Petition for Writ of Certiorari — Lee v. Dow Chemical Co.

oupreme Court, U.S.

FILED

0

911353 mR 3 202

OPFICE OF THE Coen

In The

Supreme Court of the United States

DIONNE LEE,

Petitioner,

AESTHETECH CORPORATION; BRISTOL-MYERS

SQUIBB COMPANY; FHE COOPER COMPANIES,

INC.; COOPER SURGICAL, INC.; CRONIN, THOMAS

D., M.D.; CV SUB 1987, INC.; THE DOW CHEMICAL

COMPANY; VIKI GALATI; GEROW, FRANK J., M.D.;

MEDICAL ENGINEERING CORPORATION,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

¢

PETITION FOR A WRIT OF CERTIORARI

¢

DIONNE LEE

Post Office Box 50215

Henderson, Nevada 89016

Telephone: (702) 894-5002

QUESTIONS PRESENTED

_1. Whether the requirements of 28 U.S.C. § 1291 are

satisfied so as to give jurisdiction to the Court of Appeals

in a multiple claims and multiple parties case when the

District Court entered a final judgment, which adjudi-

cates less than all the claims and adjudicates less than all

the parties.

2. Whether Congress has provided guideposts for

determining what sorts of neglect will be considered

“excusable” to convey the notion that some types of

neglect - at a minimum focus on the reasons for the error

with emphasis in its effect. Federal Rules for Appellate

Procedure Rule 4(a)(5), 28 U.S.C.A.

3. Whether the Court’s Order granting Petitioner's

costs on appeal may be repelled and the mandate include

the Respondents’ costs after the Petitioner’s uncontested

motion for recovery of her costs was granted and entered

in the Court’s docket sheet and Petitioner timely filed the

Bill of Costs within the 14 day period as prescribed by the

Rule.

il

LIST OF PARTIES

Dionne Lee, f/k/a Dionne Lee Simons in the lower

court

Aesthetech Corporation

Bristol-Myers Squibb Company,

f/k/a Bristol-Myers Company

The Cooper Companies, Inc.,

f/k/a Coopervision, Inc.

Cooper Surgical, Inc.

Cronin, Thomas D., M.D.

CV SUB 1987, Inc.

The Dow Chemical Company

Viki Galati

Gerow, Frank J., M.D.

Medical Engineering Corporation

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ... 2.2 cccccsccccccccccecs i

BE GP PUMUEEUEED wees bgt senses taeccdswsnssvaves ii

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STATUTORY PROVISIONS. 6.06 cccccsscccececcccees 1

ore ie fe | se Per re Perr er 2

REASONS FOR GRANTING THE WRIT ........... +

Ce reer Ter rrrrrrerrerr rr Terre cre 5

I. Time For Appeal Does Not Run Against Party

Aggrieved By Dismissal Until The District Court

Enters A Final Judgment That Clearly Disposes

Of The Entire Civil Action. Federal Rules Of

Civil Procedure, Rule 54(b), 28 U.S.C.A ....... 5

II. The Courts Of Appeals Have Divided In Their

Interpretations Of “Excusable Neglect” Under

The Federal Rules Of Appellate Procedure Rule

EO CII vos cc eckncencavsncisdawveseea 6

III. The Mandate Issued By The Court Of Appeals Is

Insufficient And Different With The Spirit And

Terms Of The Court’s Order In Granting Peti-

tioner’s Costs On Appeal..................45. 9

EE cena ane inde dense esshavehosecacucs 10

iv

TABLE OF AUTHORITIES

Page

CASES

Benson v. Bearb, 807 F.2d 1228 (5th Cir. 1987)......... 6

Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct.

PEGS Tee eT Oe Lee Tee OTe PTT TT 6

Hanson v. First Bank of South Dakota, N.A., 828 F.2d

1310 (8th Cir. 1987)........ ye ye Sree 8

In re Analytical Systems, Inc., 933 F.2d 939 (11th Cir.

