachments: #1 Additional Page(s) Memorandum in Support, #2 Exhibit(s) Appendix of Exhibits, #3 Proposed Order) (Beisner, John) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 20 MOTION TO EXCLUDE THE OPINIONS OF CERTAIN PLAINTIFFS EXPERTS filed by DePuy Orthopaedics Inc, DePuy Products Inc, Johnson & Johnson Services Inc with Brief/Memorandum in Support. (Attachments: #1 Proposed Order)Attorney John H Beisner added to party DePuy Orthopaedics Inc(pty:dft), Attorney John H Beisner added to party DePuy Products Inc(pty:dft), Attorney John H Beisner added to party Johnson & Johnson Services Inc(pty:dft) (Beisner, John) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 19 ANSWER to #1 Complaint,,,, with Jury Demand filed by DePuy International Limited, DePuy Products Inc, Johnson & Johnson Services Inc. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms and Instructions found at www.txnd.uscourts.gov, or by clicking here: # Attorney Information - Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Bruksch, Terri) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 18 ANSWER to #1 Complaint,,,, with Jury Demand filed by DePuy Orthopaedics Inc. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms and Instructions found at www.txnd.uscourts.gov, or by clicking here: # Attorney Information - Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Bruksch, Terri) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 17 Joint STATUS REPORT filed by DePuy International Limited, DePuy Orthopaedics Inc, DePuy Products Inc, Johnson & Johnson Services Inc. (Bruksch, Terri) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 16 NOTICE of the Special Master's rulings: Pursuant to the special master's report of December 1, 2022 [Dkt. 15], and the Court's Scheduling Order of September 16, 2022 [Dkt. 8], the parties are directed to confer and file, by December 9, 2022, a joint status report regarding any matters that require the Court's attention to comply with the Court's Scheduling Order. The Motion to Dismiss [Dkt. 11] should be DENIED, and the Motion to Substitute Party [Dkt. 13] should be GRANTED; further, the Motion to Amend Scheduling Order [Dkt. 12] should be DENIED. filed by Special Master (Stanton, James) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 15 SPECIAL MASTER'S STATUS REPORT - Presently there are eighty-two cases remaining in this MDL. Sixty-six of the remaining cases are on a scheduling order where all pre-trial filings will be complete by December 30, 2022; twelve of the cases are on a scheduling order with pre-trial filings complete by March 3, 2023; and, four cases are subject to dismissal if service is not quickly accomplished. Although over half of the remaining cases in the MDL have efficiently moved forward on the scheduling order, a select few cases have required significant attention through motions practice and some parties stated inability to meet the Court's deadlines. Many of the issues raised in the motions were resolved through hearings or through agreement. In the previous 45 days, I have conducted numerous formal and informal status conferences. The transcripts and docket entry from those conferences are attached and are being docketed in all cases remaining in the MDL because they could affect outstanding legal and factual disputes among the parties in any of the cases. (Attachments: #1 10-18-2022 Conference Transcript, #2 10-19-2022 Conference Transcript, #3 10-23-2022 Conference Transcript, #4 10-28-2022 Conference Transcript, #5 Docket Entry 1283, #6 11-16-2022 Conference Transcript) (Stanton, James M.) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 14 RESPONSE AND OBJECTION filed by Elena Muscarella re: #11 MOTION to Dismiss Plaintiff's Complaint (Attachments: #1 Exhibit(s) Letters Testamentary) (Fromson, Kenneth) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 13 MOTION to Substitute Party filed by Elena Muscarella (Attachments: #1 Exhibit(s) Letters Testamentary, #2 Exhibit(s) Proposed Order) (Fromson, Kenneth) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 12 MOTION to Extend Time discovery deadlines filed by Elena Muscarella (Attachments: #1 Exhibit(s) Scheduling Order, #2 Exhibit(s) Proposed Order) (Fromson, Kenneth) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 11 MOTION to Dismiss