Abarca, et. al. vs. Merck & Co., et.al.

Filing 243

SCHEDULING CONFERENCE ORDER signed by Judge Oliver W. Wanger on 01/27/2009. Amended Complaint due by 2/9/2009; Dispositive Motion due by 7/30/2010; Non-Dispositive Motions due by 7/15/2010; Jury Trial set for 11/23/2010 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger; Motion Hearing set for 3/16/2009 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger; Pretrial Conference set for 10/18/2010 at 11:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger; Scheduling Conference set for 11/30/2009 at 11:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger; Settlement Conference set for 7/13/2010 at 10:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck.(Flores, E)

1 2 3 4 5 6 7 8 9 10 11 12 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. I. Date of Scheduling Conference. January 7, 2009. Appearances of Counsel. Marderosian, Runyon, Cercone, Lehman & Armo by Michael G. Marderosian, Esq., and Brett L. Runyon, Esq., appeared on behalf of Plaintiffs. Shernoff, Bidart, Daras & Echeverria by Michael J. Bidart, Esq., appeared on behalf of Plaintiffs. Girardi & Keese by Thomas V. Girardi, Esq., and Thomas Johnston, Esq., appeared on behalf of Plaintiffs. Lewis, Brisbois, Bisgaard & Smith by Joseph A. Salazar, Esq., appeared on behalf of Defendant Franklin County Water 1 v. MERCK & CO., INC., et al., ABARCA, RAUL VALENCIA, et al., Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) ) 1:07-cv-0388 OWW DLB SCHEDULING CONFERENCE ORDER UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

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District. Greenfield-Hardy by Alexander Hardy, Esq., appeared on behalf of Defendants Merced Irrigation District and Merced Drainage District No. 1. Allen, Proietti & Fagalde by Terry L. Allen, Esq., and Greben & Associates by Jan A. Greben, Esq., appeared on behalf of Defendant County of Merced. McCormick, Barstow, Sheppard, Wayte & Carruth by Stephen E. Carroll, Esq., and Chapman, Glucksman, Dean, Roeb & Barger by Glenn Barger, Esq., appeared on behalf of Defendants Ranchwood Homes Corporation, RW Properties, RW Contractors, Hostetler Investments, LLC, El Capitan Estates, LLC, Hollywood Park Estates, LLC, and Ranchwood Management. Barg Coffin Lewis & Trapp, LLP, by John F. Barg, Esq., Stephen C. Lewis, Esq., and R. Morgan Gilhuly, Esq., appeared on behalf of Defendants Merck & Co., Inc., Amsted Industries, Inc., Baltimore Aircoil Company, Inc., and Track Four, Inc. Stevens, Brummond & Gifford by Gary Drummond, Esq., appeared on behalf of Defendant Meadowbrook Water Company of Merced, Inc. III. Fifth Amended Complaint and Defendants' Responsive Pleadings/Motions. 1. On December 30, 2008, Plaintiffs filed their Fifth Defendants' responses to the Fifth Amended To the extent that

Amended Complaint.

Complaint shall be due February 9, 2009.

Defendants respond by way of motion, Plaintiffs' oppositions to any such motions shall be due February 24, 2009. replies shall be due March 3, 2009. Defendants'

Defendants' motions with

respect to the Fifth Amended Complaint will be heard at 10:00 2

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a.m. on March 16, 2009, in Courtroom 3. IV. The Proposed Addition of Three Plaintiffs. 1. In Plaintiffs' Supplement to Joint Scheduling

Conference Statement dated December 22, 2008 ("Plaintiffs' Supplement"), they propose that Carlos Sanchez, Maria Sanchez, and Carla Sanchez be reinstated and/or joined as Plaintiffs in this action. The parties have agreed that Plaintiffs' Supplement Any

will be deemed a motion to amend for purposes of this issue.

opposition by Defendants to such motion shall be due February 9, 2009. Any Plaintiffs' reply in support of said motion shall be Plaintiffs' motion will be heard at 10:00

due February 24, 2009.

a.m. on March 16, 2009, in Courtroom 3. V. Amended Case Schedule. 1. In addition to scheduling the matters in Sections III

and IV above, the Court and the parties engaged in a lengthy discussion regarding trial scheduling and trial process. Court, after considering the comments of the parties, and acknowledging that the schedule may change depending on the parties' progress in preparing the case for trial, set the following dates: a. Trial is presently set to begin at 9:00 a.m. on The