SDSS dA ALES URC hs evs eSde Fae naee a keneeuseres 8

In re Davis, 936 F.2d 771 (4th Cir. 1991)..7........... 8

In re Danielson, 981 F.2d 296 (7th Cir. 1992) .......... 8

Kansas City Southern Ry. Co. v. Guardian Trust Co.,

Ot Gt, aoe Uk ©, Fe BS. BG Cee os cia ccdecsstas 9

Lorenzen v. Employees Retirement Plan of Sperry-

Hutchinson Co., 896 F.2d 228 (7th Cir. 1990)........ 8

Mosley v. Cozby, 813 F.2d 659 (5th Cir. 1987)........ 4,5

Nelson v. Toti, 707 F.2d 170 (5th Cir. 1983).......... 4,6

Pioneer Investment Services Company v. Brunswick

Aasaciakes, 11S SAU TORS CUGGS) occa cc aca scccccesss 8

Pratt v. McCarthy, 850 F.2d 590 (9th Cir. 1988)........ 8

Scarpa v. Murphy, 782 F.2d 300 (1st Cir. 1986) ........ 9

Sears, Roebuck and Co. v. Mackey, 76 S.Ct. 895 (1956) ..... 6

650 Park Ave. Corp. v. McRae, 836 F.2d 764 (2nd Cir.

PTET EIT Pe rT Per eee Ley er rete nee 8

Thomas v. Basham, 931 F.2d 521 (8th Cir. 1991)........ 9

;

i

;

M

TABLE OF AUTHORITIES - Continued

Page

Thompson v. Betts, 754 F.2d 1243 (5th Cir. 1985)....... 6

Witherspoon v. White, 111 F.3d 399 (5th Cir. 1997)..... 6

STATUTES

y BR Lome D>” 2) rr rerr rey r rrr rrr rrr TT ey re 1

- Bit Tae BY. Peeprerrrrr rr err err re errr 1, 4,5, 6

y: Bik tae SB! ot rrr nT pre ey rer ey rrr ese 2

ae USA... § ZIGMG) cciccvicsxens Oe ere ree eer Ty ere er 1

Federal Rules of Appellate Procedure, Rule 4(a)...... 7

Federal Rules of Appellate Procedure, Rule 4(a)(1) ...5, 6

Federal Rules of Appellate Procedure, Rule

eT : PIED SCRE retaar ey enna ae 5

Federal Rules of Appellate Procedure, Rule

pF \ eerrr eres rer ere rr er rrr te eer 7

Federal Rules of Appellate Procedure, Rule

GE 58520508 as eke Ras Se oe 6, 7, 8

Federal Rules of Appellate Procedure, Rule 39(a)..... +

Federal Rules of Appellate Procedure, 5th Cir. R.

fh, rer Tr ere rng e . reer. Ure Ply roe +

fh Frere err arr er err ye rere Sry *

Federal Rules of Bankruptcy, Procedure, Rule

bs PPP ee eeC TTT re ere terre rr rer yr 8

Federal Rules of Civil Procedure, Rule 54(b) ....5, 6, 7

Federal Rules of Civil Procedure, Rule 77(d)......... 7

7 >? ~ 47°, - a ‘

TABLE OF AUTHORITIES - Continued

Pp >

i ave

Supreme Court Rule 10(c 4

upreme Court Rule 13(1 ]

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully prays that a Writ of Certiorari

issue to review the opinion of the United States Court of

Appeals for the Fifth Circuit filed December 12, 2001.

+

OPINION BELOW

Dionne Lee v. Aesthetech Corporation; Bristol-Myers

Squibb Company, f/k/a/ Bristol-Myers Company; The

Cooper Companies, Inc., f/k/a/ Coopervision, Inc.; Coo-

per Surgical, Inc.; Cronin, Thomas D., M.D.; CV SUB

1987, Inc.; The Dow Chemical Company; Vicki [sic] Gal-

ati; Gerow, Frank J., M.D.; Medical Engineering Corpora-

tion, Unpublished Opinion, United States Court of

Appeals for the Fifth Circuit, filed December 12, 2001,

reprinted in the Appendix A.

+

JURISDICTION .

The judgment and opinion of the Court of Appeals

for the Fifth Circuit were filed December 12, 2001. This

Petition for Writ of Certiorari followed within 90 days. 28

U.S.C. § 2101(c); Supreme Court Rule 13(1) and (4). This

court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

.

