Preview
FILED: NEW YORK COUNTY CLERK 10/27/2023 03:31 PM INDEX NO. 155780/2023
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023
FILED: NEW YORK COUNTY CLERK 10/27/2023 03:31 PM INDEX NO. 155780/2023
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023
THE OSHMAN FIRM, LLC
THEODORE OSHMAN, ESQUIRE- NJ ID 009421983
190 CHIRTOPHER COLUMBUS DR., STE.5B
JERSEY CITY, NJ 07302
(212) 233-2100; FAX (800)335-0585
oshman@oshmanlaw.com
ATTORNEY FOR PLAINTIFFS
IN RE REGLAN LITIGATION :
: SUPERIOR COURT OF NEW JERSEY
: LAW DIVISION: MIDDLESEX COUNTY
MICHELLE SCHWARTZ, : MASTER DOCKET: MID-L-010165-14
Plaintiff(s), : CASE NO: 289
v. :
: DOCKET NO. MID-L-010457-14
WYETH, LLC, et al., :
: CIVIL ACTION
:
: CERT1FICATION OF THEODORE
Defendants. : OSHMANIN SUPPORT OF MOTION
TO VACATE DISMISSAL ORDER AND
FOR REINSTATMENT OF
COMPLAINT
THEODORE OSHMAN, of full age, certifie as follows:
l. Lam a member of The Oshman Firm, LLC.. attorney for the plaintiff, Michelle Schwartz
with respect to the abovenoted matter. I submit this certification based upon my own
personal knowledge and in support ofthe Motion to Vacate the Dismissal Order of this
Court dated November 2, 2020 and for Reinstatement of the Complaint
2. Attached as Exhibit 1 is a true and accurate copy of the prior Order of this Court dated
November2, 2020, granting Defendant's summary judgment motion default and
dismissing the complaint with prejudice.
FILED: NEW YORK COUNTY CLERK 10/27/2023 03:31 PM INDEX NO. 155780/2023
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023
3. That I did not learn or become aware of defendants summary judgment motion until well
after the return date and the motion was submitted to the Court unopposed.
4. That upon leaming of the fact that this motion was submitted to the Court unopposed, I
immediately contacted defense counsel, Rex Littrell to request that the defendant's
consent to my submitting papers in opposition to the motion.
5. That within a few days thereafter, I received a call from Mr. Littrell that the defendant
would not consent to my submitting opposition papers to the inotion.
6. Attached as Exhibit 2, is the affidavit of Rachel Wininger, setting forth the reason that
this motion was submitted to the Court unopposed.
7. That shortly after my conversation with Mr. Littrell, I was advised by the Chambers of
the Hon. James F. Hyland, J.S.C., the Justice of the Court who signed the subject Order,
that he would be retiring from the bench and a replacement Justice was to be appointed.
8. That in February of 2021
9. That in this action plaintiff claims that she suffered a movement disorder caused by a
drug manufactured by the defendant.
10. That the defendant does not dispute that a pharmacy where the plaintiff had prescriptions
filled provided her with a medication manufactured by the defendant.
11. Attached as Exhibit 3 is the expert report received by the undersigned in this action from
Dr. Daniel Tarsy, sated August 6, 2019.
12. Attached as Exhibit 4, is the deposition transcript of Dr. Gary Starkman, plaintiff s
treating neurologist, wherein he testified at pages 126 - 127 that the plaintiff's movement
disorder was caused by the medication manufactured and provided to the plaintiff by the
defendant.
FILED: NEW YORK COUNTY CLERK 10/27/2023 03:31 PM INDEX NO. 155780/2023
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023
. I certify that the foregoing statements made by me are true. I am aware that if any of the
foregoing statements made by me is willfully false, [ am subject to punishment.
