Current Developments
Last Updated: November 13, 2009
November 10, 2009
The Court held a formal status conference by telephone in In re Levaquin Products Liability Litigation on November 10, 2009. Appearing by phone on behalf of plaintiffs were Ronald Goldser, David Cialkowski, Lewis Saul, Kevin Fitzgerald, Yvonne Flaherty, Richard Schulte, Troy Giatris, Bill Bross, and Anna Yakle. Appearing by phone on behalf of defendants were John Dames, Bill Essig, William Robinson, and Tracy Van Steenburgh. The topics for the status conference included (1) the number of cases pending and anticipated in the MDL and state courts; (2) the status of the New Jersey litigation; (3) the status of the case-selection process; (4) defendants’ pending summary judgment motion in the Karkoska case; (5) the status of the entry of an order on the case-specific discovery in Phase I cases; (6) the deposition of Dr. Baniriah; (7) the commencement of discovery for Phase II cases; and (8) currently pending items and motions. The parties indicated that there are currently 240 MDL cases, with 5 federal cases subject to transfer, for a total of 245 federal cases. There are also 76 total state court cases, with the majority of cases in New Jersey and other state court cases in Illinois and California. Defendants’ counsel indicated that written discovery in the New Jersey cases was not completed. The Court indicated that it will consider the case-selection process, case-specific discovery for Phase I cases, and the commencement of discovery in Phase II cases at the hearing on plaintiffs’ motion to consolidate. Defendants’ counsel also indicated that it would be scheduling Dr. Baniriah’s deposition in the Straka case in the near future. The Court has scheduled a hearing on plaintiffs’ motion to consolidate for November 23 at 10:30 a.m.
September 8, 2009
The Court held a formal status conference in In re Levaquin Products Liability Litigation on September 8, 2009. Appearing on behalf of the plaintiffs were Ronald Goldser, Lewis Saul, Yvonne Flaherty, and Kevin Fitzgerald. Appearing on behalf of the defendants were John Dames, William Robinson, Tracy Van Steenburgh, and John O’Shaughnessy, with Alyssa Daniels, Cory Watson, and Rick Schulte appearing by phone. The topics for the status conference included: (1) the number of cases pending and anticipated in the MDL and state courts; (2) the status of the New Jersey litigation; (3) coordination between the MDL and NJ state court; (4) the scheduling of bellwhether cases; (5) the status of discovery in the MDL, encompassing a variety of subtopics including the plaintiffs’ pending motion to compel; and (6) proposed amendments to Pre-Trial Order No. 1 and Pre-Trial Order No. 3. The parties indicated that there are presently 136 MDL cases, with 11 pending transfer, for a total of 147 cases. There are also currently 60 state court cases, 57 of which are in New Jersey and are assigned to Judge Higbee. The confidentiality order is still in the process of being finalized in New Jersey. Lewis Saul is the plaintiffs’ liaison and John Dames is the defendants’ liaison between the New Jersey litigation and the MDL. As to the scheduling for bellwether trials, there are presently 13 bellwether cases, although the parties disagree how many of the selected cases will be tried at one time. The parties will meet and confer and further update the Court regarding this issue at the hearing on the motion to compel on October 2, 2009. The plaintiffs also indicated concerns about the discovery process, and the majority of those concerns will be addressed at the hearing on their motion to compel. The parties will submit a proposed Pre-Trial Order No. 5, reflecting an agreement between the parties that communications with their respective experts will remain confidential. The parties also noted that they are discussing a proposed Pre-Trial Order No. 6, addressing expert deposition discovery. Finally, the plaintiffs indicated that they would be proposing amendments to Pre-Trial Order No. 1 (adding individuals to the plaintiffs’ steering committee) and Pre-Trial Order No. 3 (addressing plaintiffs’ assessment and fee order). Those proposed amendments will be forthcoming. The Court has scheduled a hearing on the plaintiffs’ motion to compel for October 2 at 10:00 a.m.
