Opinion
No. 98 Civ. 4526 (RJH) (KNF).
November 22, 2004
Memorandum Opinion and Order
As the Court has noted in two prior opinions addressing plaintiffs' objections to orders of the Honorable Kevin N. Fox, United States Magistrate Judge for the Southern District of New York, see Order of February 20, 2004, and Order of April 27, 2004, this case, a latex glove product liability action, was one of many cases consolidated for pre-trial discovery before the Eastern District of Pennsylvania by the Judicial Panel for Multidistrict Litigation ("MDL"). It was later remanded back to the Southern District of New York pursuant to another MDL order, dated February 23, 2003. Judge Fox has managed this matter pursuant to a referral order issued on July 22, 2003.
Plaintiffs object to parts of Judge Fox's order, dated May 27, 2004, which, inter alia, (1) preclude expert testimony from Dr. Gary Stadtmauer, (2) allow defendant Shen Wei to present evidence at trial that it was not a manufacturer of latex gloves, and (3) preclude Dr. Donald Beezhold from providing opinion testimony. ( See Pl.'s Partial Obj. to Mag.'s Rulings and Order of May 27, 2004 (hereinafter "Obj.").) By letter dated June 3, 2004, plaintiffs also ask the Court to grant them leave, pursuant to 28 U.S.C. 1292(b), to appeal this Court's order of February 20, 2004, declining to modify Judge Fox's order of January 16, 2004. ( See Letter from Benjamin to Holwell, J., June 3, 2004.) The Court addresses each of these issues in turn.
Reviewing first Judge Fox's decision to preclude testimony from Dr. Stadtmauer, the Court notes that a district court reviews orders issued by a magistrate judge regarding nondispositive pretrial matters under the "clearly erroneous or contrary to law" standard. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). A matter is nondispositive if it "does not dispose of the litigation". Nikkal Indus., Ltd. v. Salton, Inc., 689 F.Supp. 187, 189 (S.D.N.Y. 1988). Matters concerning discovery generally are considered nondispositive, see Hoar, 900 F.2d at 525, as are decisions to admit or exclude expert testimony. See Rmed Int'l, Inc. v. Sloan's Supermarkets, Inc., No. 94 Civ. 5587 (PKL), 2000 WL 420548, at *2 n. 1 (S.D.N.Y. Apr. 18, 2000).
"A finding is `clearly erroneous' when, although there is evidence to support it, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed." Nikkal, 689 F.Supp. at 189 (citations omitted). "It is well-settled that a magistrate judge's resolution of a nondispositive matter should be afforded substantial deference and may be overturned only if found to have been an abuse of discretion." Rmed, 2000 WL 420548, at *2.
The testimony of Dr. Stadtmauer has previously been the subject of several orders by Judge Fox and by this Court. (See Orders of January 16, 2004 (Fox), January 22, 2004 (Fox), and April 9, 2004 (Fox), February 20, 2004 (Holwell).) Ultimately, Judge Fox concluded that Dr. Stadtmauer's testimony "is not case specific to [plaintiff] Donna Pavlou, as there was no individual assessment done of the plaintiff' and, thus, is barred because it is generic. (Order of May 27, 2004, ¶ 2.) Having reviewed the entire record, this Court cannot conclude that the May 27 order on this issue was clearly erroneous. Given that Dr. Stadtmauer did not perform an assessment of plaintiff Donna Pavlou, there is ample ground for Judge Fox to conclude that the testimony is generic and not case specific. Therefore, the Court declines to disturb Judge Fox's decision here.
The Court similarly declines to modify Judge Fox's decision allowing defendant Shen Wei to present evidence that it was not a latex glove manufacturer. Plaintiffs argue that their "limited evidence" demonstrates that defendant was in fact engaged in manufacturing latex gloves. ( See Obj. ¶ 11.) However, the Court cannot conclude that plaintiffs' limited evidence is dispositive on this point such that defendant should be precluded from presenting evidence to the contrary.
Turning to plaintiffs' objections to the preclusion of Dr. Beezhold, plaintiffs argue that Dr. Beezhold is a percipient fact witness and should be allowed to offer opinion testimony as to what he perceived, based on his training, skill, and experience, independent of this litigation. ( See Obj. ¶¶ 15-17.) However, plaintiffs previously have stated that Dr. Beezhold will offer testimony "opin[ing that] individuals with latex allergy cannot work in an environment that is not latex-free because of exposures to allergens contained in the proteins of many latex gloves, including those manufactured by defendants", as well as testimony on "alternative designs". (Ex. A to Letter from Mandarano to Holwell, J., July 2, 2004.) This testimony is that of a generic expert, percipient or not. The Court cannot conclude that Judge Fox clearly erred in circumscribing the testimony of Dr. Beezhold, who was not identified by plaintiffs as an expert pursuant to the Federal Rules. Therefore, the Court declines to modify the May 27 order as to the testimony of Dr. Beezhold.
Finally, with respect to plaintiffs request to appeal this Court's order of February 20, 2004, a district court may certify for appeal an otherwise unappealable order if (a) the order involves "a controlling question of law as to which there is substantial ground for difference of opinion" and (b) "an immediate appeal from the order may materially advance the ultimate termination of the litigation". 28 U.S.C. 1292(b). Assuming arguendo that plaintiffs' request meets the first prong, the Court does not believe that an interlocutory appeal of an order relating to pretrial evidentiary motions will advance the ultimate termination of the litigation. For this reason, the Court denies plaintiffs' request for 1292(b) certification.
SO ORDERED.