Schottenstein et al v. Capla et al
| MD DOUGLAS SCHOTTENSTEIN, Schottenstein Pain and Neuro, PLLC d/b/a NY Spine Medicine, Douglas Schottenstein and Schottenstein Pain and Neuro, PLLC doing business as NY Spine Medicine |
| Orthogen, FDA Food and Drug Administration, MD Robert M. Califf, Edward L. Capla, Judith J. Capla, Thomas Capla, Yoland Capla, MD Bradley Wasserman, John Doe, Jane Doe & ABC Corp. 1-10, Prof. Peter Wehling, Peter Niedarau, Nina Breidenbach, Orthogen International GmbH, Tomas Capla, Yolanda Capla, Bradley Wasserman and Prof. Dr. Peter Wehling |
| United States Food and Drug Administration and M.D. Robert M. Califf |
| 1:2022cv10883 |
| December 27, 2022 |
| US District Court for the Southern District of New York |
| P Kevin Castel |
| Other Statutory Actions |
| 28 U.S.C. § 1331 Fed. Question |
| Plaintiff |
Docket Report
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This docket was last retrieved on November 13, 2023. A more recent docket listing may be available from PACER.
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| Filing 62 LETTER addressed to Judge P. Kevin Castel from Christopher B. Harwood dated July 7, 2023 re: Pre-Motion Letter re anticipated Motion to Dismiss. Document filed by Nina Breidenbach, Peter Niedarau, Orthogen International GmbH, Peter Wehling..(Harwood, Christopher) |
| Filing 61 NOTICE OF APPEARANCE by Joseph Stern on behalf of Nina Breidenbach, Peter Niedarau, Orthogen International GmbH, Peter Wehling..(Stern, Joseph) |
| Filing 60 NOTICE OF APPEARANCE by Christopher Blake Harwood on behalf of Nina Breidenbach, Peter Niedarau, Orthogen International GmbH, Peter Wehling..(Harwood, Christopher) |
Filing 59
ORDER granting #58 Letter Motion for Extension of Time. Application Granted. (Signed by Judge P. Kevin Castel on 7/5/23) (yv)
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| Filing 58 LETTER MOTION for Extension of Time to respond to Defendants Pre-Motion Letter addressed to Judge P. Kevin Castel from Cory H. Morris dated July 5, 2023. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) |
| Filing 57 LETTER addressed to Judge P. Kevin Castel from Matthew A. Ford dated June 30, 2023 re: Requesting to file a Motion to Dismiss. Document filed by Edward L. Capla..(Ford, Matthew) |
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Filing 56
ORDER: granting #55 Letter Motion for Extension of Time. Application Granted. SO ORDERED. (Signed by Judge P. Kevin Castel on 6/13/2023) (ama)
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| Filing 55 LETTER MOTION for Extension of Time to File Motion to Dismiss addressed to Judge P. Kevin Castel from Matthew A. Ford dated June 13, 2023. Document filed by Edward L. Capla..(Ford, Matthew) |
| Filing 54 NOTICE OF APPEARANCE by Matthew Aaron Ford on behalf of Yolanda Capla..(Ford, Matthew) |
| Filing 53 NOTICE OF APPEARANCE by Matthew Aaron Ford on behalf of Edward L. Capla..(Ford, Matthew) |
| Set/Reset Deadlines: Edward L. Capla answer due 7/11/2023; Yolanda Capla answer due 7/11/2023. (ama) |
| Filing 52 SUMMONS RETURNED EXECUTED. United States Food and Drug Administration served on 6/5/2023, answer due 6/26/2023. Service was made by Mail. Document filed by Douglas Schottenstein; Schottenstein Pain and Neuro, PLLC..(Morris, Cory) |
| Filing 51 SUMMONS RETURNED EXECUTED. Yolanda Capla served on 5/27/2023, answer due 6/20/2023. Service was accepted by Yolanda Capla. Document filed by Douglas Schottenstein; Schottenstein Pain and Neuro, PLLC..(Morris, Cory) |
| Filing 50 SUMMONS RETURNED EXECUTED. Edward L. Capla served on 5/27/2023, answer due 6/20/2023. Service was accepted by Yolanda Capla. Document filed by Douglas Schottenstein; Schottenstein Pain and Neuro, PLLC..(Morris, Cory) |
| Filing 49 ELECTRONIC SUMMONS ISSUED as to Nina Breidenbach..(pc) |
| Filing 48 REQUEST FOR ISSUANCE OF SUMMONS as to Nina Breidenbach, re: #24 Amended Complaint,. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) |
| Filing 47 ELECTRONIC SUMMONS ISSUED as to Peter Niedarau..(gp) |
