Last Updated: April 30, 2013
April 23, 2013
Status Conference held on April 23, 2013
1. Federal and state cases in MDL and state court There are currently 1,916 cases pending in the MDL.
There are three cases pending in Illinois and one in Pennsylvania.
There are 1287 active cases in New Jersey. Roughly 379 of those cases are currently subject to dismissal due to settlement, and 458 have been settled in principal.
2. Status of Settlement
Defendants report that only 773 cases in the MDL remain unsettled. Approximately 64 of those cases are subject to remand, 450 belong to the Carey & Danis law firm, and of the 265 remaining unsettled cases, 196 of those are in settlement discussions. Stipulations for dismissal in settled cases will be filed with the Court soon. Plaintiffs' counsel will alert the Court in advance of filing those stipulations for dismissal so the Court and counsel can determine the most appropriate and efficient form for those motions.
3. Status of Amended PTO 3 in New Jersey
On January 3, 2013 the Court entered an Amended PTO 3 regarding Plaintiff's common expense fund. This order has no effect unless and until it is entered by the New Jersey court. With respect to the Amended PTO 3 entered by this Court, the bank holding the account for the common expense fund has requested the addition of the following language:
Notwithstanding the above, BMO Harris Bank N.A. may act on the instructions of Plaintiff's MDL Liaison Counsel with respect to the account and shall have no responsibility to determine whether such instructions are in accordance with this Order.
This language does not affect the substantive operation of the Amended PTO 3, and counsel for both sides agreed to the inclusion of this phrase. Therefore, the Court filed an Amended PTO 3 reflecting this change on April 23, 2013.
A parallel amended PTO 3 was presented to Judge Higbee during a New Jersey status conference last week. Judge Higbee has provided all parties with two weeks to file objections to the Amended PTO 3. Plaintiffs' counsel does not anticipate any objections.
4. Motion to Dismiss (Carey, Danis & Lowe Cases)
On December 3, 2012, the Court entered an order to show cause regarding plaintiffs who had failed to serve a completed fact sheet ("PFS") on Defendants. The order allowed a 60 day period for such filings, which time period expired February 1, 2013.
Defense counsel filed a motion to dismiss on March 4, 2013, to dismiss cases in which PFSs have been produced, but are still allegedly deficient. The Court allowed plaintiffs 30 additional days in which to produce complete PFSs. Those 30 days have expired and in 23 cases no updated PFS was served. Both sides agree that these cases will be dismissed without prejudice, and will file a stipulation to that effect. Additionally, defense counsel claims that in 23 other cases updated PFSs were served, but remain deficient. Defense counsel will bring a motion to dismiss these cases and the parties will fully brief this issue. The Court will hear arguments on that matter at the next status conference.
5. Cases for Remand and Remand Order (PTO 13)
Between 60 and 65 cases are subject to remand, counsel are preparing a final suggestion of remand order that will allow plaintiffs thirty days to file any objections to remand.
6. Cases for Transfer
There are currently very few cases subject to transfer that are not handled by the Carey & Danis firm. Carey & Danis has 436 cases subject to transfer. Counsel for both sides continue to work toward an approach to transfer, and will submit a proposed order to the Court.
7. Projected End Date
Counsel continue to anticipate that the MDL will be completed in June 2013.
Next Status Conference: Monday, May 20, 2013 at 12:30PM.
March 13, 2013
Status Conference held on March 13, 2013
1. Number of cases pending
There are currently 1,921 cases pending in the MDL.
2. Federal/State Coordination
There are three cases pending in Illinois. Trials are not currently set in these matters.
There are 1355 active cases in New Jersey. Roughly 360 of those cases are currently subject to dismissal due to settlement, and 400+ have been settled in principal.
3. Status of Settlement
Defendants report that 1,375 cases are settled or in the process of settling. Dismissals will be submitted to the court soon.
4. Status of Amended PTO 3 in New Jersey
On January 3, 2013 the Court entered an Amended PTO 3 regarding Plaintiff's common expense fund. This order has no effect unless and until it is entered by the New Jersey court.
A parallel amended PTO 3 has not yet been signed or filed by Judge Higbee. No opposition to the proposed order has been expressed. At this time, there has been no transfer of settlement funds that would be subject to PTO 3.
5. Bond Reduction - - Schedin
Defense counsel will be submitting a proposed order to reduce the bond in the Schedin case to reflect the Eighth Circuit's reduction in damages, now that all of the issues other than the Rule 60 motion have been finally decided by the Eighth Circuit.
6. Motion to Dismiss (Carey, Danis & Lowe Cases)
On December 3, 2012, the Court entered an order to show cause regarding plaintiffs who had failed to serve a completed fact sheet on Defendants. The order allowed a 60 day period for such filings, which time period expired February 1, 2013.
Defense counsel filed a motion to dismiss on March 4, 2013, to dismiss cases in which the fact sheets have been produced, but are still allegedly deficient. The Court will allow plaintiffs 30 additional days in which to produce complete plaintiff fact sheets. After 30 days, the Court will enter dismissals in those cases in which the fact sheets remain deficient.
7. Motions to Withdraw - Pro Se Plaintiffs
There are 37 cases where plaintiff's attorneys have brought a motion to withdraw, which will result in those plaintiffs proceeding pro se. Defense counsel does not oppose any of the motions to withdraw, but request that any such orders contain addresses for the plaintiffs to allow for service of relevant documents on the pro se parties.
8. Cases for Remand and Remand Order (PTO 13)
With respect to at least six cases, the plaintiffs have made clear they would like their cases remanded for trial. Defense counsel has prepared and will submit a proposed remand order to the Court for these six cases.
There are approximately 50 other cases that are potentially subject to remand. The parties will file with the Court a proposed suggestion of remand that will allow plaintiffs in those cases 30 days to respond and explain why their cases should not be remanded. If the Court receives no responses within 30 days after entry of the suggestion of remand order, it will remand those cases.
9. Cases for Transfer
There are currently 575 cases subject to transfer. Carey & Danis, LLC is counsel on 436 of these cases. Taking into account cases that are subject to settlement, defense counsel projects that 25-30 cases will remain in the MDL that are subject to transfer under 28 U.S.C. § 1404
10. Projected End Date
The attorneys anticipate that the MDL will be completed in June 2013.
Next Status Conference: Tuesday, April 23, 2013 at 12:30PM.
February 5, 2013
Status Conference held on February 5, 2013
1. Number of cases pending and Federal/State Coordination
There are currently 1,930 cases pending in the MDL, and those cases involve 1,943 plaintiffs.
The January 25, 2013 status conference for the New Jersey mass tort litigation was cancelled, and another status conference has not been rescheduled at this time.
There are three cases pending in Illinois, one case in Pennsylvania, and one case in Mississippi. No trial date is currently set for any of these cases.
2. Status of Settlement
Defendants report that 1,137 cases are in the process of settling. Approximately 180 cases are still in settlement negotiations. Defendants reported that 25-27 cases have affirmatively rejected settlement.
3. Status of Amended PTO 3 in New Jersey
On January 3, 2013 the Court entered an Amended PTO 3 regarding Plaintiff's common expense fund. This order has no effect unless and until it is entered by the New Jersey court. A parallel amended PTO 3 has not yet been signed or filed by Judge Higbee. At this time, there is no imminent transfer of funds that would be subject to PTO 3.
4. Status of Sharon Johnson Trial
Sharon Johnson's case, the last of the Minnesota filed, Minnesota resident cases, is one of the cases in the process of settling. Therefore, the March 2013 trial has been cancelled.
5. Cases Subject to Dismissal on Order to Show Cause re: PFS Deficiency
On December 3, 2012, the Court entered an order to show cause regarding plaintiffs who had failed to serve a completed fact sheet on Defendants. The order allowed a 60 day period for such filings, which time period expired February 1, 2013. Defense counsel has requested additional time to submit proposed orders of dismissal in cases where the plaintiff has not complied with the order to show cause - as some of these cases are potentially subject to settlement.
6. Cases for Transfer
There are currently 612 cases subject to transfer, in 92 of those cases settlement is pending. Carey & Danis, LLC is counsel on 436 of these cases. Because Carey & Danis will be significantly impacted by the manner of transfer, its attorneys have requested the opportunity to address the Court in person, and will attend the next status conference.
7. Cases for Remand and Remand Order (PTO 13)
There are currently 191 cases that are potentially subject to remand. Settlement is pending in 44 of those cases. With respect to at least three cases, the plaintiffs have made clear they would like their cases remanded for trial. Defense counsel will submit proposed remand orders to the Court for these three cases.
With respect to a remand order encompassing the general procedure for remand, each side has submitted a proposed order for remand with comments regarding its position on the inclusion or exclusion of particular provisions. Due to the status of settlement and the Eighth Circuit's recent decision in Schedin, defense counsel will submit an updated proposed remand order to the Court within seven days.
Next Status Conference: Tuesday, March 5, 2013 at 12:30PM.
January 8, 2013
Status Conference held on January 8, 2013
1. Number of cases pending and Federal/State Coordination
Defendants state that there are approximately 1000 cases currently pending in the MDL that are in the process of settling, and will soon be dismissed. After the settlement is finalized, approximately 900 other cases will remain in the MDL.
In the New Jersey mass tort litigation, approximately 1400 cases are open. The number of open New Jersey cases does not include the 380 cases have been settled in principle. The next New Jersey status conference is set for January 25, 2013.
Three cases are pending in Illinois, and there is no trial date currently set for those cases. Additionally, there is one case in Pennsylvania and one in Mississippi. Additionally, four or five non-tendon cases have been filed in other state courts.
2. Status of Settlement
Plaintiffs reported that with respect to Phase 1 of the settlement, which includes the cases from 6 firms, the parties have reached a finalized settlement agreement and the agreement has been signed by the plaintiffs. Plaintiffs continue to work on their plan for allocation of the settlement funds. Plaintiffs anticipate that in the next 30 to 45 days they will submit the agreement for Chief Magistrate Judge Boylan's review and approval. Chief Magistrate Judge Boylan will also review the overall plan for allocation, as well as the allocations the plaintiffs' committee makes to individual cases. Additionally, plaintiffs anticipate creating some form of appeals process where plaintiffs can challenge allocations.
Both Phase 2 and Phase 3 are still in negotiation stages, and no settlement agreement has been finalized. Individual plaintiffs continue to request that their cases be submitted into these groups.
3. Proposed Order to Appoint Chief Magistrate Judge Boylan
Chief Magistrate Judge Boylan has approved the proposed order appointing him special master of the MDL settlement, and the Court will file that proposed order.
4. Outcome of Meet and Confer on January 7, 2013 - re: Sharon Johnson case
a. Proposed Scheduling Order
The parties have not yet reached a consensus on the pretrial scheduling order for the Johnson case. The parties will meet again tomorrow, and file either an agreed upon joint scheduling order, or, in the event they cannot reach a consensus, file separate proposed scheduling orders. The parties will submit the scheduling order(s) to the Court by January 11, 2013.