STATUTORY PROVISIONS

28 U.S.C. § 1291 provides in pertinent part:

The courts of appeals (other than the United

States Court of Appeals for the Federal Circuit)

tN

shall have jurisdiction of appeals from all final

decisions of the district courts of the United

States. ..

+

STATEMENT OF THE CASE

Petitioner filed a Silicone Gel Breast Implant lawsuit

on July 31, 1992, in the 55th Judicial District Court, Harris

County Texas (the “Consolidated Harris County Silicone

Gel Breast Implant Litigation”). The suit was filed in state

court against the Respondents and others for Strict Lia-

bility, Negligence, Gross Negligence, Fraud, Breach of

Warranty, Res Ipsa Loquiter, Intentional and Negligent

Infliction of Emotional Distress and Damages. On May

15, 1995, Dow Corning Corporation filed a voluntary

petition for relief under chapter 11 of title 11 of the

United States Code in the United States Bankruptcy Court

for the Eastern District of Michigan, Northern Division.

On May 24, 1995, The Dow Chemical Company filed a

cross action in this instant case. On August 8, 1995, The

Dow Chemical Company and Corning Incorporated filed

a Joint Notice of Removal pursuant to 28 U.S.C. § 1452(a),

removing the entire Civil Action and all of the claims and

causes of action asserted, including without limitation all

of the claims asserted against the Removing Defendants

and other Defendants and any cross-claims or other

claims asserted against any such parties. The Civil Action

was removed to the United States Federal District Court

for the Southern District of Texas - Houston Division.

Within three months thereafter, the Civil Action was

transferred to the United States Federal District Court for

the Northern District of Alabama - Southern Division,

nee RPE meat om

ONT ao

|

;

absent of seven parties. The transfer was via the Multi-

District Litigation. The Original Petition was amended to

include the left off parties. The Dow Chemical Company

was severed and transferred to Michigan. In 1999, the

Civil Action was remanded to the transferor court.

(USDC - Houston). On August 18, 2000, Surgitek, Inc;

Bristol-Myers Squibb Company, formerly known as Bris-

tol-Myers Company; Cooper Surgical, Inc.; The Cooper

Companies, formerly known as Coopervision, Inc.; CV

SUB 1987, Inc.; Aesthetech Corporation; Medical Engi-

neering Corporation; CVI Merger Corporation; and Viki

Galati filed a motion to strike plaintiff’s experts and a

motion for summary judgment. After timely responses

were filed, on December 7, 2000 the District Court

granted the motions. (Appendix D); (Appendix E). On

December 7, 2000, the District Court entered a Final Judg-

ment (Appendix C). The Petitioner appealed to the Court

of Appeals for the Fifth Circuit. The notice of appeal was

dispatched with pre-paid postage and Certificate of Ser-

vice to the U.S. Postal Service, overnight delivery to the

Clerk, United States District Court for the Southern Dis-

trict of Texas — Houston Division, 515 Rusk Street,

Houston, Texas 77002. The postal service guaranteed

delivery by 3:00 p.m. Monday, January 8, 2001. An

inquiry was made regarding the status of the appeal and

the Petitioner was referred to the Court of Appeals for

the Fifth Circuit. The Fifth Circuit, quoting language to

the effect that the appeal was going through the normal

jurisdictional review. By letter dated March 13, 2001, the

Fifth Circuit docketed the appeal and enclosed a briefing

notice directing the parties to include among other issues

to be briefed the following: Whether the Notice of Appeal

filed on January 9, 2001 is timely from the final judgment

entered on December 7, 2000. After briefs and motions

were filed, the Fifth Circuit entered an Order on August

14, 2001, quoting to the effect that the Appellant’s motion

for Costs and Expenses on this appeal is granted (Appen-

dix B). Federal Rules of Appellate Procedure 39(a). The

entry was made on the docket sheet on August 14, 2001.

