     Case: 10-31097     Document: 00511680466         Page: 1     Date Filed: 11/30/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 30, 2011
                                     No. 10-31097
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

In re: VIOXX PRODUCTS LIABILITY LITIGATION
_______________________________________________________

JAMES D. SCHNELLER, Individually and on behalf of the Estate of George H.
Schneller,

                                                  Plaintiff-Appellant

v.

MERCK AND COMPANY, INCORPORATED,

                                                  Defendant-Appellee


                   Appeals from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:05-MD-1657
                             USDC No. 2:05-CV-5382


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
       James D. Schneller appeals the district court’s dismissal of his complaint
as amended brought against the drug manufacturer Merck and Company,
Incorporated on behalf of himself individually and on behalf of the estate of


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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George H. Schneller; as trustee ad litem for individuals entitled to relief due to
the death of Marjorie C. Schneller; and as trustee ad litem for the executrix of
the estate of Marjorie C. Schneller. The district court dismissed the complaint
with prejudice on the ground that Schneller failed to comply with the mandates
of pretrial order 28 (PTO 28) by not producing a doctor’s report linking
decedent’s injury and death to the use of Vioxx. Schneller has filed a motion to
proceed in forma pauperis (IFP) on appeal, challenging the district court’s
certification, pursuant to Baugh v. Taylor, 117 F.3d 197, 199-202 (5th Cir. 1997),
that his appeal was not taken in good faith.
      This court reviews the district court’s dismissal of Schneller’s case for
failing to comply with PTO 28 for an abuse of discretion. Acuna v. Brown &
Root, Inc., 200 F.3d 335, 340-41 (5th Cir. 2000); In re Vioxx Products Liab. Litig.,
388 F. App’x 391, 397 (5th Cir. 2010), cert. denied, 131 S. Ct. 1477 (2011); see
FED R. CIV. P. 16(f)(1)(C). We will affirm a dismissal with prejudice when there
is a clear record of delay or contumacious conduct by the plaintiff and the district
court employed lesser sanctions that proved to be futile. See Long v. Simmons,
77 F.3d 878, 880 (5th Cir. 1996).
      Schneller argues that (1) he was deprived of access to the LexisNexis File
and Serve service during the district court proceedings; (2) defendants in a
Pennsylvania state court proceeding regarding Marjorie Schneller’s hospital
treatment have conspired against him and sought to evict, impoverish, and
retaliate against him; (3) his complaint should not have been dismissed because
he raised some claims not requiring expert testimony under Pennsylvania law;
(4) he failed to receive notice prior to the approval of the Vioxx Resolution
Program; and (5) the district court’s repeated deferrals and extensions of time
caused a “non-existent appearance of court patience and generosity.”
      In In re Vioxx Products Liab. Litig., we upheld the district court’s adoption
of PTO 28, relying on Acuna’s holding that “it is within a court’s ‘discretion to
take steps to manage the complex and potentially very burdensome discovery

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that the cases would require.’” 388 F. App’x at 397-98 (quoting Acuna, 200 F.3d
at 340). We affirmed the district court’s dismissal of the appellants’ claims based
on their failure to comply with the requirement of PTO 28 that they each
produce a report from a doctor linking the alleged injury to the use of Vioxx. Id.
at 393, 397-98.
      The district court issued PTO 28 on November 9, 2007, and the court did
not dismiss Schneller’s complaint until September 23, 2010, or almost three
years after the issuance of PTO 28. Although Schneller argues that he was
prejudiced by his inability to participate in the LexisNexis File and Serve service
and that he failed to receive notice prior to the approval of the Vioxx Resolution
Program, it is clear from the substance of Schneller’s June 30, 2008 motion for
an extension of time to file an expert report that Schneller was aware of the
expert report requirements of PTO 28 for some time prior to the filing of that
motion. Schneller does not dispute that the district court granted numerous
extensions of time for him to comply with PTO 28. To the extent that Schneller
contends that his complaint should not have been dismissed because he raised
some claims not requiring expert testimony under Pennsylvania law, as he
concedes, in In re Vioxx Products Liab. Litig., this court rejected the appellants’
argument that PTO 28 was improper because expert testimony was not required
for claims for negligent infliction of emotional distress under New York law. 388
F. App’x at 398. Although Schneller attempts to distinguish In re Vioxx Products
Liab. Litig. on the ground that he raised multiple claims not requiring expert
testimony under Pennsylvania law, he does not argue that he attempted to
withdraw his personal injury claims or make any showing that he had a viable
action in the absence of demonstrating some connection between Marjorie
Schneller’s use of Vioxx and her death.
      Because Schneller had almost three years in which to comply with PTO 28,
and in light of the multiple extensions of time afforded to him for compliance, the
district court did not abuse its discretion in dismissing his complaint with

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prejudice based on his failure to comply with PTO 28. See Acuna, 200 F.3d at
340-41; In re Vioxx Products Liab. Litig., 388 F. App’x at 397-98; Long, 77 F.3d
at 880.
      Schneller has not demonstrated that he will raise a nonfrivolous issue on
appeal. Accordingly, Schneller’s IFP motion is DENIED and his appeal is
DISMISSED as frivolous. See 5TH CIR. R. 42.2; Baugh, 117 F.3d at 202 & n.24;
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
   IFP DENIED; APPEAL DISMISSED.




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