| Filing 46 ELECTRONIC SUMMONS ISSUED as to Orthogen International GmbH..(gp) |
| Filing 45 ELECTRONIC SUMMONS ISSUED as to Edward L. Capla..(gp) |
| Filing 44 ELECTRONIC SUMMONS ISSUED as to Peter Wehling..(gp) |
| Filing 43 ELECTRONIC SUMMONS ISSUED as to United States Food and Drug Administration..(gp) |
| Filing 42 ELECTRONIC SUMMONS ISSUED as to Yolanda Capla..(gp) |
| Filing 41 REQUEST FOR ISSUANCE OF SUMMONS as to Yolanda Capla, re: #24 Amended Complaint,. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) |
| Filing 40 REQUEST FOR ISSUANCE OF SUMMONS as to United States Food and Drug Administration, re: #24 Amended Complaint,. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) |
| Filing 39 REQUEST FOR ISSUANCE OF SUMMONS as to Prof. Dr. Peter Wehling, re: #24 Amended Complaint,. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) |
| Filing 38 REQUEST FOR ISSUANCE OF SUMMONS as to Edward L. Capla, re: #24 Amended Complaint,. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) |
| Filing 37 REQUEST FOR ISSUANCE OF SUMMONS as to Peter Niederau, re: #24 Amended Complaint,. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) |
| Filing 36 REQUEST FOR ISSUANCE OF SUMMONS as to ORTHOGEN INTERNATIONAL GmbH, re: #24 Amended Complaint,. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) |
| ***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Cory Morris to RE-FILE Document No. #34 Request for Issuance of Summons, #32 Request for Issuance of Summons, #33 Request for Issuance of Summons, #31 Request for Issuance of Summons, #35 Request for Issuance of Summons, #29 Request for Issuance of Summons, #30 Request for Issuance of Summons,. The filing is deficient for the following reason(s): the PDF attached to the docket entry for the issuance of summons is not correct; party names on the PDF case caption must be listed as it appears on the pleading caption;. Re-file the document using the event type Request for Issuance of Summons found under the event list Service of Process - select the correct filer/filers - and attach the correct summons form PDF. (jgo) |
| Filing 35 FILING ERROR - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to Nina Breidenbach, re: #24 Amended Complaint,. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) Modified on 5/23/2023 (jgo). |
| Filing 34 FILING ERROR - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to United States Food and Drug Administration, re: #24 Amended Complaint,. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) Modified on 5/23/2023 (jgo). |
| Filing 33 FILING ERROR - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to Yolanda Capla, re: #24 Amended Complaint,. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) Modified on 5/23/2023 (jgo). |
| Filing 32 FILING ERROR - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to Edward L. Capla, re: #24 Amended Complaint,. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) Modified on 5/23/2023 (jgo). |
| Filing 31 FILING ERROR - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to Dr. Peter Wehling, re: #24 Amended Complaint,. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) Modified on 5/23/2023 (jgo). |
| Filing 30 FILING ERROR - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to Peter Niederau, re: #24 Amended Complaint,. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) Modified on 5/23/2023 (jgo). |
| Filing 29 FILING ERROR - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to Orthogen International GmbH, re: #24 Amended Complaint,. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) Modified on 5/23/2023 (jgo). |
| Filing 28 LETTER addressed to Judge P. Kevin Castel from Richard B. Rosenthal dated 05/20/2023 re: response to the letter dated May 19, 2023 from Christopher B. Harwood [Document 27]. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Rosenthal, Richard) |
