216 F.3d 157 (1st Cir. 2000), 99-1432, Doe v Urohealth Systems Inc.

Docket Nº:99-1432
Citation:216 F.3d 157
Case Date:June 26, 2000
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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216 F.3d 157 (1st Cir. 2000)




No. 99-1432

United States Court of Appeals, First Circuit

June 26, 2000

Heard April 6, 2000

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[Copyrighted Material Omitted]

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Brooks R. Magratten, with whom Benjamin V. White and Vetter & White, were on brief for appellant.

Albert R. Romano, with whom Romano & Spinella, was on brief for appellee.

Before Boudin, Stahl, and Lipez, Circuit Judges

Stahl, Circuit Judge.

Defendant-appellant Urohealth Systems, Inc. ("Urohealth") appeals the district court's order, entered pursuant to Fed. R. Civ. P. 41(a)(2), granting plaintiff-appellee John Doe's motion to dismiss voluntarily and without prejudice this diversity suit. We reverse and remand.


In the late summer of 1995, John Doe sought treatment for impotence and consulted a urologist, Dr. Jacques Susset, who recommended the surgical implantation of a penile prosthesis. Doe met with another urologist, Dr. Alan Podis, who suggested that implantation of the Dura-II semirigid penile prosthesis would be appropriate. Doe agreed with the recommendation and the Dura-II was implanted by Podis in February 1996.

The Dura-II originally was designed and manufactured by the Dacomed Corporation ("Dacomed"), which Urohealth acquired as a wholly owned subsidiary in 1995. After the acquisition, Urohealth manufactured and sold the Dura-II to physicians and hospitals. It is unclear whether the actual Dura-II installed in Doe was manufactured before or after Urohealth's acquisition of Dacomed, but Urohealth has eschewed this as a defense.

About two months after the surgery, Doe began to have problems with the device. On August 6, 1997, plaintiff filed in federal district court a complaint against Urohealth for strict liability, negligence, and breach of warranty. His complaint alleged that the Dura-II implant caused him pain, made noises, and would not operate properly.

Although the parties commenced discovery before the establishment of a discovery schedule, the district court eventually set May 1, 1998, as the last day for Doe to make expert disclosures; scheduled discovery to close on June 15, 1998; and set June 25, 1998, as the last day for the parties to file dispositive motions. At the onset of the discovery process, Doe requested many documents, and Urohealth propounded interrogatories about Doe's experts. In response, Doe identified four experts who would testify. When Urohealth deposed them, none proffered an opinion about whether the Dura-II was defective or unreasonably dangerous. In fact, it turned out that none of them had agreed to serve as an expert on Doe's behalf.

On May 4, Doe identified three new experts, but failed to disclose their opinions or the grounds on which they would base their opinions. On June 23, 1998, Urohealth moved for summary judgment. That same day, the magistrate judge assigned to supervise discovery extended the close of discovery to September 1, 1998, and adjusted all other deadlines accordingly. Urohealth objected to this extension of the discovery deadline, but on July 29, 1998, the district court affirmed that order. In doing so, the court reprimanded Doe for his dilatory conduct while attempting to secure an expert. Eventually, on August 28, 1998, Doe furnished the resume and report of his newly named expert, Edward N. Reese, Ph.D., which prompted Urohealth to supplement its pending summary judgment motion in order to address Reese and his opinion.

Meantime, at 5:45 p.m. on August 27, 1998, the day before naming Reese as his expert, Doe noticed depositions, which were to take place in Providence, Rhode Island, of several of Urohealth's California-based employees. The deposition notices prescribed September 1, 1998, as the date for these depositions. In response,

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Urohealth sought and received a protective order striking the deposition notices, and the district court reprimanded Doe for his "absolutely inappropriate" discovery request. The next day, Doe filed sixty-five requests for production from Urohealth, prompting another motion for a protective order. The district court referred this matter to the magistrate judge, who granted the motion and noted that "to wait until the very last minute to file something like this is a total abuse of discovery."

On December 8, 1998, the magistrate judge heard argument regarding Urohealth's motion for summary judgment, and two days later, ordered Urohealth to raise any objections it might have to Reese's proposed testimony in a motion in limine. Urohealth so moved on January 11, 1999. On January 26, 1999, Doe filed in Rhode Island Superior Court a complaint against...

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