On December 12, 2001, the Fifth Circuit filed the judg-

ment and opinion; thereafter, the Petitioner filed the Bill

of Costs that was entered on the Court’s docket sheet on

December 26, 2001. The Court relied on Mosley v. Cozby,

813 F.2d 659, 660 (5th Cir. 1987), and Nelson v. Toti, 707

F.2d 170, 171-72 (5th Cir. 1983). In the Fifth Circuit’s

December 12, 2001 opinion, quoting to the effect that the

appeal is untimely; thus the appeal is dismissed and all

outstanding motions are denied (Appendix A). The Court

determined that the opinion shouid not be published and

is not precedent except under the limited circumstances

set forth in the 5th CIR. R. 47.5; 5th CIR. R. 47.5.4. For

some unexplained reason, the U.S. Postal Service deliv-

ered the notice of appeal to the Clerk on January 9, 2001,

one day late.

+

REASONS FOR GRANTING THE WRIT

It is respectfully submitted that this case meets the

standard of the Supreme Court Rule 10(c). The Fifth

Circuit decided what is characterized as a jurisdictional

question under 28 U.S.C. § 1291 and costs under the

principles, rules, and practice of equity under 28

U.S.C.A. Because of the importance of the issues deter-

mining appellate jurisdiction, equity costs, and conflicts

ene oe ene ene

ALLL OE Le ALR RENATO re tem.

fn al

in judicial views on the subjects and because of the con-

flict in the Courts of Appeals over the meaning of “excus-

able neglect”, it should be settled by this Court. For the

reasons hereafter stated, the Fifth Circuit’s judgment and

opinion are erroneous and should not be allowed to stand

on these important questions.

+

ARGUMENT

E,

Time For Appeal Does Not Run Against Party

Aggrieved By Dismissal Until The District Court Enters

A Final Judgment That Clearly Disposes Of The Entire

Civil Action. Federal Rules of Civil Procedure, Rule

54(b), 28 U.S.C.A.

The Fifth Circuit failed to address jurisdiction under

28 U.S.C. § 1291 and relied on Mosley v. Cozby, 813 F.2d

659, 660 (5th Cir. 1987). The issue in that case was

whether the document filed “clearly evinced the party’s

intent to appeal” and an examination of the case dis-

closed no effect notice of appeal. The appeal was dis-

missed for lack of jurisdiction. Federal Rules of Appellate

Procedure Rule 4(a)(1), 28 U.S.C.A.

This is not a case where the Petitioner failed to

clearly evince intent to appeal under Federal

Rules of Appellate Procedure Rule 4(a)(1), 28

U.S.C.A.

The Petitioner’s document entitled “Notice of

Appeal” was clearly evidence of the Petitioner’s intent to

appeal. The certificate of service attached to the notice of

appeal clearly indicated that all parties were put on

notice. The Fifth Circuit lacked jurisdiction under Federal

Rules of Civil Procedure, Rule 54(b), where the District

Court failed to enter a final judgment. This was that

Court’s error, therefore the Fifth Circuit should have

taken a different view to claim “lack of Jurisdiction”.

Benson v. Bearb, 807 F.2d 1228 (5th Cir. 1987); Federal

Rules of Civil Procedure Rule 54(b), 28 U.S.C.A.; Wither-

spoon v. White, 111 F.3d 399 (5th Cir. 1997); 28 U.S.C.

§ 1291; Thompson v. Betts, 754 F.2d 1243, 1245 (5th Cir.

1985). Federal Rules of Civil Procedure Rule 54(b); Fed-

eral Rules of Appellate Procedure Rule 4(a)(1). This is the

error of the Fifth Circuit and negates the notion that the

Fifth Circuit lacks jurisdiction under Federal Rules of

Appellate Procedure Rule 4(a)(1)(A). The time to appeal

in this instant case has not begun to run. Sears, Roebuck

and Co. v. Mackey, 76 S.Ct. 895 (1956); Coopers & Lybrand v.

Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d

351 (1978).

II.

The Court Of Appeals Have Divided In Their Inter-

pretations Of “Excusable Neglect” Under The Federal

Rules Of Appellate Procedure Rule 4(a)(5), 28 U.S.C.A.

The Fifth Circuit took no view on the appropriate

standard to extend time. The Court relied on Nelson v.