Dated: August 23, 2021
Theodore Oshman
FILED: NEW YORK COUNTY CLERK 10/27/2023 03:31 PM INDEX NO. 155780/2023
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023
.. THE OSHMAN FIRM, LLC
THEODORE OSHMAN, ESQUIRE- N J ID 009421983
190 CHIRTOPHER COLUMBUS DR., STE.5B
JERSEY CITY, NJ 07302
(212) 233-2100; FAX (800)335-0585
ATTORNEY FOR PLAINTIFF
IN RE REGLAN LITIG ATION :
: SUPERIOR COURT OF NEW JERSEY
MICHELLE SCHWARTZ, : LAW DIVISION: MIDDLESEX COUNTY
: MASTER DOCKET: MID-L-010165-14
Plaintiff(s), : CASE NO: 289
v. :
DOCKET NO. MID-L-010457-14
WYETH, LLC, et al., :
CIVIL ACTION
BRIEF IN SUPPORT OF MOTION TO
: VACATE DISMISSAL ORDER AND FOR
Defendants. : REINSTATEMENT OF COMPLAINT
Plaintiff respectfully submits these points and authorities in support of her concurrently
filed Notice of Motion and Motion to Vacate Dismissal Order and for Reinstatement of
Complaint.
INTRODUCTION
Despite having a meritorious case, Plaintiff has suffered the death penalty sanction of
dismissal with prejudice. This dismissal was not due to any Iault of the plaintitT herself, but due
to the fact that the clectronic notification of the underlying motion was missed by a member of my
staff who was newly assigned to this litigation. Because, under these circumstances, the sanction
imposed on Plaintiff is too severe, the dismissal order should be vacated, Plaintiff's Complaint
should be reinstated and an appropriate opportunity be given to be heard on the underlying motion
to dismiss with oral argument and appropriate supporting papers.
ANALYSIS
FILED: NEW YORK COUNTY CLERK 10/27/2023 03:31 PM INDEX NO. 155780/2023
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023
New Jersey Court Rule 4:50..Relief From Judgment or Order, provides in subdivision
4:50-1. Grounds of Motion, as follows:
"On motion, with briefs, and upon such terms as are just, the courts inay relieve a party or
the party's legal representative firom a final judgment or order for the following release: (a)
mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which
would probably alter the judgement or order and which by due diligence could not have been
discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party:
(d) the judgment or order is void; (e) the judgment or order has been satisfied. released or
discharged, or a prior judgment or order upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment or order should have prospective
order."
application; or (f) other reason justifying relief from the eputation of the judgment or
any
Furthermore, New Jersey Court Rule 4:50-2 provides that so long as the motion is made
if made within one year of when the
pursuant to sections (a), (b) and (c) of R. 4:50-1, it is timely
judgment, order or proceeding was entered or taken.
In this motion plaintiff seeks to set aside the default.judgment based upon that section of
Rule 4:50-1 which provides for relief from a final judgment based upon "(a) mistake,
neglect."
inadvertence, surprise, or excusable As this motion is made within one
year of the date of such judgment, it is timely made pursuant to the rules of this Court.
Rule 4:50-1 has been "designed to reconcile the strong interests of finality ofjudgments
and judicial efficiency with the equitable notion that courts should bave authority to avoid an
case."
unjust result in any given Mancini v. EDS. 132 N1 330,334, 625 A.2d 484 (1993)
(quoting Baumann v Marinaro, 95 N.J. 380. 392, 471 A.2d 395. In addressing the issue of
FILED: NEW YORK COUNTY CLERK 10/27/2023 03:31 PM INDEX NO. 155780/2023
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023
dismissal such has occuned in the matter at bar, the New Jersey Supreme Court has explained
sanction,"
that because dismissal with prejudice is "the ultimate it should be imposed "only .
sparingly"
and "normally...ordered only when no lesser sanction ivill suffice to erase the
party."
prejudice suff'ered by the non-delinquent Robertet Flavors. Inc. v. Tri-Fonn Const, 203
N.J. 252, 274 (2010). By vacating the instant default or reinstating Plaintiff's case, Defendants
will suffer no prejudice as no circumstance has changed since the date of the order of dismissal.
To the contrary, it is only the Plaintiff who would suffer significant, undue prejudice for a
mistake that was not ofher own making.
In describing the approach of the Court when addressing an application to vacate a
judgment granted on default, the commentary of Pressler & verniero, N.J. Court Rules, comment
4..1 on R. :50-1, they note that "an application to vacate a default judgment is viewed with great
liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is
reached."
As set forth in the Affidavit of the paralegal assigned to the handling of this matter,
Rachel C. Wininger, the default in responding to the motion filed by the Defendant was
attributable to an honest mistake and not the result of reckless conduct or intentionally neglecting
the electronic notice received by the Court. Such circumstances can be deemed a showing of
cause" neglect"
"good and/or "excusable warranting the vacating of a default judgment U_S
Bank Nat. AssI v Guillaman, 209 N.1 449 (2012).