May 12, 2009
The Court held a formal status conference in In Re Levaquin Products Liability Litigation on May 12, 2009. Appearing on behalf of the plaintiffs were Ronald Goldser, Lewis Saul, and David Cialkowski. Appearing on behalf of the defendants were John Dames, William Robinson, and Tracy Van Steenburgh. The topics for the status conference included (1) the number of cases currently in the Multi-District Litigation ("MDL"); (2) the status of similar litigation occurring in New Jersey; (3) a scheduling issue related to the handling of case-specific experts; and (4) the status of discovery. As to the number of cases, the parties indicated that there are now 83 cases in the MDL, with 3 more cases awaiting transfer. The parties added that there are also 6 state cases in New Jersey, 1 state case in Missouri, and possibly another a state case filed in Mississippi. As to the filings in New Jersey, the parties indicated that there is a pending state court proceeding that will address whether the New Jersey actions will be consolidated. The plaintiffs indicated that it is now conceivable that the total number of cases nationwide will be in the thousands. As to the scheduling issue and discovery, the parties did not present any issues requiring intervention by the Court, and indicated that several issues will be addressed in future motions. The Court has scheduled a hearing on defendants' motion to compel for May 26 at 11:00 a.m.
March 20, 2009
The Court held a formal status conference in In Re Levaquin Products Liability Litigation on March 20, 2009. Appearing on behalf of the plaintiffs were Ronald Goldser and Lewis Saul. Appearing on behalf of the defendants were John Dames, William Robinson, Tracy Van Steenburgh, and Jennifer Ampulski. The topics for the status conference included (1) the number of cases currently in the Multi-District Litigation ("MDL"); (2) plaintiffs' motion to compel more specific answers to several of their contention interrogatories, and (3) a variety of discovery issues, including the status of a variety of document requests and depositions. As to the number of cases, the defendants indicated that there now are a total of 83 cases, although not all of those cases have been transferred into this MDL. Defendants also noted that three additional state cases have been filed, in Missouri, Mississippi, and New Jersey. Plaintiffs' motion to compel sought more specific answers to its contention interrogatories about defendants' views on the differences between various drugs. The Court denied the motion, noting that defendants' views will be available in defendants' expert reports, and that the pretrial scheduling order will allow plaintiffs to subsequently file a rebuttal expert report. Finally, the parties discussed various discovery-related issues that do not require rulings from the Court. The next status conference in this case is set for April 28, 2009.
December 15, 2008
The Court held a formal status conference in In Re Levaquin Products Liability Litigation on December 15, 2008. Appearing on behalf of the plaintiffs were Ronald Goldser, Lewis Saul, and David Cialkowski. Appearing on behalf of the defendants were John Dames, William Robinson, Tracy Van Steenburgh, and Jennifer Ampulski. The topics for the status conference included (1) the selection of bellwether trials and a discovery plan; (2) the deposition of defendants' expert witness Dr. John Seeger; and (3) several issues with Pretrial Order #3, which will cover Plaintiffs' Common Benefit Fund, Common Cost Fund, Contingent Fee Agreements, Fee and Cost Sharing, and Time and Expense Reporting. As to the selection of bellwether trials, the parties now agree that at least eight cases filed in Minnesota by Minnesota plaintiffs should be a part of the bellwether trial pool. The defendants argue, however, that this pool should also include up to six additional cases filed by plaintiffs residing elsewhere. In the next several days, the plaintiffs will review the cases suggested by the defendants and address those cases in a letter to the Court. Following a response by the defendants, the Court will resolve this dispute shortly. Once a bellwether trial pool has been chosen, the parties will proceed with discovery in those cases. As to the defendants' expert witness Dr. Seeger, the parties disagreed as to whether the plaintiffs should be allowed to depose him this early in the litigation. The parties agree that Dr. Seeger will be deposed in his capacity as an expert at a later stage of discovery. The plaintiffs, however, would like to depose him earlier, to explore a variety of factual issues. The Court ruled that the plaintiffs can proceed with a fact-oriented deposition of Dr. Seeger now, but must limit their questioning to facts and opinions related to events preceding his retention as an expert. As to Pretrial Order #3, the parties addressed three inter-related questions about (1) the circumstances in which defendants will be required to provide notice of proposed settlements in non-MDL cases; (2) how the phrase "work product" should be defined in the context of materials provided by the defendants to non-MDL plaintiffs; and (3) whether the Order should establish a specific amount that should be paid to the MDL plaintiffs when particular cases settle. The Court will consider those issues further and resolve those disputes shortly. The next status conference in this case will be held in January 2009.