| Filing 27 LETTER addressed to Judge P. Kevin Castel from Christopher B. Harwood dated May 19, 2023 re: Responding to Plaintiffs' May 19, 2023 Letter (DKT. 26). Document filed by Orthogen International GmbH. (Attachments: #1 Exhibit A).(Harwood, Christopher) |
| Filing 26 LETTER addressed to Judge P. Kevin Castel from Richard Rosenthal dated May 19, 2023 re: ex parte Section 1782 Petition. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Rosenthal, Richard) |
| Filing 25 LETTER addressed to Judge P. Kevin Castel from Christopher B. Harwood dated May 17, 2023 re: Letter Responding to Letter at DKT No. 21. Document filed by Orthogen International GmbH..(Harwood, Christopher) |
| Filing 24 AMENDED COMPLAINT amending #20 Amended Complaint,, against Nina Breidenbach, Robert M. Califf, Edward L. Capla, Yolanda Capla, John Doe, Jane Doe & ABC Corp. 1-10, Peter Niedarau, Orthogen International GmbH, United States Food and Drug Administration, Peter Wehling with JURY DEMAND.Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC. Related document: #20 Amended Complaint,,..(Morris, Cory) |
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Filing 23
ORDER: granting #22 Letter Motion for Leave to File Document. The Court remains dubious about the existence of either federal question or diversity jurisdiction at the time that this action was commenced. No defendant has yet appeared in this action. Without ruling on the existence of subject matter jurisdiction, the Court will grant the motion to amend and await briefing from the parties. Plaintiffs' motion for leave to amend is GRANTED. (ECF 22.). SO ORDERED. (Signed by Judge P. Kevin Castel on 5/16/2023) (ama)
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| Filing 22 LETTER MOTION for Leave to File Change the Caption on the Electronic Case Filing addressed to Judge P. Kevin Castel from Cory Morris dated May 5, 2023. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC. (Attachments: #1 Exhibit Amended Verified Complaint).(Morris, Cory) |
| Filing 21 LETTER addressed to Judge P. Kevin Castel from Richard Bruce Rosenthal, Esq. dated 05/10/2023 re: Courtesy copy of letter to Judge Broderick regarding related case to this matter not disclosed to Court. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Rosenthal, Richard) |
| Filing 20 FILING ERROR DEFICIENT PLEADING - PDF ERROR - AMENDED COMPLAINT amending #1 Complaint, against Nina Breidenbach, Robert M. Califf, Edward L. Capla, Yolanda Capla, John Doe, Jane Doe & ABC Corp. 1-10, Peter Niedarau, Orthogen International GmbH, United States Food and Drug Administration, Peter Wehling with JURY DEMAND.Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC. Related document: #1 Complaint,. (Attachments: #1 Exhibit Amended Complaint).(Morris, Cory) Modified on 5/5/2023 (jgo). |
| Filing 19 AFFIDAVIT OF SERVICE of Court Order with Supporting Documents served on Yolanda Capla on January 12, 2023. Service was accepted by Yolanda Capla. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) |
| Filing 18 AFFIDAVIT OF SERVICE of Court Order with Supporting Documents served on Edward L. Capla on January 12, 2023. Service was accepted by Yolanda Capla. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) |
| Filing 17 AFFIDAVIT OF SERVICE of Court Order with Supporting Documents served on US FDA on 01/09/2023. Service was made by Mail. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) |
| Filing 16 AFFIDAVIT OF SERVICE of Court Order with Supporting Documents served on Bradley Wasserman, MD on January 4, 2023. Service was accepted by Christina smith - secretary for Bradley Wasserman, MD. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) |
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Filing 15
ORDER: denying #9 Letter Motion for Conference re: #9 LETTER MOTION for Conference re: #8 Memo Endorsement. #7 Letter, #6 Order. addressed to Judge P. Kevin Castel from Richard B. Rosenthal dated 01/04.2023. The Court will treat the January 4 letter as a request for an adjournment of the time for compliance with paragraphs 1 and 2 of the above quoted Order of December 28, 2023 and as such it is granted. Plaintiff shall file a memorandum addressing paragraphs 1 and 2 simultaneous with any renewed application for an order to show cause. The application for a conference is denied. SO ORDERED. (Signed by Judge P. Kevin Castel on 1/04/2023) (ama)