Toti, 707 F.2d 170, 171-72 (5th Cir. 1983). The issue in that

case was whether Nelson’s lack of notice of judgment by

the Clerk should relieve the requirement of the late filing

of the notice of appeal. In Nelson, the filing of the notice

of appeal was delayed for 138 days. It was further stated,

a party may move the District Court to excuse the delay

a an eee ee

in filing a timely notice of appeal and a motion to excuse

the delay is made no more than 30 days after the expira-

tion of the 30-day period prescribed for filing the notice

of appeal. The court dismissed the appeal where the

filing of the notice of appeal was delayed for 138 days.

Federal Rules of Appellate Procedure Rule 4(a), 28

U.S.C.A.; Federal Rules for Civil Procedure Rule 77(d), 28

U.S.C.A.

This is not a case where the Petitioner attempted

to fite a notice of appeal after the initial 30-day

period. This issue is where the Petitioner acted

in good faith to perfect the appeal, and relied on

the U.S. Postal Service for a timely delivery of

the notice of appeal. Not only did the postal

service fail to complete the task timely, there

was no explanation for the delay in the delivery.

The Fifth Circuit’s December 12, 2001 opinion indi-

cated that the appeal was dismissed and all outstanding

motions are denied. (Appendix A). The Court, quoting

language to the effect that no motion was filed that

would affect the running of the 30-day period. Federal

Rules of Appellate Procedure 4(a)(4)(A). Her appeal is

untimely; we lack jurisdiction.

This is the Fifth Circuit’s error. If the notice of appeal

was timely filed within the 30-day period after the entry

of the final judgment, the appeal would be premature.

Federal Rules of Civil Procedure Rule 54(b), 28 U.S.C.A.

Therefore, any motions to extend time to file the notice of

appeal before or after the prescribed 30-day period would

be moot; thus there was no mistake or neglect by the

Petitioner, excusable or otherwise. If the District Court

had properly entered a final judgment and Rule 4(a)(5)

Federal Rules of Appellate Procedure was an issue, the

Court must determine the appropriate standard for an

extension of time to file the notice of appeal.

The Courts of Appeals are divided in their interpreta-

tions of “excusable neglect” as found in Rule 4(a)(5).

Some Courts require a showing that the movant'’s failure

to meet the deadline was beyond its control. 650 Park Ave.

Corp. v. McRae, 836 F.2d 764, 767 (2d Cir. 1988); Pratt v.

McCarthy, 850 F.2d 590, 592 (9th Cir. 1988). Others

adopted a more flexible approach. Lorenzen v. Employees

Retirement Plan of Sperry-Hutchinson Co., 896 F.2d 228,

232-233 (7th Cir. 1990). The Courts of Appeals have been

similarly divided in their interpretations of “excusable

neglect” under Rule 9006(b)(1), Federal Rules of Bank-

ruptcy Procedure, 11 U.S.C.A. Several Courts of Appeals

have taken a narrow view of “excusable neglect” requir-

ing a showing that the delay was caused by circum-

stances beyond the movant’s control. In re Davis, 936 F.2d

771, 774 (4th Cir. 1991); In re Danielson, 981 F.2d 296, 298

(7th Cir. 1992); Hanson v. First Bank of Southern Dakota,

N.A., 828 F.2d 1310, 1314-1315 (8th Cir. 1987); In re Analyt-

ical Systems, Inc., 933 F.2d 939, 942 (11th Cir. 1991). When

Courts depart from the language of a congressional com-

mand, they often create unintended difficulties in the

process. If Congress had intended to depart from the

accepted meaning of excusable neglect — supplementing

its exclusive focus on the reason for the error with

emphasis on its effect - surely it would have indicated. At

the threshold there is but one question on which to focus:

the reason the deadline was missed. Pioneer Investment

Services Company v. Brunswick Associates, 113 S.Ct. 1489,

1505 (1993).

—

When a deadline is missed, as in this instant case, for

some unexplained reason, there was no mistake by the

Petitioner, excusable or otherwise; rather there was inex-

cusable neglect by the U.S. Postal Service for failure to

transmit an adequately addressed envelope to the District

Court on time. Scarpa v. Murphy, 782 F.2d 300 (1st Cir.

