Martinelli v. Johnson & Johnson et al

Filing 234

STIPULATION AND ORDER signed by Senior Judge Morrison C. England, Jr on 5/29/2020 EXTENDING Case Schedule: Non-Expert Discovery completed by 9/25/2020; Expert designations and reports due by 11/20/2020; Supplemental designations and reports of expe rts who will express an opinion on a subject covered by an expert designated by an adverse party due by 1/22/2021; Dispositive motions due by 1/22/2021; The parties shall file a Joint Notice of Trial Readiness not later than thirty (30) days afte r receiving the Court's ruling(s) on dispositive motion(s). If the parties do not file dispositive motions, the Parties shall file a Joint Notice of Trial Readiness not later than 2/22/2021; and Other than as stated herein, the Parties will comply with the terms of the Court's 12/20/2019 Supplemental Pretrial Scheduling Order, Dkt. No. 218 .(Becknal, R)

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O’MELVENY & MYERS LLP
Richard B. Goetz (State Bar No. 115666)
Carlos M. Lazatin (State Bar No. 229650)
400 South Hope Street
Los Angeles, CA 90071
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]

BURSOR & FISHER, P.A.
Neal J. Deckant (State Bar. No. 322946)
Frederick J. Klorczyk (State Bar No. 320783)
1990 North California Boulevard, Suite 940
Walnut Creek, CA 94596
Telephone: [phone]
Facsimile: [phone]
E-Mail:
[e-mail]
[e-mail]

O’MELVENY & MYERS LLP
Hannah Y. Chanoine (admitted pro hac vice)
Times Square Tower
7 Times Square
New York, NY 10036
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

BURSOR & FISHER, P.A.
Joseph I. Marchese (admitted pro hac vice)
888 Seventh Avenue
New York, NY 10019
Telephone: [phone]
Facsimile: [phone]
E-Mail:
[e-mail]

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BURSOR & FISHER, P.A.
Scott A. Bursor (State Bar No. 276006)
2665 S. Bayshore Dr., Suite 220
Miami, FL 33133-5402
Telephone: [phone]
Facsimile: [phone]
E-Mail:
[e-mail]

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Attorneys for Plaintiff

Attorneys for Defendants
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOANN MARTINELLI, individually and on
behalf of all others similarly situated,

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Plaintiff,

Case No. 2:15-cv-01733-MCE-DAD
JOINT STIPULATION AND ORDER
EXTENDING CASE SCHEDULE

v.
JOHNSON & JOHNSON and McNEIL
NUTRITIONALS, LLC,
Defendants.

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JOINT STIPULATION AND ORDER
EXTENDING CASE SCHEDULE
Case No. 2:15-cv-01733-MCE-DAD

Judge Morrison C. England, Jr.

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Pursuant to Rule 16(b)(4), Plaintiff Joann Martinelli (“Plaintiff”) and Defendants Johnson

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& Johnson and McNeil Nutritionals, LLC (“Defendants”) (collectively, the “Parties”) submit this

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joint stipulation to extend the current case deadlines in this consumer class action regarding

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Benecol. In this case, the Court has certified two classes of Benecol purchasers, and the Parties

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are currently engaged in discovery to prepare for trial. However, as a result of the current health

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crisis, the Parties agree that there is good cause to extend the current deadlines in this Court’s

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December 20, 2019 Supplemental Pretrial Scheduling Order (Dkt. No. 218) (“Supplemental

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Pretrial Scheduling Order”). Accordingly, by and through their counsel of record, the Parties

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hereby stipulate as follows:

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WHEREAS, on March 29, 2019, the Court issued an order certifying two classes of

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consumers of Benecol: the California Class and the Multi-State Warranty Class (Dkt. No. 216 at

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19);

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WHEREAS, on December 20, 2019 this Court entered the Supplemental Pretrial

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Scheduling Order setting the schedule for completion of fact and expert discovery and the

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deadline for dispositive motions;

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WHEREAS, under the Supplemental Pretrial Scheduling Order, non-expert discovery

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must be completed by July 27, 2020 (220 days from the date of the Order) (Dkt. 218 at 1:21-22);

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expert witness designations and reports must be served by September 25, 2020 (60 days after the

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close of non-expert discovery) (id. at 2:2-6); supplemental expert witnesses designations must be

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served by October 25, 2020 (30 days after the designation of expert witnesses) (id. at 2:7-12);

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and dispositive motions must be filed by October 25, 2020 (90 days after the close of non-expert

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discovery) (id. at 3:14-15);

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WHEREAS, the Court has not yet set a trial date, but has instructed the Parties to file a

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Joint Notice of Trial Readiness thirty days after receiving the Court’s ruling on dispositive

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motions, and if no dispositive motions are filed, on November 25, 2020 (30 days after the time

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for designation of supplemental expert witnesses) (Dkt. No. 218 at 5:2–7);

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JOINT STIPULATION AND ORDER EXTENDING CASE
SCHEDULE
Case No. 2:15-cv-01733-MCE-DAD

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WHEREAS, the Parties are diligently preparing this case for trial. The parties have

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served and responded to written discovery, including interrogatories and requests for production.