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| Filing 14 AFFIDAVIT OF SERVICE of Court Order with Supporting Documents served on Nina Breidenbach on 1/4/2023. Service was accepted by Nina Breidenbach. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) |
| Filing 13 AFFIDAVIT OF SERVICE of Court Order with Supporting Documents served on Peter Wehling on 01/04/23. Service was accepted by Peter Niederau, Managing Director. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) |
| Filing 12 AFFIDAVIT OF SERVICE of Court Order with Supporting Documents served on Peter Niederau on 1-4-2023. Service was accepted by Peter Niederau, Managing Director. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) |
| Filing 11 AFFIDAVIT OF SERVICE of Court Order with Supporting Documents served on Orthogen International on 1-4-2023. Service was accepted by Pet. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) |
| Filing 10 AFFIDAVIT OF SERVICE of Court Order with Supporting Documents served on Peter Niederau on 01/04/23. Service was accepted by Peter Niederau, Managing Director. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) |
| Filing 9 LETTER MOTION for Conference re: #8 Memo Endorsement,,, Set Deadlines/Hearings,, #7 Letter, #6 Order,,, addressed to Judge P. Kevin Castel from Richard B. Rosenthal dated 01/04.2023. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Rosenthal, Richard) |
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Filing 8
MEMO ENDORSEMENT: on re: #7 Letter filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC. ENDORSEMENT: The Court has not withdrawn items (1) through (3) of its December 28 Order. Based upon the statements in the December 30 letter, they are not moot. At present plaintiff is in violation of item (3). Plaintiff shall FORTHWITH bring itself in compliance with item (3) and file an affidavit of service. Failure to do so is punishable by contempt for violation of the Rule 28 Order and this Order. SO ORDERED. (Signed by Judge P. Kevin Castel on 1/03/2023) (ama)
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| Filing 7 LETTER addressed to Judge P. Kevin Castel from Cory H. Morris, Esq. dated December 30, 2022 re: proposed Order to Show Cause and Amendment of the Pleadings. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC..(Morris, Cory) |
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Filing 6
ORDER: The Court declines to issue the proposed Order to Show Cause because a review of the Complaint demonstrates, at least preliminarily, that the Court lacks subject matter jurisdiction. If plaintiff wishes to continue to pursue injunctive relief, he shall (1) submit a memorandum of law by January 6, 2023 demonstrating that the Court has subject matter jurisdiction; (2) demonstrate why the Court ought to set a hearing on a preliminary injunction motion relating to a license terminated on March 24, 2020 and a medical procedure that has been in use since at least 2012; and (3) serve a copy of this Order and the proposed order to show cause and all papers on which it is based, including the complaint, on all defendants by electronic means and overnight courier by 3 p.m. on December 29, 202. And as set forth herein. SO ORDERED. (Signed by Judge P. Kevin Castel on 12/28/2022) (ama)
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| Filing 5 CIVIL COVER SHEET filed..(Morris, Cory) |