1986), reversed.

Ill.

The Mandate Issued By The Court Of Appeals Is Insuf-

ficient And Different With The Spirit And Terms Of

The Court’s Order In Granting Petitioner’s Costs On

Appeal.

The leading case on this issue is Kansas City Southern

Ry. Co. v. Guardian Trust Co., et al., 281 U.S. 1, 50 S.Ct. 194

(1930). It holds that equity costs not otherwise governed

by statute are given or withheld in the Court’s sound

discretion. 281 U.S. at 194. The Court goes on to state the

following:

Equity costs are given or withheld in the sound

discretion of the court according to the facts and

circumstances of the case.

The District Court entered a final judgment that was

not final, therefore not appealable. The District Court

entered a final judgment that failed to address the issue

of The Dow Chemical Company’s cross-action. Thomas v.

Basham, 931 F.2d 521 (8th Cir. 1991). The Fifth Circuit

granted and entered on the Court’s docket sheet the

Petitioner’s uncontested motion for her recovery of costs

and expenses on the appeal (Appendix B). The Petitioner

filed the Bill of Costs within the 14-day period prescribed

10

by the Rule. On December 26, 2001, it was entered on the

Fifth Circuit’s docket sheet. The Petitioner’s recovery for

costs on appeal is granted then repelled by the Fifth

Circuit. All of these factors taken together place a person

such as Petitioner under a life-time cloud.

+

CONCLUSION

For the foregoing reasons, Petitioner Lee respectfully

prays that a Writ of Certiorari issue in this case.

Dated: March 8, 2002

Respectfully submitted,

DIONNE LEE

App. 1

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-20060

Conference Calendar

DIONNE LEE, formerly known as Dionne Lee

Simons,

Plaintiff-Appellant,

versus

THE DOW CHEMICAL COMPANY ET AL.,

Defendants,

THE DOW CHEMICAL COMPANY; THOMAS

D. CRONIN, M.D.; FRANK J. GEROW, M.D.;_ —

AESTHETECH; BRISTOL-MYERS SQUIBB,

INC.; THE COOPER COMPANIES;

COOPERSURGICAL;: CV SUB 1987;

VICKI [sic] GALATI: MEC,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-95-CV-9401

(Filed Dec. 12, 2001)

Before HIGGINBOTHAM, BARKSDALE, and STEWART,

Circuit Judges.

App. 2

PER CURIAM:*

Dionne Lee seeks to appeal the summary-judgment

dismissal of her lawsuit. This court must examine the

basis of its jurisdiction on its own motion if necessary.

Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). Lee’s

notice of appeal was filed more than 30 days after the

entry of the judgment she seeks to appeal. Fed. R. App. P.

4(a)(1)(A). Lee filed no motion that would affect the

running of the 30-day pericd. Fed. R. App. P. 4(a)(4)(A).

Consequently, her appeal is untimely and we do not have

appellate jurisdiction. See Nelson v. Foti, 707 F.2d 170,

171-72 (5h Cir. 1983). Because we lack jurisdiction, Lee’s

appeal is DISMISSED and all outstanding motions are

DENIED.

* Pursuant to 57TH 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 Cr. R.

47.5.4.

App. 3

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-20060

DIONNE LEE, formerly known as Dionne Lee

Simons

Plaintiff-Appellant

V.

THE DOW CHEMICAL COMPANY;

CORNING INC; THOMAS D CRONIN, MD;

FRANK J GEROW, MD.; AESTHETECH;

BRISTOL-MYERS SQUIBB INC; THE COOPER

COMPANIES; COOPERSURGICAL; CV SUB

1987; VICKI [sic] GALATI; MEC

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas, Houston

(Filed Aug. 14, 2001)

Before HIGGINBOTHAM, WEINER, and BARKSDALE,

Circuit Judges.

BY THE COURT:

IT IS ORDERED that Appellant’s motion for sum-

mary reversal is denied.

IT IS FURTHER ORDERED that Appellant’s motion

for remand is denied.