There has never been any dispute in this seven yearlong litigation where documentary
discovery, party and phy sician depositions have been conducted, expert reports exchanged and .
multiple mediation sessions have occurred, that the Plaintiff utilized the product of.the Defendant
and developed a movement disorder. As indicated by the annexed exhibits of Dr. Gary Starkman,
FILED: NEW YORK COUNTY CLERK 10/27/2023 03:31 PM INDEX NO. 155780/2023
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023
the Plaintiff s treating neurologist, and Dr. Daniel the Harvard based expert on
Tarsy, testifying
her behalf, the cause of this movement disorder is the product sold by the Defendant and utilized
by the Plaintift
CONCLUSION
As there has been good cause shown, as well as the existence of excusable neglect in a
clearly meritorious case. Plaintiff respectfully request that the Court vacate its November 2, 2020
Order of Dismissal with prejudice as to the case, reinstate Plaintiffs Complaint and allow the
motion of the defendant to be orally argued after providing Plaintiff the opportunity to
appropriately respond thereto.
Respectfully submitted,
THE OSHMAN FIRM, LLC
Attorney for Plaintiff(s)
By: /s/ Theodore Oshman
Theodore Oshman, Esq.
Dated: August 19, 2021
FILED: NEW YORK COUNTY CLERK 10/27/2023 03:31 PM INDEX NO. 155780/2023
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023
AFFIDAVIT
lN RE REGLAN
IATIGATION : SUPERIOR COURT OF NEW JERSEY
: LAW DIVISION: MIDDLESEX COUNTY
: MASTER DOCKET:
MICHELLE MID-L-010165-14
SCHWARTZ, :
: CASE NO: 289
Plaintiff
: DOCKETNO.
v . MID-L-010457-14
: CIVIL ACTION
WYETH, LLC, et al.,
:-
Defendants
L Rachel C. Wininger, current paralegal at The Oshman Firm, LLC, assmned all duties and
responsibilities of former paralegal Catherine Vidal in late 2020. While working within her
capacity as paralegal Catherine Vidal was assigned MicheHe Schwart: v. Wyeth LLC, and
electronically received the motion in November 2020. Upon Catherin
assuming Vidal's position,
I mistakenly overlooked the email containing the motion for Michelle Schwartz and did not
realize it was my to download.
responsibility provide notice to the firm. and add the schedule
date to the calendar. I only became aware of my error after it was too late to rectify.
Sworn t efore E e o
27*dÓof)é,,. 9 21
Preview
FILED: NEW YORK COUNTY CLERK 10/27/2023 03:31 PM INDEX NO. 155780/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023 FILED: NEW YORK COUNTY CLERK 10/27/2023 03:31 PM INDEX NO. 155780/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023 THE OSHMAN FIRM, LLC THEODORE OSHMAN, ESQUIRE- NJ ID 009421983 190 CHIRTOPHER COLUMBUS DR., STE.5B JERSEY CITY, NJ 07302 (212) 233-2100; FAX (800)335-0585 oshman@oshmanlaw.com ATTORNEY FOR PLAINTIFFS IN RE REGLAN LITIGATION : : SUPERIOR COURT OF NEW JERSEY : LAW DIVISION: MIDDLESEX COUNTY MICHELLE SCHWARTZ, : MASTER DOCKET: MID-L-010165-14 Plaintiff(s), : CASE NO: 289 v. : : DOCKET NO. MID-L-010457-14 WYETH, LLC, et al., : : CIVIL ACTION : : CERT1FICATION OF THEODORE Defendants. : OSHMANIN SUPPORT OF MOTION TO VACATE DISMISSAL ORDER AND FOR REINSTATMENT OF COMPLAINT THEODORE OSHMAN, of full age, certifie as follows: l. Lam a member of The Oshman Firm, LLC.. attorney for the plaintiff, Michelle Schwartz with respect to the abovenoted matter. I submit this certification based upon my own personal knowledge and in support ofthe Motion to Vacate the Dismissal Order of this Court dated November 2, 2020 and for Reinstatement of the Complaint 2. Attached as Exhibit 1 is a true and accurate copy of the prior Order of this Court dated November2, 2020, granting Defendant's summary judgment motion default and dismissing the complaint with prejudice. FILED: NEW YORK COUNTY CLERK 10/27/2023 03:31 PM INDEX NO. 155780/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023 3. That I did not learn or become aware of defendants summary judgment motion until well after the return date and the motion was submitted to the Court unopposed. 4. That upon leaming of the fact that this motion was submitted to the Court unopposed, I immediately contacted defense counsel, Rex Littrell to request that the defendant's consent to my submitting papers in opposition to the motion. 5. That within a few days thereafter, I received a call from Mr. Littrell that the defendant would not consent to my submitting opposition papers to the inotion. 