Defendants have received updated medical records from Sharon Johnson, and have asked Plaintiff's counsel for dates to conduct updated depositions of Sharon Johnson and two treating physicians.
c. Expert Designation
Plaintiffs agreed to advise defendants this week of whether plaintiff's counsel intend to designate Johnson's prescribing physician and orthopedic specialists as experts.
5. Revised Proposed Remand Order
The parties have agreed to meet and confer regarding an order for remand. Each side will submit a proposed order for remand with comments regarding its position on the inclusion or exclusion of particular provisions. These proposed orders will be submitted to the Court by January 11, 2013.
Next Status Conference: Tuesday, February 5, 2013 at 12:30 PM.
December 4, 2012
Status Conference held on December 4, 2012
1. Number of cases pending and Federal/State Coordination
Defendants state that there are 1927 cases currently pending in the MDL. Two cases are pending transfer to the MDL.
In the New Jersey mass tort litigation, 1470 cases are active. The next New Jersey status conference is set for December 13, and a June 2013 date has been set for the next Bellwether trial. Plaintiffs for the Bellwether case have not been selected.
Two cases are pending in Illinois. A hearing date has not been set on the summary judgment motion and there is no trial date at this time.
2. Status of Settlement
The parties are still working toward negotiating a three phase settlement. The parties are confident they will have the major settlement terms resolved in early 2013.
The parties would also like to appoint Chief Magistrate Judge Arthur J. Boylan to act as a special master for purposes of the settlement. The Court will speak with Chief Magistrate Judge Boylan about this appointment.
Phase I currently involves 858 cases. Phase II has approximately 100 cases. 72 cases have been dismissed as not part of a settlement.
3. Proposed Amendment to PTO 3
Plaintiffs indicated that they have reached an agreement regarding a proposed amended Pretrial Order 3, which governs the common benefit fund. Plaintiffs submitted a copy of the proposed amended order to the Court, and the Court will issue an order to show cause, requiring any objections to the proposed amended order to be filed within 14 days of the order to show cause.
The proposed amended Pretrial Order 3 has also been submitted to Judge Higbee in New Jersey.
4. March 2013 Trial - Cases in Discovery
Only Plaintiff Sharon Johnson's case remains for the March 5, 2013 trial. Defense counsel anticipates bringing several motions in limine, and would like to meet and confer with plaintiff's counsel regarding the motion to exclude Dr. Wells' expert testimony. A hearing date has not yet been set for the Wells motion. Several depositions have been taken, a few other depositions have been scheduled or will be scheduled, and both sides are updating discovery. Defense counsel agreed to submit to plaintiff's counsel the information required by Rule 35 so plaintiff's counsel can determine whether or not they will object to the IME.
5. Forum Non Conveniens
There are slightly over 700 cases that would be subject to transfer under forum non conveniens.
6. Cases for Remand
About 238 cases will be subject to remand. The parties have agreed to meet and confer regarding defense counsel's proposal for remand prior to the next status conference in early January.
Next Status Conference: Tuesday, January 8, 2013 at 1:30 PM.
October 30, 2012
Status Conference held on October 30, 2012
1. Number of cases pending and Federal/State Coordination
Defendants state that there are 1923 cases currently pending in the MDL.
In the New Jersey mass tort litigation, 1509 cases are active. No trials are currently scheduled in the New Jersey litigation, but a status conference is scheduled for November 8, 2012, and plaintiffs for a June 2013 Bellwether trial are expected to be selected at that time.
Two cases are pending in Illinois. The trial that was scheduled to begin in September 2012 was postponed, and the cases have not been rescheduled for trial.
2. Status of Settlement
Settlement is currently proceeding in several groups.
The first settlement group involves approximately 845 plaintiffs represented by a small number of firms who reached a settlement in September 2012 pursuant to negotiations with Chief Magistrate Judge Boylan. The terms of that agreement are currently being drafted. Plaintiff anticipates the agreement will be finalized in the next 2 weeks.
The second settlement group involves a set of plaintiffs represented by another group of firms who are interested in participating in the settlement reached by the first group. So far this group involves approximately 130 plaintiffs who have submitted their cases for evaluation.
The third settlement group involves plaintiffs whose counsels have a small number of cases in the MDL. Plaintiffs are reaching out to all counsel who have cases in the MDL and are inviting them to participate in the settlement. This third group also involves plaintiffs who are not working through MDL counsel, but have instead reached out directly to defendants to discuss settlement options. Currently this group involves approximately 60 plaintiffs.
As part of reaching a settlement agreement, the parties are also working toward developing a standardized settlement protocol through which plaintiffs will submit cases for an evaluation of whether, and to what extent, their cases are compensable.
3. Proposed Amendment to PTO 3
Plaintiffs continue to work with New Jersey counsel to come to an agreement with respect to the assessment issue. Plaintiffs indicated that they are very close to reaching an agreement, and will report to the Court as soon as any agreement is reached.
In the event that an agreement cannot be reached, the parties have agreed to an extension of the briefing deadline, which the Court granted prior to the status conference. Any opposition to plaintiffs' brief on this issue and plaintiffs' proposed amended PTO 3 is to be filed by November 9, 2012. Any reply is then due by November 16, 2012.
Defense counsel anticipates that the New Jersey settlement may be funded within the next 60 days, and reiterated that defendants will advise the Court at least 2 weeks before the settlement is funded, to allow the Court time to resolve any remaining issues with the assessment.
4. March 2013 Trial - Cases in Discovery
Only three Minnesota filed/Minnesota resident cases remain unresolved. Mr. Karkosa's case is still active, and plaintiffs will have a decision soon regarding whether this case will be dismissed. Defendants continue to conduct updated discovery in the two other active Minnesota cases - Steven Krieser and Sharon Johnson - in anticipation of a March trial.
5. Order on Defendants' Motion to Sever Multi-Plaintiff Complaints
Defendants reported that 325 of the plaintiffs from the multi-plaintiff cases have not timely refiled their complaints, and pursuant to the Court's August 17, 2012 order are automatically dismissed without prejudice.
6. Deficient PFSs - Order to Show Cause
Defendants have completed sending second deficiency notices and approximately 60 plaintiff fact sheets remain outstanding. Defendants have submitted a proposed order to show cause in these cases. Any objections to or comments on the proposed order to show cause shall be submitted to the Court by Tuesday, November 6, 2012.
7. Forum Non Conveniens & Cases for Remand
The forum non conveniens and remand issues have been fully briefed by the parties. In light of the continuing settlement discussions and the potential for a substantial decrease in the number of cases affected by these procedural issues, the Court will continue to retain these matters under advisement until a time when the scope of these issues is subject to less fluctuation.
Next Status Conference: Monday, December 4, 2012 at 2:30 PM.
October 1, 2012
Status Conference held on October 1, 2012
1. September 2012 settlement
The parties discussed the tentative settlement agreement reached on September 25, 2012, in a conference held in front of Chief Magistrate Judge Arthur J. Boylan. This tentative settlement agreement is being drafted, and involves the case inventories of 6 law firms. The effect of this settlement would reduce the MDL case count by 845 cases and plaintiffs. At the time of the status conference several other plaintiffs' firms have expressed an interest in exploring settlement, but there remain firms that are interested in going forward with the litigation.
2. MDL case status
In light of the September 2012 settlement and the Court's previous severance order the current number of MDL cases is 1,036.
Defendants forecast that there will be 774 cases subject to possible transfer for forum non-conveniens and 237 cases subject to remand following the settlement.
3. PTO 3
Plaintiffs indicated that the parties, including participants in the New Jersey litigation, are close to reaching a tentative agreement about the core issues raised by the amended Pre-trial Order 3. Plaintiffs indicated that the parties' goal is for simultaneous orders to be issued by this Court and the New Jersey state court with respect to the common fund to avoid potentially problematic jurisdictional issues.
In the event that an agreement cannot be reached the parties have agreed to a new briefing deadline. At the last status conference the Court had ordered that any attorney who intended to oppose Plaintiffs' brief on this issue and Plaintiffs' proposed amended Pre-trial Order 3 was to file responsive papers by September 27, 2012. Prior to this status conference the Court granted a 3 week extension to file such papers, making the new deadline for responsive papers October 18, 2012. Any reply is then due by October 25, 2012.
As of the time of the status conference, no funds are set to be dispersed for at least 30 days. Defendants agreed that if no agreement is reached regarding the common fund, Defendants will notify the Court at least 2 weeks prior to funds being dispersed to allow the Court sufficient time to consider the handling of the funds before they are dispersed.
4. March 2013 Trial - Cases in discovery, trial case selection
Defendants indicated that the September 2012 settlement reduced the number of Minnesota resident/Minnesota filed cases from 32 to 10. Settlement talks are ongoing with respect to 3 or 4 of these cases. With regard to the other 6 or 7 cases Defendants are acquiring updated Plaintiff Fact Sheets and updating depositions. Defendants foresee no problem complying with the November 26, 2012, deadline for filing summary judgment motions in these cases, and expects to be ready for trial on March 5, 2013.
The Court entered a deadline of January 2, 2013, for the parties to submit either an agreement as to which case or cases will be tried in March 2013, or sufficient information regarding the cases for the Court to select trial cases shortly after January 2, 2013.
5. Deficient plaintiff fact sheets
Defendants indicated that in 119 cases Defendants have sent two deficiency letters to Plaintiffs' counsel. After the September 2012 tentative settlement 67 Plaintiff fact sheets remain outstanding. Defendant anticipates sending 59 more additional second deficiency letters by year end.
After the last status conference Defendants submitted a list of cases, along with the respective Plaintiffs' counsel and their addresses, and a draft order to show cause. Due to the September settlement and the possibility of further settlements in the near future, the Court will keep this matter under advisement and take up the need for an order to show cause in any remaining plaintiff-fact-sheet-deficient cases at the next status conference.
6. Forum non conveniens-cases subject to potential transfer, cases for remand and remand order
The forum non conveniens and remand issues have been fully brief by the parties. In light of the September settlement, and the imminent possibility of further settlement which could significantly impact resolution of these issues, the Court will revisit these issues at the next status conference.
August 28, 2012
Status Conference held on August 28, 2012
1. Status of trial case discovery, trial case selection, and trial date
The parties recommended that the Court postpone the October 29th trial date to allow for further trial preparation. The Court ordered a new trial date of March 5, 2013.
The Court entered a summary judgment motion deadline of November 26, 2012, for the remaining cases that were filed in Minnesota and involve Minnesota plaintiffs.
The Court expects to set the hearing(s) for any summary judgment motions regarding these cases in December 2012 or early January 2013. The Court also anticipates deciding by January 1, 2013, which case or cases will be tried on March 5th.