November 23, 2010, in Courtroom 3. b. In anticipation of this trial date, the Court sets

the following dates by which certain pre-trial activities should be completed: (1) February 28, 2009, - no later than this date

Plaintiffs will designate ten test Plaintiffs for trial. (2) April 30, 2009 - no later than this date 3

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Defendants will designate ten test Plaintiffs for trial. (3) March 1, 2010 - Plaintiffs designate expert

witnesses and submit expert reports pursuant to Federal Rule of Civil Procedure 26(a)(2). (4) April 1, 2010 - Defendants designate expert

witnesses and submit expert reports pursuant to Federal Rule of Civil Procedure 26(a)(2). (5) May 1, 2010 - the parties designate

supplemental or rebuttal experts and submit expert reports pursuant to Federal Rule of Civil Procedure 26(a)(2). (6) June 30, 2010 - all percipient and expert

witness discovery will be completed. (7) July 13, 2010, 10:00 a.m. - the parties will

attend a settlement conference before Magistrate Judge Dennis L. Beck in Courtroom 9. (8) July 15, 2010 - all non-dispositive motions

of the parties must be filed by this date. (9) July 30, 2010 - all dispositive motions of

the parties must be filed by this date. (10) dispositive motions. (11) dispositive motions. (12) October 18, 2010, 11:00 a.m. - Pretrial September 13, 2010 - hearing date for August 20, 2010 - hearing date for non-

Conference in Courtroom 3. VI. Miscellaneous Issues Regarding Trial Witness Disclosures and Trial of Test Plaintiffs. 1. Any witness who will be called to testify at trial, 4

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including any Plaintiff who is not designated as a test Plaintiff, must be disclosed by the party intending to call such witness at trial on or before January 31, 2010. Any person not

so disclosed will not be allowed to testify as a trial witness. 2. In the event any test Plaintiff identified by Defendant

is dismissed at any time prior to the start of trial, Defendants shall have the opportunity and a reasonable amount of time to select a substitute Plaintiff and complete reasonable discovery related to that Plaintiff. 3. The Court presently envisions that one trial of twenty

test Plaintiffs, ten selected by Plaintiffs and ten selected by Defendants, will be sufficient to resolve all liability claims as to all Plaintiffs. Plaintiffs similarly contemplate only one In light of the diversity of

trial of twenty test Plaintiffs.

Plaintiffs' claims, including timing and location of residence in allegedly affected neighborhoods, differences in personal injury and property damage claims, the diversity of Defendants, and other variables, at this stage of the proceedings Defendants believe that it is impractical to assume that liability and damage determinations as to twenty test Plaintiffs can or should determine the outcome of the more than 2,180 remaining Plaintiffs. If necessary, the matters of issue and claim

preclusive effect of such a trial shall be raised by motion to be filed by October 1, 2009, and heard November 30, 2009, in Courtroom 3 at 10:00 a.m. 4. In the event a Plaintiff in the initial trial of test

Plaintiffs obtains findings of liability, compensatory damages, and malice, oppression or fraud as to one or more Defendants, the 5

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same jury that made such findings will also determine the amount, if any, of punitive damages. At this point, it is unclear

whether it would be proper for a different jury in a subsequent phase of trial to make any determination concerning either the appropriateness or the amount of punitive damages based on the findings of a jury that sat in a prior phase of trial. 5. This Order is without prejudice to the right of any

party to move to sever claims and/or parties and/or to separately try issues, and/or bifurcate the proceedings. Any objections to

the matters set forth in this Scheduling Order are preserved by the parties, and the Court will address such objections as appropriate during the course of these proceedings. 6. The Court will hold a further scheduling conference to

evaluate the status of discovery, to evaluate the uniqueness or similarity of the Plaintiffs' claims, and to assess the various claims, parties, and theories of liability that remain in the case. The Court may determine with the parties at that time

whether any modifications or adjustments to the above pre-trial and trial schedule are appropriate. At that time, the Court,

with the assistance of the parties, may also evaluate and decide the issue of whether a second group of test Plaintiffs should be designated, or whether such designation should await completion of the first trial, and it may also determine preliminary procedures for any contemplated second trial. That further

scheduling conference shall be held on November 30, 2009, at 11:00 a.m. in Courtroom 3.

IT IS SO ORDERED. 6

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Dated: January 27, 2009 emm0d6

/s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

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