6. Attached as Exhibit 2, is the affidavit of Rachel Wininger, setting forth the reason that this motion was submitted to the Court unopposed. 7. That shortly after my conversation with Mr. Littrell, I was advised by the Chambers of the Hon. James F. Hyland, J.S.C., the Justice of the Court who signed the subject Order, that he would be retiring from the bench and a replacement Justice was to be appointed. 8. That in February of 2021 9. That in this action plaintiff claims that she suffered a movement disorder caused by a drug manufactured by the defendant. 10. That the defendant does not dispute that a pharmacy where the plaintiff had prescriptions filled provided her with a medication manufactured by the defendant. 11. Attached as Exhibit 3 is the expert report received by the undersigned in this action from Dr. Daniel Tarsy, sated August 6, 2019. 12. Attached as Exhibit 4, is the deposition transcript of Dr. Gary Starkman, plaintiff s treating neurologist, wherein he testified at pages 126 - 127 that the plaintiff's movement disorder was caused by the medication manufactured and provided to the plaintiff by the defendant. FILED: NEW YORK COUNTY CLERK 10/27/2023 03:31 PM INDEX NO. 155780/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023 . I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me is willfully false, [ am subject to punishment. Dated: August 23, 2021 Theodore Oshman FILED: NEW YORK COUNTY CLERK 10/27/2023 03:31 PM INDEX NO. 155780/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023 .. THE OSHMAN FIRM, LLC THEODORE OSHMAN, ESQUIRE- N J ID 009421983 190 CHIRTOPHER COLUMBUS DR., STE.5B JERSEY CITY, NJ 07302 (212) 233-2100; FAX (800)335-0585 ATTORNEY FOR PLAINTIFF IN RE REGLAN LITIG ATION : : SUPERIOR COURT OF NEW JERSEY MICHELLE SCHWARTZ, : LAW DIVISION: MIDDLESEX COUNTY : MASTER DOCKET: MID-L-010165-14 Plaintiff(s), : CASE NO: 289 v. : DOCKET NO. MID-L-010457-14 WYETH, LLC, et al., : CIVIL ACTION BRIEF IN SUPPORT OF MOTION TO : VACATE DISMISSAL ORDER AND FOR Defendants. : REINSTATEMENT OF COMPLAINT Plaintiff respectfully submits these points and authorities in support of her concurrently filed Notice of Motion and Motion to Vacate Dismissal Order and for Reinstatement of Complaint. INTRODUCTION Despite having a meritorious case, Plaintiff has suffered the death penalty sanction of dismissal with prejudice. This dismissal was not due to any Iault of the plaintitT herself, but due to the fact that the clectronic notification of the underlying motion was missed by a member of my staff who was newly assigned to this litigation. Because, under these circumstances, the sanction imposed on Plaintiff is too severe, the dismissal order should be vacated, Plaintiff's Complaint should be reinstated and an appropriate opportunity be given to be heard on the underlying motion to dismiss with oral argument and appropriate supporting papers. ANALYSIS FILED: NEW YORK COUNTY CLERK 10/27/2023 03:31 PM INDEX NO. 155780/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023 New Jersey Court Rule 4:50..Relief From Judgment or Order, provides in subdivision 4:50-1. Grounds of Motion, as follows: "On motion, with briefs, and upon such terms as are just, the courts inay relieve a party or the party's legal representative firom a final judgment or order for the following release: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgement or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party: (d) the judgment or order is void; (e) the judgment or order has been satisfied. released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective order." application; or (f) other reason justifying relief from the eputation of the judgment or any Furthermore, New Jersey Court Rule 4:50-2 provides that so long as the motion is made if made within one year of when the pursuant to sections (a), (b) and (c) of R. 4:50-1, it is timely judgment, order or proceeding was entered or taken. In this motion plaintiff seeks to set aside the default.judgment based upon that section of Rule 4:50-1 which provides for relief from a final judgment based upon "(a) mistake, neglect." inadvertence, surprise, or excusable As this motion is made within one year of the date of such judgment, it is timely made pursuant to the rules of this Court. Rule 4:50-1 has been "designed to reconcile the strong interests of finality ofjudgments and judicial efficiency with the equitable notion that courts should bave authority to avoid an case." unjust result in any given Mancini v. EDS. 132 N1 330,334, 625 A.2d 484 (1993) (quoting Baumann v Marinaro, 95 N.J. 380. 