2. Wells Daubert motion
Defendants plan to bring a motion under Daubert challenging Plaintiffs' expert, Dr. Martin Wells. The Court ordered that, if such a motion is filed, Defendant must file it within 45 days.
3. Punitive damages motions
Plaintiffs have filed motions to amend the complaint for punitive damages in six cases. The Court deferred consideration of these motions to allow for more discovery and anticipates ordering briefing on these motions by late November.
4. Deficient Plaintiff Fact Sheets
Defendants reported that there are numerous cases with deficient plaintiff fact sheets. In 95 of these cases, Defendants have sent two deficiency letters to plaintiffs' counsel. In 49 cases, Defendants have sent one deficiency letter to plaintiffs' counsel. In 89 cases, Defendants very recently sent a deficiency letter to plaintiffs' counsel.
The Court will enter an order to show cause for the 95 cases in which Defendants have sent two deficiency letters. Prior to the issuance of this order, Defendants will submit a list of the 95 cases, along with the respective plaintiffs' counsel and their addresses, and a draft order to show cause. Plaintiffs may respond to the draft order submitted by Defendants.
5. Production of Dear Doctor Letter mailing list and identity of third party vendor
Plaintiffs requested the name of the third-party vendor that created a database from which Dear Doctor letters were mailed. Plaintiffs also requested that Defendants produce a copy of a November 2008 list from the database; this list includes the names and addresses of approximately 513,629 doctors who received a Dear Doctor letter. The Court ordered Defendants to produce of a copy of the November 2008 database within two weeks, at no cost to Plaintiffs. The Court denied Plaintiffs' request for the name of the third-party vendor because Plaintiffs failed to demonstrate the relevance of this information.
6. Conditions Precedent to Remand Order
Defendants have submitted a memorandum in support of an order to show cause for cases potentially subject to transfer under 28 U.S.C. § 1404. The Court ordered that Plaintiffs file a memorandum in response within two weeks.
The parties also discussed their respective positions regarding other conditions precedent to the remand order. A written order on these issues is forthcoming.
7. PTO 3
The parties next discussed the amended Pre-trial Order 3 and, specifically, the manner in which Defendants should pay certain sums to participants in the New Jersey litigation. The Court ordered that any attorney who intends to oppose Plaintiffs' brief on this issue and Plaintiffs' proposed amended Pre-trial Order 3 to file responsive papers by September 27, 2012. Any reply is then due by October 4, 2012. The Court also ordered that Defendants give notice to the Court before money is transferred to plaintiffs in the New Jersey litigation or to their counsel; such notice from Defendants must provide adequate time for the Court to consider the handling of such funds before they are dispersed.
8. Trial issues
Plaintiffs raised issues related to the cost of upcoming trials, such as whether the Court will allow the recording of expert testimony. The Court will address these issues closer to trial, most likely in December 2012.
Next Status Conference: October 1, 2012 at 2:00 PM.
August 6, 2012
Status Conference and Motion Hearing held on August 6, 2012
- Defendants' Motion to Prohibit Certain Ex Parte Communications with Treating Physicians [Docket No. 5200]
1. Number of cases pending and Federal/State Coordination
Defendants state that there are 1780 cases pending in the MDL.
1563 cases are open in the New Jersey mass tort litigation. No trials are currently scheduled in the New Jersey litigation, but a status conference is scheduled for August 23 and plaintiffs are expected to be selected at that time.
Two cases are pending in Illinois, and a trial is scheduled to commence in September 2012; a motion for summary judgment is pending.
2. Motion to Prohibit Certain Ex Parte Communications with Treating Physicians
The parties presented their arguments regarding Defendants' motion to prohibit certain ex parte communications with treating physicians. The motion is under advisement and a written order will be forthcoming.
3. Order to Show Cause (Forum Non Conveniens)
The parties will file briefing outlining their positions regarding the propriety of an order to show cause or stipulation for MDL cases filed in Minnesota where the plaintiff resides elsewhere.
4. Proposed Amendment to PTO 3
Defendants have reached a definitive settlement agreement with some of the New Jersey plaintiffs, but Plaintiffs' attorneys report an impasse in their negotiations regarding Pretrial Order 3. Ron Goldser will submit a letter to the Court detailing the disputed issues.
5. October Trial
The parties still have not selected a plaintiff for the next trial, but between six and eight plaintiffs are being screened for selection. The parties will submit an updated list of plaintiffs under consideration to the Court on August 16.
The Court moved the trial start date to October 29.
Next Status Conference: August 28 at 1:00 PM.
June 11, 2012
Status Conference held on June 11, 2012
1. Number of cases pending and anticipated in the MDL and state courts
Defendants state that there are 1787 cases pending in the MDL. The number of cases in New Jersey is fluctuating because of recent settlements. Five cases are currently pending in other state courts.
2. Federal/State Coordination
Several hundred of the New Jersey cases have settled, but Defendants have not yet disbursed any money. Because the same firms represent New Jersey and MDL plaintiffs, some MDL cases are expected to settle as part of these agreements.
Two cases in St. Clair County, Illinois have been consolidated and that trial is expected to commence in September 2012.
3. Rule 59 motion
The parties presented their arguments regarding the plaintiff's pending Rule 59 motion in Straka v. Johnson & Johnson. The motion is under advisement and a written order will be forthcoming.
4. Bond Motion
The parties presented their arguments regarding the defendants' pending motion for stay of execution without supersedeas bond in Christensen v. Johnson & Johnson. The motion is under advisement and a written order will be forthcoming.
5. Substitution of Party Upon Death
Defendants have now served more than sixty statements suggesting death of a party pursuant to Fed. R. Civ. P. 25. Plaintiff's Liaison Counsel noted that he is working to make sure those statements are responded to, and Defendants' Liaison Counsel noted Defendants' intent to object to any untimely motions for substitution.
6. Plaintiff Fact Sheet Deficiencies
Defendants noted for the Court that at least 143 plaintiffs have not provided Defendants with complete Plaintiff Fact Sheets. Defendants further noted that they may ask the Court to issue an order requiring those Fact Sheets to be filed by a certain date to prevent dismissal.
7. Final Pretrial Order and Suggestion of Remand
The parties submitted a draft version of a final pretrial order to the Court but noted there are still numerous contentious issues. The Court encouraged the parties to continue to meet and confer but noted that a hearing on specific issues could be arranged, if necessary.
a. Forum Non Conveniens Cases
Defendants proposed providing the Court with list of the potential forum non conveniens cases so that the Court could issue an order to show cause why the cases should not be transferred.
8. Next Minnesota Trial — Case Selection
Both parties will submit the names of possible plaintiffs for the October trial by early July. The Court will address the selection of a plaintiff at the next status conference.
9. Proposed Amended Pretrial Order 3
Plaintiffs previously submitted a proposed amended Pretrial Order Number 3 but withdrew that proposal in light of numerous objections by non-MDL counsel. MDL and non-MDL counsel have not yet reached a consensus regarding amendment to PTO 3. Plaintiff's counsel suggested briefing was a likely next step.
A settlement conference was scheduled for immediately after the status conference before Magistrate Judge Boylan.
Next Status Conference: July 17 at 9:00 AM
April 4, 2012
Status Conference held on April 4, 2012
1. Number of cases pending and anticipated in the MDL and state courts
Defendants state that there are 1,774 cases in the MDL. New Jersey has 1919 cases pending. Seven cases have been filed in other state courts.
Up to fifty federal cases remain unfiled, but the effect of the statute of limitations on these cases is unknown. No additional state cases are expected to be filed.
2. Federal/State Coordination
The next status conference in New Jersey is scheduled for late April, but no future trial dates have been set.
Two cases in St. Clair County, Illinois have been consolidated and trial is scheduled for September 10, 2012.
A settlement conference was held on April 4, 2012 before Magistrate Judge Boylan. No settlement was reached, but the parties will meet with Judge Boylan again tomorrow.
a. Amended Pretrial Order 3
Plaintiffs have submitted a proposed amended Pretrial Order Number 3. The Court directed that any objections to that proposed order be made by April 23.
b. Discovery to be Completed in MDL
Plaintiffs have identified additional people who they would like depose before a remand order issues. The Court directed Plaintiffs to turn over a list of potential deponents to Defendants.
c. 1404 Motions
- 344 cases were transferred to this Court for the purposes of discovery and would be eligible for remand
- 38 cases were filed by Minnesota residents in this Court and would not be eligible for remand
- 1372 cases were filed in Minnesota but the plaintiff resides elsewhere; these cases would be eligible for transfer under § 1404.
d. Court of Appeals decision in Schedin
The Court indicated that, if other aspects of the case were ready for remand, it would not wait until the Eighth Circuit ruled on the appeal of the Schedin case before issuing a remand order. Because a ruling by the Eighth Circuit may be delayed, it would be inconsistent with this Court's MDL responsibilities to wait for a decision in that case.
e. Other Issues
The parties noted that they continue to meet and confer on other issues related to remand.
5. Schedin Rule 60 motion
Defendants filed a Rule 60(b) motion and supporting memorandum in March. Plaintiffs' response is due April 23.
6. Straka New Trial Motion
Plaintiffs have filed their motion and supporting memorandum. Defendants' response is due soon. A hearing on this motion is expected in late May.
7. Future Trial
As ordered in Pre-Trial Order Number 12 (Docket No. 4092), the parties are conferring to select additional bellwether trial cases. The list has not yet been submitted by the parties.
The Court has set aside three weeks for another bellwether trial, beginning October 22, 2012.
Next Status Conference: May 15, 2012 at 9:00 AM.
November 29, 2011
Status Conference held on November 29, 2011
1. Number of cases pending and anticipated in the MDL and state courts
Defendants state that there are 1678 cases in the MDL; 4 additional cases are pending transfer; 43 cases have been dismissed. New Jersey has 1975 cases pending. The next status conference in New Jersey is scheduled for December 13, but no future trial dates have been set.
2. Settlement Conference: November 29, 2011
A settlement conference was held on November 29, 2011 before Magistrate Judge Boylan. No settlement was reached.
The Court indicated additional issues related to remand or summary adjudication would not be included in future status conference agendas until after the completion of the third bellwether trial.
3. Party Name Change
The parties indicated that Defendant Ortho-McNeil-Janssen Pharmaceuticals, Inc. has recently changed its entity name. The parties will submit a proposed order stipulating to an amendment to reflect this change.
4. Straka trial
The trial date is set for January 3, 2011.
The parties have mutually agreed to alter the Court's Scheduling Order (Pretrial Order #12). The parties will provide the Court with an updated schedule.