| Filing 4 PROPOSED ORDER TO SHOW CAUSE WITH EMERGENCY RELIEF. Document filed by Douglas Schottenstein, Schottenstein Pain and Neuro, PLLC. (Attachments: #1 Affidavit Affidavit of Dr. Schottenstein, #2 Exhibit Exhibit 1 June, 2014 Regenokine License Agreement, #3 Exhibit Exhibit 2 July, 2014 Side Letter Agreement, #4 Exhibit Exhibit 3 March 24, 2020 Termination Letter, #5 Exhibit Exhibit 4 August 3, 2022 Niederau Letter, #6 Exhibit Exhibit 5 Capla Text Message, #7 Exhibit Exhibit 6 Donner August 3, 2022 Letter, #8 Exhibit Exhibit 7 Klaus Wehling August 8, 2022 E-Mail, #9 Exhibit Exhibit 8 Klaus Wehling November 2, 2022 E-Mail, #10 Exhibit Exhibit 9 Klaus Wehling November 7, 2022 E-Mail, #11 Exhibit Exhibit 10 Schottenstein November 10, 2022 E-Mail, #12 Exhibit Exhibit 11 Krueger November 28, 2022 Letter, #13 Exhibit Exhibit 12 Niederau E-Mail Recommending Plaintiffs' Patient to Wasserman, #14 Exhibit Litigation Hold Notice, #15 Civil Cover Sheet Civil Cover Sheet, #16 Supplement Memorandum of Law, #17 Exhibit Complaint, #18 Exhibit Complaint - Client Verification, #19 Supplement Rule 65(b) Notice).(Morris, Cory) Proposed Order to Show Cause to be reviewed by Clerk's Office staff. |
| Case Designated ECF. (pc) |
| Magistrate Judge Jennifer Willis is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: #https://nysd.uscourts.gov/sites/default/files/2018-06/AO-3.pdf. (pc) |
| CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge P. Kevin Castel. Please download and review the Individual Practices of the assigned District Judge, located at #https://nysd.uscourts.gov/judges/district-judges. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at #https://nysd.uscourts.gov/rules/ecf-related-instructions..(pc) |
| ***NOTICE TO COURT REGARDING PROPOSED ORDER TO SHOW CAUSE WITH EMERGENCY RELIEF. Document No. #4 Proposed Order to Show Cause With Emergency Relief was reviewed and approved as to form. (nd) |
| ***NOTICE TO ATTORNEY REGARDING DEFICIENT CIVIL COVER SHEET. Notice to attorney Richard Bruce Rosenthal to RE-FILE Document No. #2 Civil Cover Sheet. The filing is deficient for the following reason(s): civil cover sheet was not signed. (pc) |
| ***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Richard Bruce Rosenthal. The party information for the following party/parties has been modified: MD DOUGLAS SCHOTTENSTEIN, FDA Food and Drug Administration, MD Robert M. Califf, Edward L. Capla, Judith J. Capla, Thomas Capla, Yoland Capla, MD Bradley Wasserman, Prof. Peter Wehling, Schottenstein Pain and Neuro, PLLC d/b/a NY Spine Medicine. The information for the party/parties has been modified for the following reason/reasons: party name contained a typographical error; party name was entered in all caps; party role was entered incorrectly; party text was omitted; alias party name was omitted;. (pc) |
| ***NOTICE TO ATTORNEY REGARDING CIVIL. CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Richard Bruce Rosenthal. The following case opening statistical information was erroneously selected/entered: Cause of Action code 21:332; Arbitration code v (Voluntary); County code New York;. The following correction(s) have been made to your case entry: the Cause of Action code has been modified to 28:1331; the Arbitration code has been deleted; the County code has been modified to Suffolk;. (pc) |
| ***NOTICE TO ATTORNEY REGARDING REMOVAL OF PARTY. Notice to attorney Richard Bruce Rosenthal. The following party/parties has been removed from this case: Orthogen. The party was added to the case in error. (pc) |
| Filing 3 NOTICE OF APPEARANCE by Cory Morris on behalf of DOUGLAS SCHOTTENSTEIN, Schottenstein Pain and Neuro, PLLC d/b/a NY Spine Medicine..(Morris, Cory) |
| Filing 2 FILING ERROR - PDF ERROR - CIVIL COVER SHEET filed..(Rosenthal, Richard) Modified on 12/28/2022 (pc). |
| Filing 1 COMPLAINT against Nina Breidenbach, Robert M. Califf, Edward L. Capla, Judith J. Capla, Thomas Capla, Yoland Capla, FDA Food and Drug Administration, John Doe, Jane Doe & ABC Corp. 1-10, Peter Niedarau, Orthogen, Orthogen International GmbH, Bradley Wasserman, Peter Wehling. (Filing Fee $ 402.00, Receipt Number ANYSDC-27133190)Document filed by DOUGLAS SCHOTTENSTEIN, Schottenstein Pain and Neuro, PLLC d/b/a NY Spine Medicine..(Rosenthal, Richard) |
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