App. 4

IT IS FURTHER ORDERED that Appellant’s motion

for instruction to the District Court to impose sanctions

and disciplinary actions upon Bristol-Meyers [sic] Com-

pany, its counsel, and counsel for the “other appellees”,

Doctors Gerow and Cronin is denied.

IT IS FURTHER ORDERED that Appellant’s motion

tor cost and expenses on this appeal is granted.

App. 5

APPENDIX C

[LOGO]

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

DIONNE LEE, §

PLAINTIFF, §

; §

a § CIVIL ACTION NO.

SURGITEK, INC., et at. § H-95-9401

DEFENDANTS. §

FINAL JUDGMENT

Pursuant to the orders striking the plaintiff's experts

and entering summary judgment, the plaintiff shall take

nothing by her suit.

This is a Final Judgment.

Signed this 7th day of December, 2000.

/s/ Kenneth M. Hoyt

KENNETH M. HOYT

United States District Judge

App. 6

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

DIONNE LEE

VS.

SURGITEK, INC.; ET AL. §

§

§ C.A. NO. H-95-9401

Fs 2)

ORDER

ON THE 7th day of December, 2000, came on to be

heard Defendants, SURGITEK, INC, BRISTOL-MYERS

SQUIBB COMPANY, formerly known as BRISTOL-

MYERS COMPANY, COOPER SURGICAL, INC., THE

COOPER COMPANIES, INC., formerly known as COO-

PERVISION, INC., CV SUB 1987, INC., AESTHETECH

CORPORATION, MEDICAL ENGINEERING CORPORA-

TION, CVI MERGER CORPORATION, and VIKI GAL- |

ATI’S, Motion to Strike Plaintiff’s Experts. The Court

having considered said motion, heard argument of coun-

sel and reviewed the record in its entirety, is of the

opinion that said motion should be granted. It is, there- .

fore,

ORDERED, ADJUDGED AND DECREED that based

on the failure by Plaintiff to comply with Federal Rule of

Civil Procedure 26 (2), and because Plaintiff’s experts do

not meet the requirements of Daubert, Defendants’

Motion to Strike Plaintiff’s Experts is granted. It is further

ADJUDGED AND DECREED that Plaintiff shall not

be allowed to offer at the time of trial any testimony, by

teil mati

App. 7

records or live appearance, from any of the aforemen-

tioned experts. :

SIGNED this 7th day of December, 2000.

/s/ Kenneth M. Hoyt

JUDGE PRESIDING

App. 8

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

DIONNE LEE §

ys. C.A. NO. H-95-9401

SURGITEK, INC.; ET AL g

ORDER

ON THE day of , 2000, came on to

be heard Defendants, SURGITEK, INC. BRISTOL-MYERS

SQUIBB COMPANY, formerly known as BRISTOL-

MYERS COMPANY, COOPER SURGICAL, INC, THE

COOPER COMPANIES, INC., formerly known as COO-

PERVISION, INC., CV SUB 1987, INC., AESTHETECH

CORPORATION, MEDICAL ENGINEERING CORPORA-

TION, CVI MERGER CORPORATION, and VIKI GAL-

ATI’S, Motion for Summary Judgment. The Court having

considered said motion, heard argument of counsel and

reviewed the record in is entirety is of the opinion that

said motion should be granted. It is, therefore,

ORDERED that Defendants, SURGITEK, INC, BRIS-

TOL-MYERS, SQUIBB COMPANY, formerly known as

BRISTOL-MYERS COMPANY, COOPER SURGICAL, INC,

THE COOPER COMPANIES, INC., formerly known

as COOPERVISION, INC., CV SUB 1987, INC.,

AESTHETECH CORPORATION, MEDICAL ENGINEER-

ING CORPORATION, CVI MERGER CORPORATION,

and VIKI GALATI, shall have judgment rendered in its

App. 9

favor and shall stand fully released, discharged and

acquitted of any and all claims of the Plaintiff made the

basis of this suit. Costs of court are taxed against Plaintiff.

All relief not expressly granted herein is expressly

denied.

SIGNED this 7th day of December, 2000.

/s/ Kenneth M. Hoyt

JUDGE PRESIDING