The parties noted they are conferring on several issues for the upcoming trial:
a. Production of additional personnel files (The parties indicated at least one additional file will be provided to the Court for in camera review. Plaintiffs indicated that after the witness lists are exchanged, they may request production of additional files.)
b. Disclosure of sales representative call notes and the availability of these representatives for depositions
c. Availability of data from Dr. Wells
d. After the medical exam of Mr. Straka: timing of report production and deposition of the examining doctor
e. Hours limit for each side. The schedule will be discussed at the next status conference.
5. Videotape of Trial Testimony
Plaintiffs request videotaping of generic expert witnesses during the trial for use in future trials. The Court noted that cameras in the courtroom would violate Judicial Conference policy but will determine if any exceptions apply.
6. Additional Case Selection
As ordered in Pre-Trial Order Number 12 (Docket No. 4092), the parties are conferring to select additional bellwether trial cases. The list has not yet been submitted by the parties.
Next Status Conference/ Motion hearing: December 27, 2011 at 1:30 pm
October 25, 2011
Status Conference held on October 25, 2011
1. Number of cases pending and anticipated in the MDL and state courts
Defendants state that as of October 14, 2011, there are 1483 cases in the MDL; 58 additional cases are pending. New Jersey has 1942 cases pending, and there are 5 cases currently pending in St. Clair County, Illinois (although some may have multiple plaintiffs).
2. Federal/State Coordination
The first New Jersey trials concluded with verdicts for the defense. The combined trial for two plaintiffs lasted approximately six weeks. The New Jersey court has not yet set further trial dates; a status conference is upcoming. The next trial is also expected to have two plaintiffs.
3. Settlement Conference: November 29. 2011
A settlement conference is scheduled before Magistrate Judge Boylan on November 29, 2011.
4. Straka trial
A date for Mr. Straka's continued deposition has been agreed on by the parties. The parties agreed to extend the deadline for disclose of experts to tomorrow.
New experts have already been disclosed by both sides. The parties anticipate their testimony will require additional time at trial. The parties will confer on the hours limit for each side, and their suggestions will be discussed at a future status conference.
The parties are conferring on the availability of data from Dr. Wells.
The parties are continuing to confer on the dismissal of claims and of entities other than Johnson & Johnson and Ortho-McNeil-Janssen Pharmaceuticals, Inc. The Court asked the parties to clarify these issues in the next couple of weeks.
5. Additional Case Selection
As ordered in Pre-Trial Order Number 12 (Docket No. 4092), the parties are conferring to select additional bellwether trial cases. The current list—which will be narrowed further—consists of 24 plaintiffs. The Court noted that the list submission date of November 14, 2011 may be extended upon the request of either party.
6. Further Review of Kahn, Yee, and Noel personnel files
Plaintiffs remain concerned that there is additional relevant material in the personnel files of Kahn, Yee, and Noel. Defendants agreed to release the entire personnel files to the Court for review. The Court will review the personnel files in camera to determine if additional portions are relevant.
7. Original Package Inserts
In light of the submission of additional original package inserts to the New Jersey court, Plaintiffs requested Defendants provide them with all of the available original package inserts. Because only one original of each type of package insert is available, Defendants will retain possession of the originals. The Court ordered that exact copies of all of the original inserts be provided to Plaintiffs right away and that Defendants make the originals available at trial.
8. Transcript submission for Schedin appeal
Defendants wish to submit transcripts currently filed in the MDL for their appeal of Schedin. The Court Reporter will re-file those transcripts in the Schedin file.
Next Status Conference: November 29, 2011 at 4:00 PM
October 12, 2011
Telephone Conference held on October 12, 2011
The Court held a phone conference regarding:
1. Whether plaintiff is required to comply with Rule 26(a)(2)(C) with respect to treating physicians he has designated as experts - The Court ordered plaintiff to disclose as required by the Rule;
2. Whether defendants will be allowed an updated deposition of Mr. Straka - The Court will allow limited deposition of Mr. Straka;
3. Production of original Levaquin package inserts at trial- Plaintiffs should receive what was received in the New Jersey trial;
4. Status of the Court's in camera review of personnel file - Written order forthcoming.
September 14, 2011
Status Conference held on September 14, 2011
1. Number of cases pending and anticipated in the MDL and state courts.
Defendants state that as of September 12, 2011, there are 1461 cases in the MDL; 1423 cases are pending. New Jersey has 1900 cases pending, and there are 51 cases in other state courts.
2. Federal/State Coordination
The New Jersey trial has begun. Opening statements were heard on September 6. The trial is anticipated to last until mid-October. The trial is being videotaped and is available live online. No additional cases are currently scheduled in New Jersey.
Individual plaintiff discovery is ongoing in Illinois, but no trial date has been set.
3. Third Bellwether Trial date—January 3, 2012
The trial date has been moved from November 14, 2011 to January 3, 2012. The trial is expected to last three weeks. The Court will issue an order shortly regarding which plaintiff's case will be tried.
Once this plaintiff is selected, the parties will meet and confer before proposing a schedule for the submission of motions in limine. Counsel also agreed to meet and confer regarding additional Defense employee personnel files. Defendant's counsel noted they are working to identify a new generic expert. The parties agreed to confer on disclosure of experts before the third Bellwether trial. The parties also agreed to meet and confer to resolve issues of updated plaintiff depositions and independent medical exams after the next plaintiff is selected.
4. Additional status conference.
If the parties feel that an additional status conference (on October 4 or 5) would be helpful, a request should be submitted as soon as possible after the selection of the next plaintiff.
Next status conference: October 25, 2011 at 1:30 p.m.
August 10, 2011
Status Conference held on August 10, 2011
1. Number of case pending and anticipated in the MDL and state courts MDL 1314; NJ: 1831; 45 other state court cases, 39 in Illinois (in discovery).
2. Federal/State Coordination
The New Jersey trial is still scheduled to start on August 29, 2011 and is anticipated to last through September or October. The parties believe the trial will be timed, with plaintiffs given 45 hours. This Court has not sent out to NJ copies of the orders issued here, but the NJ Court has been advised of the website and the orders available there.
3. 1404 fact discovery motion
Defendants brought a motion to move forward with fact discovery on cases subject to transfer after negotiations between counsel failed. Defendants are not making a motion to transfer, they simply want to do discovery. Three are partially discovered, 10 all have no discovery, 6 are deceased plaintiffs. Defendants want to do discovery early so as to complete by the end of the year. Plaintiffs argue the defendants should have one opportunity to depose the prescribing doctors. They argue discovery is premature due to the MDL order and they argue interrogatories would be a better manner to get the information necessary for § 1404. The Court DENIES the motion, due to time considerations. At the close of third bellwether trial, defendants may refile the motion if Counsel can not agree to a plan to complete the discovery.
4. Third Bellwether Trial date—November 14, 2011
The trial date has now been moved from November 7, 2011 to November 14, 2011. Five cases exist in Phase 1: Mraz, Martinka, Straka, Johnson, and Olson. Plaintiffs indicated Martinka will be dismissed and Mraz's counsel has a scheduling conflict. Defense does not want to consolidate the remaining three due to different ages of plaintiffs, different prescription dates, and different indications warranting the prescriptions. Parties will submit letters regarding which plaintiff they believe is appropriate after defendants have been able to depose Straka's prescribing physician.
Plaintiffs have requested of defendants and defendants object to discovery on the employment files for all the personnel who have testified in the previous trials. Plaintiffs desire the files for the purposes of cross-examination on job performance. Defendants argue that for those who are testifying via video, the files are not useful for cross examination. Some of the other personnel were not in sales and so the files are not relevant for the expressed purpose (to address the manner in which Levaquin was marketed). Counsel agrees to discuss further and see if they can reach a compromise related to live witnesses. The Court believes those sales representatives in the particular case chosen for the next trial may be relevant. Counsel will meet and confer.
5. Phase 3 Discovery, MN filed, MN resident cases
Counsel will discuss Phase 3 discovery in conjunction with discovery for 1404 (as discussed above).
No action taken.
Next status conference: August 30, 2011 at 9AM.
July 13, 2011
Status Conference held on July 13, 2011
1. Number of case pending and anticipated in the MDL and state courts
In total, over 3000 cases.
2. Federal/State Coordination
The New Jersey trial is still scheduled to start on August 29, 2011 jury and opening statements are anticipated to last through September or October. No other court with a case pending. Two plaintiffs in the New Jersey trial with different prescription dates and symptoms, one involves steroids and the other not. Many of the counsel from the MDL are involved on the plaintiff's side, but not on defense side.
3. Third Bellwether Trial date—November 7, 2011/Phase 2
Must pick bellwether trials and deal with 1404 motions. Some discovery has occurred on the Minnesota resident/filed cases. There are twenty Phase 3 Minnesota filed/resident cases. Counsel only have fact sheets on those cases. Plaintiffs want to include those in the next bellwether group—each side pick 5 for further discovery and then pick the next 3-5 that will be tried. Defendants want to pick from the Phase 1 and 2 cases, not add more from Phase 3 and stick with November trial date.
Defendants want to reconsider any consolidation, arguing the cases are too fact specific. Plaintiffs want consolidation to get through the volume of cases and start to move away from the concept of bellwether. The Court believes it is still in the bellwether phase. The Court is inclined to keep November date, with a focus on the 5 cases in Phase 1 and 2, the court will hear arguments at the next status conference if the plaintiffs are similar enough to be efficiently consolidated and the choice of plaintiff.
Of the change of venue cases, 3 are partly prepared: Grinner, Parr, Schaffer. There are 10 other cases in Phase 2 that are non- Minnesota resident but Minnesota filed. The Court previously indicated 8 cases for discovery. Plaintiffs expressed some concerns about discovery for these cases for the purpose of determining the convenience of the witnesses in terms of time and resources. Plaintiffs wants limited discovery for 1404 purposes. The parties will confer.
4. Motion for Reconsideration: Orders re Waymack/Blume Testimony
Defendants will send a letter regarding reconsideration of the Waymack and Blume Daubert orders in light of the recent Supreme Court decision in PLIVA.
Next status conference: August 10, 2011 at 11AM.
April 27, 2011
Status Conference held on April 27, 2011.
1. Federal/State Coordination
Trial date in New Jersey is still set for late Aug/early September. Two cases will be tried together.
2. Schedin post-trial motions
The Court has approved the Schedin post-trial motion schedule and will determine if it needs to have a hearing on the bill of costs after review of the briefs.
3. Christensen trial
The Court will issue Pretrial Order 11 as submitted, rename it Trial Notice and Pretrial order 11, and add in the date for the last pretrial conference of May 26 at 1 pm. The parties discussed whether plaintiffs could take the depositions of district sales managers. Defendants objected on the basis that fact discovery is closed. The Court advised the defense to determine who the sales representatives were at the time Christensen was prescribed Levaquin and suffered injuries such that if there was clearly one person in supervision, the Court would consider allowing the deposition to be taken. Once the employment files of the sales representatives are produced, the district managers involved and the relevance of their potential testimony may be more clear. The admissibility of the employment files of the sales representatives was discussed but further discussion will be held after the contents of the files are examined. Defendants are working on production of the sales aids as well. Parties have agreed to the video depositions of plaintiff, plaintiff's wife and doctor, and one other fact witness.
