Doe v. Solvay Pharmaceuticals, Inc. , 153 F. App'x 1 ( 2005 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-1065
JANE DOE,
Plaintiff, Appellant,
v.
SOLVAY PHARMACEUTICALS, INC.,
Defendant, Appellee.
ON APPEAL FROM A JUDGMENT OF
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock Jr., U.S. District Judge]
Before
Selya, Lynch, and Lipez, Circuit Judges.
Jane Doe on brief pro se.
Robert H. Stier, Jr., on brief for appellee.
October 28, 2005
Per Curiam. After a thorough review of the record and of
the parties’ submissions, we summarily affirm the judgment below.
The lower court did not err in its handling of the
discovery disputes between the parties. The district court has
broad discretion to control pre-trial discovery, and this court
“review[s] the district court’s denial of discovery for abuse of
its considerable discretion.” Ayala-Gerena v. Bristol Myers-Squibb
Co., 95, F.3d 86, 91 (1st Cir. 1996) (citations omitted). “‘We will
intervene in such matters only upon a clear showing of manifest
injustice, that is, where the lower court’s discovery order was
plainly wrong and resulted in substantial prejudice to the
aggrieved party.’” Id. (quoting Mack v. Great Atlantic & Pacific
Tea Co., 871 F.2d 179, 186 (1st Cir. 1989)). This deferential
standard “recogniz[es] that an appeals court simply cannot manage
the intricate process of discovery from a distance.” Brandt v.
Wand Partners, 242 F.3d 6, 18 (1st Cir. 2001).
On one side of the discovery dispute here, the magistrate
judge faced a pro se plaintiff, Jane Doe, who charged that the
defendant, Solvay Pharmaceuticals, Inc., was withholding
documents.1 On the other side, the magistrate judge faced a
defendant who claimed to have disclosed all responsive documents
and who voluntarily made all remaining documents available for
Doe’s review. By holding a series of discovery conferences, the
1
Jane Doe is a pseudonym.
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magistrate judge made several concerted attempts to clarify Doe’s
requests and to obtain from Solvay some assurances that the
documents Doe wanted were in its possession and would be made
available to Doe. The court twice gave Doe an extension of time
within which to complete discovery, and it made a room and a
computer at the courthouse available for Doe’s convenience in
reviewing documents in camera. Solvay seems to have exhibited some
good faith, by making many of the confidential documents available
to Doe at a convenient location and at its own expense. When that
proved to be insufficient, Solvay offered Doe free rein to peruse
the entire collection of documents relevant to Luvox (the drug in
question) at Solvay’s headquarters, pursuant to Fed. R. Civ. P.
33(d).
Doe suggests that Solvay was acting in bad faith, hoping
she would be so overwhelmed not only with the task of reviewing so
many documents but also with the trouble and expense of traveling
to Solvay’s headquarters in Georgia that she would forgo the
exercise altogether. But from a practical standpoint, we do not
know what other reasonable steps the magistrate judge could have
taken at that point. As the magistrate judge told Doe at the final
discovery conference, at some point she needed to bring discovery
to a close. The deadline already had been extended twice, and the
court had tried other, less burdensome approaches for getting Doe
the documents that allegedly were in Solvay’s possession.
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The crux of the matter is that Solvay said it already had
provided everything Doe requested. Doe disagreed and said that
Solvay was not telling the truth. The only way for Doe to
establish that she was right, at that juncture, was to go to
Georgia and find the missing documents herself. We see no abuse of
discretion in the magistrate judge’s decision to resolve the
discovery dispute in that manner.
We also discern no error in the court’s decision allowing
summary judgment in Solvay’s favor. Many of Doe’s arguments are
premised on the assumption that Solvay engaged in misconduct during
discovery and that, accordingly, (i) evidence supporting its
summary judgment motion should have been excluded pursuant to Fed.
R. Civ. P. 37(c)(1), or (ii) Doe should have been excused for
failing to produce evidence establishing that the facts were in
controversy. The difficulty with these arguments is that Doe never
established that Solvay engaged in discovery misconduct.
Doe also claims that disposition of the summary judgment
motion should have been delayed pursuant to Fed. R. Civ. P. 56(f).
As we already have determined, however, the court did not err
either in its handling of the discovery disputes or in closing
discovery when it did. In all events, the requirements for the
invocation of Rule 56(f) were not met. See, e.g., Velez v. Awning
Windows, Inc., 375 F.3d 35, 40 (1st Cir. 2004); Resolution Trust
Corp v. North Bridge Assocs., 22 F.3d 1198, 1203 (1st Cir. 1994).
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To the extent Doe argues that any of her claims did not
need to be supported by expert testimony, she is mistaken. Maine
law requires that, with respect to subjects that are highly
technical or specialized, expert testimony must be presented unless
the question is “sufficiently obvious as to lie within [the] common
knowledge” of the ordinary layperson. Forbes v. Osteopathic Hosp.
of Me., Inc., 552 A.2d 16, 17 (Me. 1988) (medical malpractice case;
expert testimony required unless “negligence and harmful results
are sufficiently obvious as to lie within common knowledge”)
(citation and internal quotation marks omitted). The issues
presented in this case were not “sufficiently obvious as to lie
with the common knowledge of the ordinary layperson.”
We also reject Doe’s contention that the court should not
have applied the learned intermediary rule to her defective warning
claim. This court already has decided that Maine courts would
adopt that rule. See Violette v. Smith & Nephew Dyonics, 62 F.3d
8, 13 (1st Cir. 1995) (noting that “the general rule regarding
medical devices (and, more frequently and by analogy, prescription
drugs) is that the manufacturer must warn the physician – the so-
called ‘learned intermediary’ – and not the patient directly”).
We need go no further. We have reviewed the remaining
arguments in Doe’s brief and find them to be either unsupported by
the record, entirely without merit, or forfeited.
Affirmed. See 1st Cir. R. 27(c).
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