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On March 18, 2020, Plaintiff filed a motion for an order approving her plan for providing notice

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to the certified classes, (Dkt. No. 221), which Defendants opposed and which is currently

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pending. On April 2, 2020, Defendants filed a motion to amend the current class definition,

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(Dkt. No. 227), which Plaintiff opposed and which is also pending;

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WHEREAS, Defendants are also engaged in third-party discovery. Defendants have

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issued subpoenas seeking the deposition testimony of Plaintiff’s husband, Larry Martinelli, and

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Plaintiff’s physician Dr. James T. Foster. On March 10, 2020, Larry Martinelli and Dr. Foster

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filed motions to quash the subpoenas, with hearings originally noticed for April 3, 2020 (Dkt.

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Nos. 219, 220) (“Motions to Quash”);

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WHEREAS, Magistrate Judge Deborah Barnes continued the hearings on the Motions to

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Quash to June 5, 2019 due to the current health crisis and related restrictions. (Dkt. Nos. 222

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(continuance to May 8, 2020 in the “interest of public health and safety”), 231 (continuance to

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June 5, 2020 in light of General Order 617));

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WHEREAS, if Judge Barnes denies the Motions to Quash, allowing the depositions of

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Larry Martinelli and Dr. Forster to proceed, it is uncertain when those depositions can take place

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in light of the current stay-at-home orders. In addition, Defendants had anticipated pursuing

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additional discovery depending on the outcome of the Court’s ruling on the Motions to Quash;

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however, because the hearings have been continued to June 5, 2020, it will be difficult to

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complete that additional discovery prior to the July 27, 2020 cut-off for non-expert discovery;

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WHEREAS, the Parties have not previously requested an extension of the dates in the
Supplemental Pretrial Scheduling Order;

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WHEREAS, the Parties agree that there is good cause to extend the case deadlines to take

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into account the additional time that may be required to complete discovery;

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JOINT STIPULATION AND ORDER EXTENDING CASE
SCHEDULE
Case No. 2:15-cv-01733-MCE-DAD

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NOW, THEREFORE, believing that good cause exists, the Parties STIPULATE AND

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AGREE, subject to the approval of this Court, that the current case schedule should be extended

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as follows:

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1.

Non-expert discovery shall be completed by September 25, 2020.

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2.

Expert designations and reports pursuant Federal Rule of Civil Procedure

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26(a)(2)(B) shall be due November 20, 2020.
3.

Supplemental designations and reports of experts who will express an opinion on

a subject covered by an expert designated by an adverse party shall be due January 22, 2021.

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4.

Dispositive motions shall be filed by January 22, 2021.

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5.

The Parties shall file a Joint Notice of Trial Readiness not later than thirty (30)

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days after receiving the Court’s ruling(s) on dispositive motion(s). If the parties do not file

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dispositive motions, the Parties shall file a Joint Notice of Trial Readiness by February 22, 2021.

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Other than as stated herein, the Parties will comply with the terms of the Court’s

December 20, 2019 Supplemental Pretrial Scheduling Order, Dkt. No. 218.

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IT IS SO STIPULATED.

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Dated: May 22, 2020

O’MELVENY & MYERS, LLP
By: _/s/ Carlos M. Lazatin __
Carlos M. Lazatin
Richard B. Goetz (State Bar No. 115666)
Carlos M. Lazatin (State Bar No. 229650)
400 South Hope Street
Los Angeles, California 90071
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
[e-mail]
Attorneys for Defendants

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JOINT STIPULATION AND ORDER EXTENDING CASE
SCHEDULE
Case No. 2:15-cv-01733-MCE-DAD

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Dated: May 22, 2020

BURSOR & FISHER, P.A.
By: /s/ Frederick J. Klorczyk III (as authorized on 5/22/20)
Frederick J. Klorczyk III

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Neal J. Deckant (State Bar No. 322946)
Frederick J. Klorczyk III (State Bar No. 320783)
1990 North California Boulevard, Suite 940
Walnut Creek, CA 94596
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
[e-mail]

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Attorneys for Plaintiff

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JOINT STIPULATION AND ORDER EXTENDING CASE
SCHEDULE
Case No. 2:15-cv-01733-MCE-DAD

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ORDER
PURSUANT TO THE FOREGOING STIPULATION, AND FINDING GOOD CAUSE
THEREFORE, IT IS HEREBY ORDERED AS FOLLOWS:

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1.

Non-expert discovery shall be completed no later than September 25, 2020.

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2.

Expert designations and reports pursuant Federal Rule of Civil Procedure

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26(a)(2)(B) shall be due November 20, 2020.
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Supplemental designations and reports of experts who will express an opinion on

a subject covered by an expert designated by an adverse party shall be due January 22, 2021.

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4.

Dispositive motions shall be filed by January 22, 2021.

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5.

The Parties shall file a Joint Notice of Trial Readiness not later than thirty (30)

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days after receiving the Court’s ruling(s) on dispositive motion(s). If the parties do not file

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dispositive motions, the Parties shall file a Joint Notice of Trial Readiness not later than February

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22, 2021.

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6.

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Other than as stated herein, the Parties will comply with the terms of the Court’s

December 20, 2019 Supplemental Pretrial Scheduling Order, Dkt. No. 218.
IT IS SO ORDERED.

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Dated: May 29, 2020

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JOINT STIPULATION AND ORDER
EXTENDING CASE SCHEDULE
Case No. 2:15-cv-01733-MCE-DAD