The parties discussed the applicability of the Court's rulings—e.g. Daubert motions, motions in limine, etc.—from the Schedin trial to the Christensen trial. Plaintiff proposes incorporating those rulings by reference unless a specific objection needs reiteration or a new objection arises based on the facts of the case. Defendants argued there may be new law, new arguments, and different facts making that suggestion untenable. The Court deferred the discussion to a later date when the specifics of the motions would be more clear to the parties but noted that if an issue was the same or substantially similar to one raised in the Schedin trial the Court would likely rule the same way making new motions cumbersome. The Court did agree to hold hearing on the motion to amend for punitive damages if requested by either party.
Plaintiff raised a concern that one expert witness, Martyn Smith, was going to be out of the country and unavailable for trial and requested to be able to read his testimony from the Schedin trial into the record at the Christensen trial. Defense objected on the basis that they had the right to cross examine given the different facts of this case. A determination on the subject was deferred until plaintiff decides if it wants to have a different expert testify on the subject matter of the Smith testimony.
Parties are working on a dismissal of the additional defendants in the case and will present a stipulation to the Court prior to trial. The parties discussed how to sever the Christensen case from the other plaintiffs listed on the case to minimize any potential juror confusion. The parties will confer and the topic will be discussed at the final pretrial conference. The dismissal of additional claims is also under discussion by the parties.
The parties discussed the scope of the independent medical exam ("IME") of Christensen, scheduled for May 5th in Worthington. Plaintiff argued that the doctor should be limited in the types of questions he asks of Christensen so that the IME does not become a deposition. The parties agreed to have the IME audio taped and the Court would address any potential questions beyond the scope of a proper IME as necessary.
Parties agreed to meet and confer regarding stipulated medical bills that were related to Christensen's taking of Levaquin. Additionally, the parties are working on non-duplication of exhibits for the purposes of the record such that each exhibit has only one official exhibit number at trial.
4. Phase 2 cases
The parties discussed how to proceed on discovery for the Phase 2 cases and those cases that may be subject to a remand motion. Plaintiff proposed a shift of focus to discovery on cases for remand over those for Phase 2, with an eye towards widening the pool of bellwether cases. Currently, there are four or five cases of Minnesota residents who filed in Minnesota in Phase 2. Defendants agreed the pool of potential bellwether cases should be larger, and there were thirteen total cases of Minnesota residents who filed in Minnesota, but did not want to shift the discovery focus at this time. The Court directed the parties to meet and confer so that of the remaining cases, not in Phase 1 or 2, the parties agreed on the pool of potential cases. The Court stated that a group of four is likely too small but thirteen would be too large. The parties agreed to work together to identify a pool of appropriate cases for continued discovery.
Parties stated there was nothing ripe in regards to remand or venue change motions.
6. Next status conference: May 26th (Date of Christensen pretrial conference) or sooner by request of the parties.
April 11, 2011
Status Conference held on April 6, 2011.
1. Federal/State Coordination
The New Jersey trial is now scheduled to start on June 20, 2011 and anticipated to last four to six weeks. There is a possibility that the trial will be moved to fall but the Court determined that maintaining a start date for the next bellwether case of May 31, 2011 was appropriate. Counsel will advise if the New Jersey date changes.
Defendants have filed their post trial motions. Plaintiffs have 45 days to respond. Defense will then have 21 days for reply. A hearing on the motions was scheduled for July 7, 2011.
3. Second Bellwether Trial
After lengthy discussion, the defendants chose Calvin Christensen as the second bellwether plaintiff. The Court determined, after review of the doctor's letters and depositions, that Mr. Christensen could assist in the preparation and prosecution of his case and could attend at least minimally when his presence was necessary. The Court acknowledged that attendance posed some difficulties for Mr. Christensen and noted that the Court will make every accommodation possible to minimize any hardship. The parties are to meet and confer regarding scheduling deadlines.
4. Discovery Issues / Phase II cases
The parties will meet and confer regarding discovery in the three Phase II cases involving Minnesota plaintiffs—Mroz, Olson, and Straka. The parties discussed conducting minimal discovery on the 30 cases involving non-Minnesota residents who filed in Minnesota for the purposes of initiating 1404 motions. Defendants requested depositions of the parties, the prescribers, and the treating physicians. The parties agrees to meet and confer on the issue and the Court will defer ruling until a later date on the discovery scope and schedule.
Plaintiffs' counsel requested mediation with a Magistrate Judge before remand was determined. The Court will defer a decision until the parties can meet and confer on the issue.
6. Release of trial exhibits
Parties discussed whether an agreement had already been reached between Mr. Goldser and Ms. Van Steenburgh on the status of confidential documents. As Ms. Van Steenburgh was unable to attend the status conference, the Court ordered a conference within the next week to be attended by Mr. Goldser and Ms. Van Steenburgh to determine the disposition of confidential documents and release of the punitive damages order.
* The next status conference is scheduled for April 27, 2011 at 2:00 p.m.
March 16, 2011
Status Conference held on March 16, 2011.
1. New Jersey: New Trial Date
The parties reported there was discussion of moving the trial date for the New Jersey Levaquin trial due to delays caused by a current trial. The parties will let the Court know as soon as they have more definitive answers as to whether the New Jersey trial will be rescheduled and when. The Court will hold the current start date for the next bellwether trial of May 31, 2011.
2. Second Bellwether Trial
In response to plaintiffs' production of affidavits from the remaining Phase I plaintiffs and their doctors as to their conditions, the parties agreed that Kirkes was not suitable for the next bellwether case. The Court will allow defendants to depose plaintiffs Martinka and Christensen and their doctors to determine if either could attend some portion of the trial and assist their counsel. The Court ordered that said discovery occur within the next two weeks so that the matter can be discussed at the next status conference meeting and the next plaintiff for trial determined. The Court deferred discussion of IME for a later date.
3. Post-Trial Motions
Defendants stated they would need no more time than indicated by the local rules for the filing of post-trial motions. The Court will presume the normal briefing schedule applies for responses and replies unless either party has some reason for deviation, which the Court will consider at that time.
4. Discovery Issues / Phase II cases/ Remand Issues
Of the 34 plaintiffs remaining in Phase II, the parties agreed to begin discovery of the 3 Minnesota plaintiffs. Furthermore, the Court ordered defendants to come to the next status conference meeting with a preliminary report for the remaining 31 plaintiffs in regards to defendants' plans to file 1404a or Lexicon motions.
5. Trial exhibits
This agenda item was placed on the agenda by Ron Goldser who was unable to attend so the Court deferred discussion on this topic and the publication of the punitive damages order until the next status conference.
* The next status conference is scheduled for April 6, 2011 at 2:00 p.m. This will be a telephone conference.
March 2, 2011
Status Conference held on March 2, 2011.
1. Number of case pending and anticipated in the MDL and state courts The parties reported there had been little change in the number of cases since the last status conference. Defendants said they had been served 990 in the MDL, and served a total of 2526. New Jersey alone accounts for 1512 of those cases.
2. Federal/State Coordination
The New Jersey trial is still scheduled to start on April 11, 2011 and anticipated to last four to six weeks. The parties expressed some concern over the Court's start date of May 31, 2011 but all thought it was still possible. Defendants have a case starting in California on September 12, 2011 but that date may likely change. Plaintiff's attorney Saul may have some conflicts with cases in New Jersey in the upcoming year.
Both parties are waiting on final judgment to be entered to begin the post-trial motions and desire to follow the local rule on timing. All agreed to confer on timing after judgment was entered by the Court. If they cannot agree, each side will propose a schedule and present to the Court.
4. Second Bellwether Trial
All parties agreed that defendants should be allowed to choose the next plaintiff for trial from the Phase I plaintiffs, however, plaintiffs' attorneys stated there were some health concerns about the remaining 5 plaintiffs from the Phase I group and so they requested that Johnson be the next plaintiff since she is well enough to attend the full trial. Defendants want some verification as to the health issues of the other plaintiffs. The Court ordered plaintiffs to submit doctor's letters or reports on the remaining Phase I plaintiffs and what their medical limitations are in the next 10 days. If additional discovery is needed after receiving those letters, the Court will so order. The Court stated the decisive issue will be whether they are well enough to comprehend what is happening and at least offer their own testimony, but not whether they can attend the entire trial.
5. Discovery Issues / Phase II cases/ Remand Issues
All parties discussed missing fact sheets and stated the missing sheets should be procured in short order. There was also some discussion about Phase II discovery and the parties agreed to meet and confer about remand issues and Phase II discovery and report back to the Court since they had yet to do so.
There are thirty five plaintiffs in Phase II. Five are deceased. Parties discussed that some will be subject to statute of limitations dismissal, some subject to remand motions. The parties agreed that discovery was important since the plaintiffs were getting older. The Parties agreed to meet and confer.
* The next status conference is scheduled for March 16, 2011 at 2:00 p.m. This will be a telephone conference.
January 28, 2011
Status Conference held on January 28, 2011.
- Second Bellwether trial tentative start date May 31, 2011.
- Parties to discuss plan for remanding cases.
- Next Status Conference March 2, 2011 at 1:00pm.
September 10, 2010
The Court held a formal status conference in In re Levaquin Products Liability Litigation, No. 08-md-1943, on September 10, 2010. The topics for the status conference included (1) the number of cases pending and anticipated in the MDL and state courts; (2) federal/state coordination; (3) Motion on the privilege log; plaintiffs' Motion to Compel the Pascale Deposition Transcript; scheduling for the upcoming Motion to Protect Confidential Designation of Certain Documents File and the Motion to Amend Complaint and Add Demand for Punitive Damages (4) agenda for the September 28th hearing; (5) agenda for the October 6th Daubert hearings; (6) Schedin Proposed Pretrial Order and Trial Schedule; and (7) scheduling the second bellwether trial date.
1) Currently in the MDL, there are 798 cases. 21 are being transferred. There are 903 served cases in New Jersey. There are 29 cases in other states: 1 in California; 1 in South Carolina; 1 in New York; 24 in Illinois with multiple plaintiffs in each case—defense counsel believes the plaintiffs number in the hundreds; 1 in Mississippi. Over all, there are close to 2600 plaintiffs who have served. Plaintiffs' counsel indicated that there are thousands of cases that have yet to be filed or served and anticipates between 3,000-5,000 plaintiffs in total.
2) In New Jersey, the discovery deadline is November 15th, 2010 and the trial date has been pushed back to April 4th, 2010.