Plaintiff's Complaint filed by DePuy International Limited, DePuy Orthopaedics Inc, DePuy Products Inc, Johnson & Johnson Services Inc with Brief/Memorandum in Support. (Attachments: #1 Exhibit(s) A - Obituary, #2 Proposed Order) (Bruksch, Terri) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 10 STATUS REPORT Plaintiff's Response and Objection to Defendants' Status Report filed by Elena Muscarella. (Fromson, Kenneth) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 9 STATUS REPORT filed by DePuy International Limited, DePuy Orthopaedics Inc, DePuy Products Inc, Johnson & Johnson Company, Johnson & Johnson Services Inc. (Bruksch, Terri) [Transferred from Texas Northern on 1/3/2023.] |
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Filing 8
SCHEDULING ORDER: Pursuant to Federal Rule of Civil Procedure 16(b), the Court enters this Scheduling Order: 1. Each Plaintiff shall amend pleadings by September 30, 2022; Each Defendantshall amend pleadings by October 14, 2022. 2. Each Plaintiff shall provide expert designations, materials, and reports required by the Federal Rules of Civil Procedure by October 28, 2022; the deposition of each Plaintiff expert shall be conducted between November 7, 2022, and November 18, 2022. 3. Each Defendant shall provide expert designations, materials, and reports required by the Federal Rules of Civil Procedure by November 4, 2002; the deposition of each Defendant expert shall be conducted between November 21, 2022 and December 2, 2022. 4. All discovery shall be completed by December 9, 2022. 5. All dispositive motions or Daubert motions shall be filed by December 16, 2022; and any response to the motions shall be filed by December 30, 2022. 6. The parties shall file motions in limine as well as any motions seeking to limit the testimony of any witness at trial for any reason by December 21, 2022. (Ordered by Judge Ed Kinkeade on 9/16/2022) (chmb) [Transferred from Texas Northern on 1/3/2023.]
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| Filing 7 STATUS REPORT (Defendants' Report) filed by DePuy International Limited, DePuy Orthopaedics Inc, DePuy Products Inc, Johnson & Johnson Company, Johnson & Johnson Services Inc. (Bruksch, Terri) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 6 STATUS REPORT (Defendants' Report) filed by DePuy International Limited, DePuy Orthopaedics Inc, DePuy Products Inc, Johnson & Johnson Company, Johnson & Johnson Services Inc. (Bruksch, Terri) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 5 STATUS REPORT (Defendants' Report) filed by DePuy International Limited, DePuy Orthopaedics Inc, DePuy Products Inc, Johnson & Johnson Company, Johnson & Johnson Services Inc. (Bruksch, Terri) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 4 NOTICE of Attorney Appearance by Kenneth B Fromson on behalf of Elena Muscarella. (Filer confirms contact info in ECF is current.) (Fromson, Kenneth) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 3 Notice of filing Case Management OrdersThe following orders have been filed in 3:11-md-2244 and are available by using the links provided below.#CASE MANAGEMENT ORDER NO. #10 # PINNACLE PLAINTIFF PROFILE FORM# CASE MANAGEMENT ORDER NO. #11 # DEFENDANTS' FACT SHEET. (cea) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 2 WAIVER OF SERVICE Returned Executed as to All Defendants. (Attachments: #1 Additional Page(s), #2 Additional Page(s), #3 Additional Page(s), #4 Additional Page(s)) (Wright, Mary) [Transferred from Texas Northern on 1/3/2023.] |
| Filing 1 COMPLAINT WITH JURY DEMAND against All Defendants filed by Elena Muscarella. (Filing fee $400; Receipt number 0539-5750074) Summons(es) not requested at this time. Filer indicates this case is related to MDL Case No. 2244, In re: DePuy Orthopedics, Inc., Pinnacle Hip Implant Products Liability Litigation, pending before Judge Ed Kinkeade. In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the # Judges Copy Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas should seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: # Attorney Information - Bar Membership (Attachments: #1 Cover Sheet, #2 Notice of Interested Persons, #3 Notice of Related Case) (Wright, Mary) [Transferred from Texas Northern on 1/3/2023.] |
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