October 17, 2008
The Court held a formal status conference in In Re Levaquin Liability Litigation on October 17, 2008. Appearing on behalf of the plaintiffs were Ronald Goldser, Lewis Saul, and David Cialkowski. Appearing on behalf of the defendants were John Dames, Tracy Van Steenburgh, and Mike Hutchens. The topics for the status conference included (1) the anticipated scope of the MDL; (2) pretrial orders on various case procedures; (3) discovery; and (4) bellwether trials. As to the scope of the MDL, the parties indicated that there have now been more than 30 cases filed as part of the MDL. The parties also indicated that there have been at least 3 state cases filed. The Court intends to contact the judges handling the state cases to ensure they are aware of the MDL. As to pretrial orders, the Court indicated that the first pretrial order -- dealing with the organizational structure for both plaintiffs' and defendants' attorneys, as well as with various filing procedures -- will likely be filed shortly. In addition, the parties anticipate submitting a proposed order concerning depositions in the near future. The Court indicated that the order should allow for up to 2 questioners for each witness and that the parties should be permitted to film both the witness and the questioner. Finally, the plaintiffs anticipate submitting a proposed Common Benefit Fee and Cost Sharing Order. As to discovery, the parties indcicated that issues on the horizon include a new drug application, a marketing partner of Johnson & Johnson that operated in Europe (Aventis), and documents from an earlier patent trial involving Levaquin. The parties do not yet require a ruling from the Court on these issues. As to bellwether trials, the parties discussed a proposal by the plaintiffs suggesting that this Court front-load discovery on eight cases that were filed in Minnesota, and ultimately choose bellwether trials from those cases. The defendants have objected, suggesting that they are not yet in a position to judge whether these eight cases would be appropriate bellwether trials. The Court directed the plaintiffs to provide the defendants with fact sheets concerning all eight of these cases. The defendants will then provide the Court with a counter-proposal concerning bellwether trials and case-specific discovery. The Court set the next status conference for December 15, 2008, at 1:00 p.m.
September 4, 2008
The Court held a formal status conference in In Re Levaquin Products Liability Litigation on September 4, 2008. Appearing on behalf of the plaintiffs were Charles Zimmerman, Ronald Goldser, Lewis Saul, Stacy Hauer, Robert Binstock, Yvonne Flaherty, W. Lewis Garrison, Troy Giatras, and Brian McCormick. Appearing on behalf of the defendants were John Dames, William Robinson, Jr., Tracy Van Steenburgh, Mike Hutchens, and John O'Shaughnessy. The topics for the status conference included (1) the scope of the MDL; (2) the content of the first Pretrial Order; (3) the protocol for depositions; (4) discovery related to the drug Floxin; (5) fact sheets; (6) the general plan for dealing with discovery issues as this MDL moves forward; and (7) the management of individual cases. As to the scope of the MDL, the plaintiffs anticipate the filing of between 200 and 500 cases involving tendon rupture. The plaintiffs believe that Levaquin has caused other types of negative health effects as well. The parties disagree about whether those non-tendon cases should be included in this MDL, and will revisit that issue at a later date. As to the content of the Pretrial Order, the parties dicussed the proposed organization of plaintiffs' attorneys and the question of whether plaintiffs will be allowed to bundle plaintiffs from the same federal districts on single complaints. The Court will resolve the second issue in a written order, and the Pretrial Order will be filed soon thereafter. As to deposition protocol, the scope of discovery related to the drug Floxin, and fact sheets, the parties indicate that they are currently working to resolve those issues informally. The parties intend to submit a draft pretrial order establishing deposition protocol sometime in the near future. As to future discovery issues, the Court indicated that they will be taken up at regularly scheduled status conferences. Finally, the parties will be submitting a plan for how to deal with individual cases, including issues related to venue transfer. The Court set another status conference for October 17, 2008, at 12:15 p.m.
August 6, 2008
The Court held an initial, informal status conference in In Re Levaquin Products Liability Litigation on August 6, 2008. Ronald Goldser and Charles Zimmerman appeared on behalf of the plaintiffs, and John Dames and William Robinson appeared on behalf of the defendants. The parties scheduled a formal status conference for September 4, 2008, at 2:00 p.m. The parties discussed a number of Multi-District Litigation issues likely to arise at that conference. Those issues included the composition of the plaintiff's steering committee, the question of whether multiple plaintiffs from particular federal districts can be included in single complaints, deposition protocol, and plaintiffs' attorney's fees and cost-sharing proposal. The parties will brief the issue of multiple plaintiffs appearing on individual complaints in advance of the September 4 status conference. The parties also discussed a number of discovery issues that may arise at the September 4 status conference. Those issues include the search terms used by defendants in their search for discoverable materials, the relevance of the drug Floxin to this litigation, and depositions of plaintiffs' prescribing physicians. The parties anticipate that the Floxin issue will ultimately be the subject of a formal motion.