3) Plaintiffs' counsel noted that the Court has the appeal on the privilege log Motion under advisement. The Court then heard arguments on the Motion to Compel (Docket No. 1714). During argument, plaintiffs' counsel described their interest in reviewing the transcript of the deposition of Walter Pascale in an employment discrimination case against defendants from ten years prior. Defense argued it had reviewed the transcript and there was no relevant information in the transcript to the present litigation. Defense counsel offered an in camera review of the transcript so the Court could affirm their determination. The Court granted the Order to Compel without in camera review. Defense counsel asked for time and permission to redact from the deposition any personal information relating to Mr. Pascale or other litigants in that case and the Court granted the request. Regarding the upcoming hearing on the Motion to Protect Confidential Designation of Certain Documents File, the plaintiffs agreed to have a memorandum in by September 27th, 2010. Defense did not anticipate a reply but asked to reserve the right to reply. The Court scheduled hearings on the Motion for October 6th, 2010 at the Daubert hearings.
4) The September hearing is for argument on the Motion to Amend Complaint and Add Demand for Punitive Damages and the Motion for Judgment on the Pleadings. The parties agreed that the plaintiffs' reply brief on the Motion to Amend would be due on September 22, 2010. As for the Motion for Judgment on the Pleadings, defense filed six identical Motions and the plaintiffs' plans to file a response to the reply brief by the 15th of September.
5) The agenda for the October 6th hearing will be the Daubert hearings on Seeger, Layde, Rodricks, Zhanel, Waymack, Holmes, Smith, Zizic, Blume, and regarding Intent and Motivation. Counsel have come to an agreement on Wells—to remove paragraph 34— and Winkleman—to not use for the Schedin case but allow for all others—so those Motions won't be heard. There was some discussion between the parties about whether the Holmes hearing could go forward on the 6th based on some missing documents. Counsel agreed to work to identify any missing documents and shorten deadlines so that Holmes could be heard the same day as the other Daubert hearings.
6) The Court moved the Schedin trial to November 15th with three weeks of the calendar cleared. Counsel will submit a new Pretrial Order. Counsel agreed to exchange an exhibit list on the 1st of October and they agreed to submit one combined list of those exhibits on which they agree and then separate lists for any other exhibits. Objections on exhibits will be due on the 15th. The Court set the trial schedule for 11 days of trial, with 66 hours of testimony. All parties agreed to a trial clock. Plaintiffs' counsel requested the time split be 38 hours for plaintiff and 28 hours for the defense due to the burden of persuasion. The defense requested 33 hours each. The Court agreed to decide the issue after seeing the new Pretrial Order with the schedule changes at a later date. Wednesday, November 3rd at 2:00PM was set for Motions in Limine. The parties discussed what the status of last minute depositions and evidence in other trials would be for the Schedin case. The Court decided to deal with those issues if and when they arose rather than make a pretrial decision on late evidence and exhibits. The Court noted that voir dire would only be conducted by the Court but that counsel could submit a questionnaire to be considered by the Court in that process. Defense counsel noted they did not plan to have a corporate representative at counsel table during the trial.
7) Due to the change in the New Jersey trial date and conflicting schedules of the attorneys, a decision for the scheduling of the next bellwether trial was moved to the next scheduling conference.
August 3, 2010
The Court held a formal status conference in In re Levaquin Products Liability Litigation, No. 08-md-1943, on August 3, 2010. The topics for the status conference included: (1) the number of cases pending and anticipated in the MDL and state courts; (2) federal/state coordination; (3) motions relating to the privilege log; (4) bellwether case status; and (5) the status of discovery.
(1) Counsel reported that there are 770 pending cases in federal court, most before this Court, and 573 state cases. Counsel reported that 551 cases are in state court in New Jersey. Of the remaining 22, at least one is in California, one is in Texas, and many are in the Southern District of Illinois.
(2) The New Jersey court has selected some cases for the bellwether trials, and scheduling for case specific discovery is underway. Generic depositions will begin in September, and the depositions will be cross-noticed with this litigation. Counsel reported that the trial is still on track for January.
(3) Counsel reported that the documents ordered released by Judge Boylan have been turned over to opposing counsel and an appeal from that order has been filed. Counsel reported that Plaintiffs would file no further responses on the issue.
(4) Counsel addressed the bellwether cases to discuss trial scheduling. Counsel addressed a variety of pending motions, including Daubert motions, motions for judgment on the pleadings, a motion to amend to add punitive damages, and motions to dismiss various claims. The Court informed counsel that evidentiary hearings would likely not be scheduled unless requested (though if requested, would likely be granted). The Court stated that it would be prudent to hear the Daubert motions all at once since many raise similar issues. Counsel reported that Holmes would be the only outlier, otherwise all motions and depositions would be completed by the end of September. The Court scheduled the hearing for October 6th. The Court scheduled a hearing on the motion to amend the complaint to add punitive damages, and for judgment on the pleadings for September 28th. Counsel addressed the timing for the start of the trial, suggesting November 8th, the date the Court provided to begin voir dire and opening statements. The Court asked for written jury questionnaires and stated that the Court would accept proposed questions for jurors, but would likely conduct voir dire itself. Counsel stated that they expected the trial to last approximately 12 days and to conclude before Thanksgiving. Counsel reported that there are three depositions scheduled for August 26th. Defense counsel reported that they have 2-3 depositions scheduled in September in the New Jersey litigation, and they anticipate more. Defense counsel stated that after the initial bellwether trial they would like the New Jersey state court trials to proceed next. Counsel reported that they expect a trial date in February or later in the New Jersey cases.
(5) Counsel reported on the status of production of documents which were compelled to be produced by the Court. Plaintiff's counsel indicated that the only issue remaining re: compelled discovery was in the West v. McNeill case. Counsel further reported on the status of plaintiff's third party subpoenas, stating that all Aventis documents have been produced. Counsel reported that they are still negotiating with CommonHealth about how many documenst they have and will search, and they expect that will be resolved by the end of the week. DesignWrite will provide 75 boxes of documents, the review of which will begin next week. Counsel are still waiting for a response from the Falk Group. Plaintiff's counsel sought to prevent defense counsel from taking the deposition of Mr. Keith Altman, which the Court will allow despite Plaintiff's argument that Altman was consulted only as a non-testifying expert for consultative purposes. Counsel also indicated that Daubert motions relating to Dr. Zizic have already been filed. Counsel reported that they will speak amongst themselves to determine who has submitted a Fact Sheet and will ensure that they each receive each others Fact Sheets.
The next status conference is scheduled for September 10, 2010, at 10:00 A.M.
June 22, 2010
The Court held a formal status conference in In re Levaquin Products Liability Litigation, No. 08-md-1943, on June 22, 2010. Appearing on behalf of plaintiffs were Ronald Goldser, David Cialkowski, Lewis J. Saul, Kevin Fitzgerald, Tim Becker, and Joe Friedberg in person, and Caia Johnson, Brian McCormick, Douglas Whipple, Charles Johnson, and Mike Miller by telephone. Appearing on behalf of defendants were John Dames, Todd Vinson, and Tracy Van Steenburgh. The topics for the status conference included (1) defendants' motion for summary judgment as to plaintiff Karkoska [Docket No. 726] (2) the number of cases pending and anticipated in the MDL and state courts; (3) federal/state coordination; (4) status of the privilege log motion; (5) proposed pretrial order 8; (6) bellwether case status; and (7) discovery status.
(1) The Court heard oral argument on the Karkoska summary judgment motion and plaintiff's motion to strike and took the matter under advisement. A written order is forthcoming.
(2) Counsel reported that defendants have been served in 471 federal cases and 383 state cases. 366 of the state cases are in New Jersey. The remaining state cases are in Madison and St. Clair Counties in Illinois, and one new state case has been filed in San Mateo County, California.
(3) In New Jersey, the court is continuing to proceed with a January 2011 trial date for its first bellwether trial. The New Jersey court has a status conference scheduled for June 30, 2010. Counsel reported no significant progress in Madison County.
(4) Counsel reported that Magistrate Judge Boylan contacted defense counsel about a potentially misplaced document. Magistrate Judge Boylan has not yet ruled on the motion.
(5) Counsel reported that they are negotiating regarding the defendant fact sheets and the plaintiff fact sheets to be referenced in proposed pretrial order number eight and potential deadlines and consequences for failure to provide fact sheets. The Court directed the parties to wrap up those negotiations so that the order could be finalized and issued.
(6) Counsel reported that discovery is continuing in the bellwether case. Counsel reported on the status of depositions in the individual cases. Defendants have identified 22 fact witnesses for plaintiffs, including the plaintiffs. Plaintiffs have removed one fact witness from their fact witness list in the Christensen case, and that deposition was cancelled. Plaintiffs recently identified three additional fact witnesses that plaintiffs may remove from their fact witness list, and those depositions will not need to be scheduled. Of the remaining 18 fact witnesses, five have been deposed, and six depositions are scheduled. The seven remaining depositions are of three spouses, two podiatrists, one physician, and one physical therapist.
(7) (a) Discovery Review of Other Individual Litigation. Counsel reported to the Court on the discovery review of other individual litigation. Defense counsel reported that they had followed up on the cases listed in the motion to compel and that they anticipated providing plaintiffs' counsel with a report of their findings. (b) Document Production Follow-Up from Meet and Confer. Plaintiffs' counsel reported that defense counsel had indicated that document production had been completed or was forthcoming shortly regarding the patent case sweep, redacted financial documents, privilege log production, and the "Omnicare" documents. Plaintiffs counsel indicated that they intended to bring a motion about rebates and kickbacks. Plaintiffs counsel indicated that they had located a document authored by Walter Pascale, a former employee of defendants, but that they were still looking for Pascale's deposition, which had been taken approximately four or five years ago. Defense counsel stated that they were waiting to hear back from Sidley Austin, the firm that may have represented defendants in the matter where the deposition was taken. (c) Plaintiffs' Third-Party Subpoenas. Plaintiffs' counsel reported that they have received responses from some of their third-party subpoenas. Aventis has produced documents and plaintiffs have taken the deposition of Drew Levy, but plaintiffs are now seeking to depose Dr. Dai. Excerpta Medica's attorneys have been in contact with plaintiffs' counsel regarding their involvement with Levaquin and there are not very many documents or projects between Excerpta and defendants regarding Levaquin. DesignWrite will be producing 50 to 100 boxes, and plaintiffs' counsel anticipates taking depositions of DesignWrite people. Plaintiffs' counsel has obtained a list of CommonHealth's projects since 2005 and has requested a list of Levaquin-related projects prior to 2005. Plaintiffs and CommonHealth are still working on the issue of pre-2005 projects. Plaintiffs' counsel has issued a subpoena for Falk Group and are still waiting to hear from someone on behalf of Falk. (d) Experts. Plaintiffs' counsel reported that most expert depositions have been taken, but there will be some follow-up with Dr. Zizic on case-specific testimony. The deposition of defendants' case-specific expert is scheduled for July 1, 2010. The deposition of plaintiffs' expert on warnings is scheduled for July 9, 2010. The deposition for defendants' earnings expert is scheduled for July 23, 2010, and the parties are in the process of scheduling a deposition fro Dr. Segreti. Plaintiffs anticipate that they will be able to make the July 30, 2010 deadline for Daubert motions in most cases, but that they may need extensions for a couple of them. Defense counsel also indicated that they may need to request a brief extension. (e) Case-Specific Discovery. Depositions of plaintiffs' fact witnesses are discussed in part (6). Defense counsel is in the process of redacting files related to the Med Watch investigation to comply with HIPAA regulations. After the redactions are complete, defense counsel will inform a particular plaintiff's counsel that a particular redacted file is that plaintiff's file. Defense counsel expressed a desire to continue with scheduling depositions for Phase II discovery in the same orderly progression as in Phase I. Plaintiffs' counsel expressed concern that it would be premature to go forward in light of bellwether trial preparation. The Court directed the parties to keep the item on the agenda.