392, 471 A.2d 395. In addressing the issue of FILED: NEW YORK COUNTY CLERK 10/27/2023 03:31 PM INDEX NO. 155780/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023 dismissal such has occuned in the matter at bar, the New Jersey Supreme Court has explained sanction," that because dismissal with prejudice is "the ultimate it should be imposed "only . sparingly" and "normally...ordered only when no lesser sanction ivill suffice to erase the party." prejudice suff'ered by the non-delinquent Robertet Flavors. Inc. v. Tri-Fonn Const, 203 N.J. 252, 274 (2010). By vacating the instant default or reinstating Plaintiff's case, Defendants will suffer no prejudice as no circumstance has changed since the date of the order of dismissal. To the contrary, it is only the Plaintiff who would suffer significant, undue prejudice for a mistake that was not ofher own making. In describing the approach of the Court when addressing an application to vacate a judgment granted on default, the commentary of Pressler & verniero, N.J. Court Rules, comment 4..1 on R. :50-1, they note that "an application to vacate a default judgment is viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." As set forth in the Affidavit of the paralegal assigned to the handling of this matter, Rachel C. Wininger, the default in responding to the motion filed by the Defendant was attributable to an honest mistake and not the result of reckless conduct or intentionally neglecting the electronic notice received by the Court. Such circumstances can be deemed a showing of cause" neglect" "good and/or "excusable warranting the vacating of a default judgment U_S Bank Nat. AssI v Guillaman, 209 N.1 449 (2012). There has never been any dispute in this seven yearlong litigation where documentary discovery, party and phy sician depositions have been conducted, expert reports exchanged and . multiple mediation sessions have occurred, that the Plaintiff utilized the product of.the Defendant and developed a movement disorder. As indicated by the annexed exhibits of Dr. Gary Starkman, FILED: NEW YORK COUNTY CLERK 10/27/2023 03:31 PM INDEX NO. 155780/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023 the Plaintiff s treating neurologist, and Dr. Daniel the Harvard based expert on Tarsy, testifying her behalf, the cause of this movement disorder is the product sold by the Defendant and utilized by the Plaintift CONCLUSION As there has been good cause shown, as well as the existence of excusable neglect in a clearly meritorious case. Plaintiff respectfully request that the Court vacate its November 2, 2020 Order of Dismissal with prejudice as to the case, reinstate Plaintiffs Complaint and allow the motion of the defendant to be orally argued after providing Plaintiff the opportunity to appropriately respond thereto. Respectfully submitted, THE OSHMAN FIRM, LLC Attorney for Plaintiff(s) By: /s/ Theodore Oshman Theodore Oshman, Esq. Dated: August 19, 2021 FILED: NEW YORK COUNTY CLERK 10/27/2023 03:31 PM INDEX NO. 155780/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023 AFFIDAVIT lN RE REGLAN IATIGATION : SUPERIOR COURT OF NEW JERSEY : LAW DIVISION: MIDDLESEX COUNTY : MASTER DOCKET: MICHELLE MID-L-010165-14 SCHWARTZ, : : CASE NO: 289 Plaintiff : DOCKETNO. v . MID-L-010457-14 : CIVIL ACTION WYETH, LLC, et al., :- Defendants L Rachel C. Wininger, current paralegal at The Oshman Firm, LLC, assmned all duties and responsibilities of former paralegal Catherine Vidal in late 2020. While working within her capacity as paralegal Catherine Vidal was assigned MicheHe Schwart: v. Wyeth LLC, and electronically received the motion in November 2020. Upon Catherin assuming Vidal's position, I mistakenly overlooked the email containing the motion for Michelle Schwartz and did not realize it was my to download. responsibility provide notice to the firm. and add the schedule date to the calendar. I only became aware of my error after it was too late to rectify. Sworn t efore E e o 27*dÓof)é,,. 9 21