The parties scheduled the next status conference for August 3, 2010, at 1:30 pm in Courtroom 13E.
May 3, 2010
The Court held a formal status conference in In re Levaquin Products Liability Litigation, No. 08-md-1943, on May 3, 2010. Appearing on behalf of plaintiffs were Ronald Goldser, Kevin Fitzgerald, Yvonne Flaherty, Troy Giatras, and Caia Johnson in person, and Brian McCormick by telephone. Appearing on behalf of defendants were John Dames, William Robinson, William 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) federal/state coordination; (3) status of the privilege log motion; (4) plaintiffs' motion to compel; (5) the Karkoska summary judgment motion; (6) proposed pretrial order number 8; (7) bellwether case selection; and (8) discovery status.
(1) Defense counsel indicated that the defendant has been served in 410 federal cases and 240 New Jersey state court cases, with seven additional state court cases, four of which are in Illinois. Defense counsel also indicated that the cases in Madison County, Illinois are being severed, which will result in a total of approximately twelve cases in Illinois state courts. Plaintiffs' counsel indicated that the website for the New Jersey state court stated as of April 21, 2010, that there are 311 cases there. The discrepancy between the website and defense counsel's number may be attributable to a time lag between filing and service of the defendant.
(2) The New Jersey state court has stated that it will have its first bellwether trial in January 2011, but the court has not yet set a specific trial date. Plaintiffs' counsel indicated that the New Jersey state court has not yet decided whether the first case will be a single-plaintiff case or a multiple-plaintiff case. Defense counsel added that the New Jersey state court has indicated a preference for a single case for the first trial. The court has selected eight cases for discovery. Four of the eight involve New Jersey plaintiffs, and the remaining four involve New York plaintiffs. Seven of the eight are male, and half are over 60. All of the eight discovery plaintiffs have single Achilles tendon ruptures. Four had respiratory infections, two had urinary tract infections, one had a fever, and the presenting cause for the remaining discovery plaintiff is not currently known. Prescription dates range from early 2002 to mid-2008. The parties plan to proceed with depositions of the plaintiffs and prescribing doctors. The next status conference in New Jersey state court is scheduled for May 18, 2010.
(3) Magistrate Judge Boylan has issued an order regarding the privilege log motion. Defense counsel will provide the documents and a memorandum of argument on May 4, 2010.
(4) The Court heard argument on the motion to compel [Docket No. 1202]. During argument, defense counsel described efforts to obtain documents from the twelve allegedly Levaquin-related cases. The Court denied the motion as moot with respect to Ortho McNeil v. Mylan, because defendant has agreed to produce those documents. With respect to the remaining cases, the Court denied the motion, with the exception of the cases in which defense counsel has already initiated some additional review, with respect to which the Court denied the motion as moot. The Court directed defense counsel to report back to the Court regarding those cases. The Court found that plaintiffs had failed to show that the documents in the remaining cases are relevant or reasonably calculated to lead to the discovery of admissible evidence. The Court reminded defense counsel of the defendant's ongoing discovery obligations. With respect to the motion to compel production of an inventory of all documents reviewed but not produced as non-responsive, the Court denied the motion without prejudice. The Court found that the plaintiffs had not established a basis for such an inventory because they had not alleged that the defendants had engaged in any actions that were suspect in any way. The Court further found that plaintiffs had failed to establish that such an inventory would lead to the discovery of admissible evidence.
(5) Plaintiffs agreed to submit their response to the motion by Friday, May 7, 2010. They will continue to seek Dr. Butner's deposition. The Court agreed that if plaintiffs discover any relevant information from Dr. Butner before argument on the motion, plaintiffs may supplement their briefing. Plaintiffs also indicated that with respect to some of the broader issues contained in the motion for summary judgment, they intend to respond substantively as best they can, but also to file a Rule 56(f) motion. The Court directed plaintiffs' counsel to provide a substantive response to the broader issues. The Court indicated that it would review plaintiffs' brief and then determine whether the Court would like to defer ruling on part of the motion for summary judgment. The Court tentatively rescheduled the hearing on the motion from June 7, 2010, to June 22, 2010, at 1:30 pm, with a maximum of 90 minutes total for argument.
(6) The parties have not yet sent the Court a copy of proposed Pretrial Order Number 8. According to defense counsel, proposed PTO 8 would establish a procedure whereby a case will be dismissed at some point after a plaintiff fails to provide a plaintiff fact sheet. Plaintiffs' counsel argued that such a procedure is not necessary. The Court sought further input from counsel regarding acceptable communication to plaintiffs before dismissing a case for failure to provide a plaintiff fact sheet, and indicated a desire to have multiple levels of communication about dismissal for failure to prosecute for failure to submit plaintiff fact sheets.
(7) The parties indicated that they had come closer to an agreement on the selection of bellwether cases, with plaintiffs John Shedeen and Calvin Christiansen mentioned as possible bellwether plaintiffs. Plaintiffs' counsel will submit briefing on consolidation on or before May 12, 2010. Defense counsel will respond by May 26, 2010. Any reply is due on June 2, 2010. Plaintiffs' counsel indicated a desire to suspend fact-specific discovery for some of the potential bellwether plaintiffs. The Court directed the parties to continue with all discovery relating to all of the potential bellwether plaintiffs, including the depositions of approximately twenty fact witnesses that plaintiffs intend to call at trial.
(8) (a) Document Production. Defense counsel indicating that defendant would produce approximately 200,000 pages from the patent case as soon as possible. The first production of financial documents and the last production of sales rep documents will take place on May 7, 2010. The parties indicated a dispute over production of documents from the Omnicare qui tam case out of Boston. Plaintiffs' counsel confirmed that a motion on the issue is forthcoming. (b) Plaintiffs' Third-Party Subpoenas. Plaintiffs' counsel stated that Aventis is ready to produce 20-30 boxes of documents, and Dr. Levy's deposition will take place in June. Plaintiffs' counsel expects to get further information from Excerpta Medica shortly, but indicated that Excerpta Medica did not do anything for Levaquin. CommonHealth did a substantial number of projects relating to Levaquin beginning in 2005, and according to plaintiffs' counsel that production may take a little time. DesignWrite has 100-150 boxes, and plaintiffs' counsel expects to get production from DesignWrite in the next few weeks. Plaintiffs' counsel intends to take depositions with respect to DesignWrite. Falk Group, another third-party for discovery purposes, has been served with a subpoena in the New Jersey state court litigation, and plaintiffs' counsel intends to duplicate that subpoena in federal court shortly. (c) Experts. Experts have produced their reports and depositions are in process. The deposition of Cheryl Bloom, plaintiffs' warning expert, is scheduled for July 9, 2010. The parties are working on scheduling depositions of other warning experts. The parties are scheduling a follow-up deposition of Dr. Wells, one of plaintiffs' bio-statisticians. The parties are scheduling an original deposition of Myron Winkleman, plaintiffs' consumer warning expert. Plaintiffs have produced case specific expert reports, and defense counsel indicated that Dr. Segreti will likely submit an expert report on all six potential bellwether plaintiffs. Dr. Segreti's report is due May 15, 2010, and plaintiffs intend to depose him thereafter. (d) Case specific discovery. Defense counsel requested that the parties adopt some sort of formal mechanism to remind plaintiffs that they have an obligation to retain various documents, including patient information sheets and any research the individual plaintiffs have conducted. Plaintiffs' counsel indicated a willingness to consider defense counsel's request. The Court indicated that the request seems reasonable. The parties scheduled the next status conference, which will be held telephonically, for May 28, 2010, at 1:30 pm.
April 6, 2010
The Court held a formal status conference in In re Levaquin Products Liability Litigation, No. 08-md-1943, on April 6, 2010. Appearing on behalf of plaintiffs were Ronald Goldser, Lewis Saul, Robert Binstock, Charles Zimmerman, Caia Johnson, Yvonne Flaherty, and Kevin Fitzgerald in person, and Collin Trout by telephone. Appearing on behalf of defendants were John Dames, William Robinson, John O'Shaughnessy, 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) federal/state coordination; (3) identification of the proper defendant; (4) plaintiffs' privilege log motion; (5) the motion to intervene by Kentucky League of Cities Workers Compensation Trust; and (6) the status of discovery.
(1) The parties confirmed that there are currently 377 federal cases. Plaintiffs' counsel indicated that there are 276 cases filed in New Jersey state court as of March 31, 2010, and four additional state court cases. Defense counsel indicated that defendants have been served in 187 of the New Jersey cases and that there is a total of 194 state court cases.
(2) Counsel indicated that the New Jersey state court intends to establish categories of bellwether cases with the goal of having a trial in January, after completion of the first federal trial. Counsel indicated that the New Jersey state court is leaning toward having the first bellwether trial involve a single plaintiff, but has not yet made that decision. The New Jersey state court intends to take the lead on motion practice relating to post-black box warning cases. Counsel also represented that depositions of Johnson and Johnson witnesses have been noticed for May 13 and May 28, 2010 in Philadelphia. These will be the first depositions that the federal plaintiffs have conducted in a coordinated fashion with the New Jersey state court plaintiffs. Plaintiffs' counsel reported that the coordination process is going increasingly well. Counsel represented that rebuttal reports have been served in accordance with the deadline. The Court stated for the record that it met with the New Jersey state court and that they decided that it would be best to begin with a bellwether trial in federal court. The Court set November 8, 2010 as the firm trial date for the first federal bellwether trial. The Court indicated its current intention to try one plaintiff, but stated that plaintiffs may make a motion to have more than one bellwether plaintiff in the first trial. The Court indicated its desire to identify the plaintiff or plaintiffs for the first trial as soon as possible. Plaintiffs' counsel indicated a preference to try more than one case at a time. Plaintiffs' counsel agreed to identify for the Court a preferred plaintiff, as well as an overall list of 2-4 plaintiffs, and the Court indicated that after hearing from the defendants it would resolve the issue. Counsel represented that with respect to the state court litigation outside of New Jersey, discovery has started in the Madison County cases and there are some motions pending in those cases as well.
(3) Counsel indicated that they have reached an agreement as to the proper defendant and that they will include a proposal in Pre-Trial Order No 7 stating that all complaints filed in this court will be amended to include that party as the proper party defendant, and stating that the amendment will relate back to the time of filing the complaint or December 31, 2007, whichever is later, because the defendant was created on December 31, 2007.
(4) Counsel represented that they held a meet and confer in accordance with the Court's order of February 12, 2010, and that the parties reached certain agreements. Defendants have agreed to remove from the privilege log 56 documents and to produce those documents by April 16, 2010. Defendants have agreed to remove redactions from 67 documents and to produce those documents by April 16, 2010. Defense counsel represented that they have withdrawn 35 documents on the privilege log as unresponsive. There are slightly more than 800 documents remaining within the privilege log motion. The Court set April 27, 2010 as the tentative deadline for preparing those remaining documents for in camera review by the Magistrate Judge, pending the Court's verification of the Magistrate Judge's schedule.
(5) The parties noted that on March 4, 2010, the Kentucky League of Cities Workers Compensation Trust filed a motion to intervene (Docket No. 1099) in the case involving plaintiffs Robert Dixon and Anetha Dixon, which had been filed initially in the Eastern District of Kentucky, No. 7:10-CV-0001. The Court indicated that it will ask counsel for the individual plaintiffs to respond to the motion.
(6) (a) Document production. The parties discussed various items set forth in a letter that precipitated the parties' most recent meet and confer. The parties reported that they had resolved several issues. Some remaining disputes involve litigation hold information involved with other Levaquin litigation, documents identified by Dr. Khan during his deposition, and documents that Johnson & Johnson's trial counsel had in certain patent litigation. Defense counsel argued that it was not reasonable or productive to require the defendant to go to counsel in unrelated litigations to try to find documents that defense counsel believes it already has and has already produced. The Court directed plaintiffs' counsel to bring a motion relative to the matters discussed, listing the cases that plaintiffs contend are relevant for further discovery. The Court requested that the parties get the matter before the Court in writing as quickly as possible. Defense counsel indicated that they are reviewing for redaction removal approximately 45,000 to 50,000 documents containing financial information, and that they will produce those documents as quickly as they can. Defense counsel indicated that it would take at least one month to complete the review. The Court directed that counsel complete the review as quickly as possible, but recognized that it was difficult to set a deadline. Defense counsel indicated that the documents of sixteen sales representatives have been produced, and that they will produce documents from certain other sales representatives. Plaintiffs' counsel indicated that the parties disputed whether defendants should be required to generate a list of documents they have reviewed but not produced. The Court directed plaintiffs' counsel to review the relevant transcript regarding the nature of the list defendants would be able to produce and, if counsel wishes, counsel may make a motion for the Court to consider. (b) Third-Party Subpoenas. Plaintiffs' counsel stated that the Aventis documents are subject to a motion to compel in New Jersey and are still being compiled. Plaintiffs' counsel stated that it has three relatively new subpoenas that have been served on Excerpta Medica, CommonHealth, and DesignWrite in the federal MDL and simultaneously in the New Jersey state court litigation. DesignWrite has 50 boxes of materials and is beginning its review and privilege review. Plaintiffs' counsel indicated that First Data has given them some difficulty, and a motion to compel may be necessary. First Data is insisting that the motion to compel be filed in California, where First Data is located. (c) Experts. Counsel stated that rebuttal expert reports have been generated and exchanged, and warnings experts for plaintiffs have been produced. Defense counsel will provide warnings experts at the end of April. The parties are in the process of scheduling follow-up depositions for all experts. (d) Case specific discovery. Plaintiffs have produced case-specific reports and await the defense case-specific reports at the end of April. Plaintiffs' counsel clarified that when plaintiffs provided case specific fact witnesses they did not list defense witnesses whom they had deposed for the liability case. Plaintiffs' counsel did not list such witnesses because they did not think it was necessary to do so. Plaintiffs' counsel indicated that there were some difficulties serving Dr. Butner, who has moved to a new clinic. Defense counsel objects to the follow-up deposition of Dr. Butner and indicated that they would file a motion later that day. Plaintiffs' counsel stated that they will file a response by April 9, 2010. The Court stated that it will review the motion and response when they come in to determine whether a hearing is necessary. Defense counsel stated that they had received the list of fact witnesses for the bellwether cases and advised the Court that they had not yet decided how many witnesses they will need to depose, but that they will be asking for deposition dates. The Court tentatively scheduled the next status conference for Monday, May 3, 2010, at 1:30 pm.
February 12, 2010
The Court held a formal status conference in In re Levaquin Products Liability Litigation on February 12, 2009. Appearing on behalf of plaintiffs were Ronald Goldser, Lewis Saul, Kevin Fitzgerald, Robert Binstock, Yvonne Flaherty, and Caia Johnson in person, and Kristian Rasmussen and Michael Goetz by telephone. Appearing on behalf of defendants were John Dames, 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 and litigation in other jurisdictions; (3) Pretrial Order #6; (4) the status of discovery, including (a) document production, (b) plaintiffs' third-party subpoenas, (c) experts, and (d) fact witness depositions; (5) dispositive and Daubert motions; and (6) two pending motions: a motion for reconsideration and a motion to compel.
(1) The parties indicated that there are currently 300 MDL cases, with 11 additional cases awaiting transfer and approximately 4 or 5 that the parties anticipate will be removed and transferred soon. There are also 124 New Jersey state court cases, one state court case in Iowa that will be removed, four state court cases in Illinois, and one state court case in New York. Counsel represented that the California case mentioned in the last status conference has been dismissed with a view to refilling so that it might be removed and transferred. Counsel represented that they were unaware of any actions filed in Canada.
(2) Counsel indicated that the New Jersey state court has scheduled monthly status conferences, the next of which is scheduled for February 25, 2010. Counsel indicated that in the New Jersey state court proceedings, defense counsel has served discovery responses, including answers to interrogatories and responses to requests for production, and the parties are currently discussing the sufficiency of those responses. Counsel also represented to the Court that the New Jersey state court ordered that all discovery taken in this MDL must be produced shared with the New Jersey state court.
(3) The parties confirmed that the Court had filed Pretrial Order #6.
(4)(a) Counsel represented that all of the Levaquin NDA has been produced and the Floxin NDA documents that plaintiffs' counsel tagged on site have been produced. Defense counsel stated that in December they provided initial lists of all of the sales representatives who called on the bellwether plaintiffs' prescribing physicians and that they are in the process of finding and contacting every person on the list. Defense counsel recently served plaintiffs counsel with an update of all of the addresses and the employment status of the relevant sales representatives. There are 15 current sales representatives and 58 former sales representatives. Four of the current representatives have been deposed, and defense counsel has collected documents from five of them. Five of the former representatives have been deposed. Defense counsel represented that they are trying to get the hard drives for 19 of them, and 13 of the former sales representatives do not have hard drives. Ten of the former sales representatives have no call notes and no computers because they only gave out samples. Defense counsel has worked with plaintiffs' counsel to limit the list of sales representatives to those who may have relevant information. For example, eleven of the former sales representatives did not detail until after the prescriptions. Defense counsel stated that they have made extensive efforts to locate certain sales representatives who have been terminated and to track down their documents and computers but has had limited success. Counsel indicated that thirteen sales representatives called on Dr. Butner. Defense counsel has collected documents for two more of those sales representatives and will produce those documents. Counsel further represented that the patent case documents are under review and will be produced in short order. Defense counsel will review the Court's order on the motion to compel and provide plaintiffs' counsel with a letter indicating the degree of compliance. Plaintiffs' counsel also stated that plaintiffs are seeking discovery based on allegations in a Boston qui tam case that recently had been unsealed. Plaintiffs' counsel also stated that they have served some additional discovery requests and that they anticipate that there will be some subpoenas issues and possibly depositions in relation to some third-party marketing consultants and similar entities. Plaintiffs are currently evaluating a substantial document production with respect to the Speakers Bureau and anticipate some additional materials in that regard. Plaintiffs have scheduled a 30(b)(6) deposition on the topic for March, and have recently served some discovery requests on the topic.
(4)(b) Plaintiffs' counsel stated that they had taken the deposition of MediSpan. They stated that FirstDataBank, which is located in the Northern District of California, has accepted service, but plaintiffs' counsel may need to file a motion to compel. Plaintiffs' counsel stated that they would ask FirstDataBank whether it is willing to agree to have it heard in Minnesota. Plaintiffs' counsel is anticipating document production from Aventis but has not yet scheduled its deposition. Defense counsel clarified that MediSpan and FirstDataBank have no relationship or ties with Johnson & Johnson. Daiichi produced a very limited set of documents from Daiichi U.S. but declined to produce any documents from Daiichi Japan. Plaintiffs' counsel will copy the Daiichi documents and provide them to defense counsel. The parties confirmed that defense counsel is entitled to notice of any third-party depositions and subpoenas. Defense counsel did not receive notice of the third-party subpoenas that were served on certain journals. Plaintiffs' counsel confirmed that all of the journals asserted the publisher's privilege and did not produce anything.
(4)(c) Plaintiffs' counsel stated that they have three defense experts remaining to be deposed: Dr. Rodrick, Dr. Segreti, and Dr. Lane. Those depositions are scheduled for February and early March. Counsel stated that the warnings experts are due on March 30, 2010, and depositions will take place thereafter. Counsel also stated that case-specific experts are due on March 30, 2010, and counsel should be able to meet those deadlines. (4)(d)Bellwether plaintiff Calvin Christensen will be deposed on February 24, 2010, and the remaining bellwether plaintiffs have been deposed. Of the treating physicians, depositions of six orthopedists have been scheduled. Plaintiffs' counsel are waiting for dates for a deposition of a seventh doctor who is a primary care doctor. The 30(b)(6) Speakers Bureau deposition is scheduled for March.
(5) Plaintiffs' counsel suggested that the Court hear live expert testimony in preparation for anticipated Daubert motions.
(6) The Court granted plaintiffs' motion to reconsider the Karkoska scheduling order on defendants' motion for summary judgment and ordered that plaintiffs' response will be due on April 30, 2010. The Court will schedule a hearing on the motion for June. With respect to plaintiffs' motion to compel production, the Court ordered the parties to meet and confer within ten days and directed the parties to submit a joint letter to the Court regarding the remaining documents subject to dispute. The Court directed the parties to raise any remaining issues with Magistrate Judge Boylan. The Court tentatively scheduled the next status conference for April 6, 2010 at 1:30 pm.
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.