Milinkovich v. Pfizer Inc

Filing 2

PRETRIAL ORDER #1. Signed by Judge Charles R. Breyer on 11//05. (mcl, COURT STAFF) (Filed on 1/4/2006)

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Milinkovich v. Pfizer Inc Doc. 2 Case 3:05-cv-05385-CRB Document 2 Filed 01/04/2006 Page 1 of 10 1 2 3 4 5 6 7 8 9 10 I N THE UNITED STATES DISTRICT COURT F O R THE NORTHERN DISTRICT OF CALIFORNIA U n it e d United States District Court 11 12 For the Northern District of California N o . C 05-01699 CRB I N RE: BEXTRA AND CELEBREX M A R K E T IN G SALES PRACTICES AND P R O D U C T LIABILITY LITIGATION / T h i s Order Relates to: A L L CASES / The Judicial Panel on M ultidistrict Litigation ("the Panel") has transferred certain p r o d u c t liability and marketing sales practices actions relating to the drugs Bextra and Cele brex to this Court for coordinated pretrial proceedings. As the number and complexity o f these actions warrant holding a single, coordinated initial case management conference for a l l actions in In Re: Bextra and Celebrex Marketing, Sales Practices and Product Liability L i t ig a t i o n, MDL No. 1699, the Court ORDERS as follows: 1. A P P L I C A B I L I T Y OF ORDER --- Prior to the initial pretrial conference and M D L No. 1699 P R E T R I A L O R D E R #1 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 e n t r y of a comprehensive order governing all further proceedings in this case, the provisions of this Order shall govern the practice and procedure in those actions that were transferred to t h i s Court by the Panel. This Order also applies to all related cases filed in all divisions of the Northern District of California and all "tag-along actions" later filed in, removed to, or Case 3:05-cv-05385-CRB Document 2 Filed 01/04/2006 Page 2 of 10 1 2 3 4 5 6 7 8 9 10 transf erred to this Court. 2. CO NS OL IDA TIO N---T he civil actions transferred to this Court or related to t h e actions already pending before this Court are consolidated for pretrial purposes. Any "tag-a long actions" later filed in, removed to, or transferred to this Court, or directly filed in t h e Northern District of California, will automatically be consolidated with this action w i t h o u t the necessity of future motions or orders. This consolidation does not constitute a d e t e r m in a t i o n that the actions should be consolidated for trial, nor does it have the effect of m a k i n g any entity a party to any action in which he, she or it has not been named, served or a d d e d in accordance with the Federal Rules of Civil Procedure. 3. D A T E OF INITIAL CONFERENCE AND AGENDA FOR CONFERENCE-- United States District Court 11 12 For the Northern District of California M a t t e r s relating to pretrial and discovery proceedings in these cases will be addressed at an i n i ti a l pretrial conference to be held on Thursday, December 8, 2005 at 2:15 p.m. before J u d g e Charles R. Breyer in the Ceremonial Courtroom, 19th Floor, United States Courthouse, 4 5 0 Golden Gate Avenue, San Francisco, California. Counsel are expected to familiarize t h e m s e l v es with the Manual for Complex Litigation, Fourth ("MCL 4th") and be prepared at t h e conference to suggest procedures that will facilitate the expeditious, economical, and just r e s o lu t i o n of this litigation. The items listed in MCL 4th Sections 22.6, 22.61, 22.62, and 22.6 3 shall, to the extent applicable, constitute a tentative agenda for the conference. Counsel shall confer and seek consensus to the extent possible with respect to the items on t h e agenda, including a proposed discovery plan, amendment of pleadings, and consideration o f any class action allegations and motions. If the parties have any suggestions as to any case m a n a g e m e n t orders or additional agenda items, these suggestions shall be filed with the C ou rt by December 1, 2005. 4. P O S IT IO N STATEM E N T - - - Pl a i n t i f f s and defendants shall submit to the Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 by December 1, 2005 a brief written statement indicating their preliminary understanding of the facts involved in the litigation and the critical factual and legal issues. These statements w i l l not be binding, will not waive claims or defenses, and may not be offered in evidence a g a i n s t a party in later proceedings. The parties' statements shall identify all cases that have 2 Case 3:05-cv-05385-CRB Document 2 Filed 01/04/2006 Page 3 of 10 1 2 3 4 5 6 7 8 9 10 been transferred to or related before this Court, and shall identify all pending motions in those cases. The statement shall also list all related cases pending in state or federal court ( t h a t have not already been transferred to this Court), together with their current status, i n c l u d in g any discovery taken to date, to the extent known. The parties shall be limited to one s u c h submission for all plaintiffs and one such submission for all defendants. 5. I N I T I A L CONFERENCE APPEARANCES --- Each party represented by coun sel shall appear at the initial pretrial conference through the party's attorney who will h a v e primary responsibility for the party's interest in this litigation. Parties not represented b y counsel may appear in person or through an authorized and responsible agent. To m i n i m i z e costs and facilitate a manageable conference, parties with similar interests may a g r e e , to the extent practicable, to have an attending attorney represent the party's interest at the conference. A party will not by designating an attorney to represent the party's i n t e re s t at the conference be precluded from other representation during the litigation, nor w i l l attendance at the conference waive objections to jurisdiction, venue or service. 6. SE RV ICE ---Prior to the initial pretrial conference, service of all papers shall United States District Court 11 12 For the Northern District of California 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 be made on each of the attorneys on the Panel Attorney Service List attached to this Order. A n y attorney who wishes to have his/her name added to or deleted from such Panel Attorney S e r v i c e List may do so upon request to the Clerk and notice to all other persons on such s e r v ic e list. The parties shall present to the Court at the initial conference a service list of a t t o rn e y s and their office addresses and E-mail addresses. After the initial conference, s e r v ic e shall be by e-filing, as is explained in paragraph 9. 7. R E S P O N S E EXTENSION AND STAY--Defendants are granted an extension of time for responding by motion or answer to the complaint(s) until a date to be set by this C o u r t . Pending the initial conference and further orders of this Court, all outstanding disco very proceedings are stayed, and no further discovery shall be initiated. M oreo ver, all p e n d i n g motions must be renoticed for resolution on a motion day or days after the initial c a s e management conference. 3 Case 3:05-cv-05385-CRB Document 2 Filed 01/04/2006 Page 4 of 10 1 2 3 4 5 6 7 8 9 10 8. M A S T E R DOCKET FILE --- The Clerk of Court will maintain a master d o c k e t case file under the style "In Re: Bextra and Celebrex Marketing Sales Practices and Prod uct Liability Litigation" and the identification "M DL No. 1699." When a pleading is i n t e n d ed to apply to all actions, this shall be indicated by the words: "This Document Relates to All Cases." When a pleading is intended to apply to fewer than all cases, this Court's d o c k e t number for each individual case to which the document number relates shall appear imm edia tely after the words "This Document Relates to." 9. FIL ING --- This case is subject to Electronic Case Filing ("ECF"), pursuant to G e n e r a l Order 45, Section VI of which requires that all documents in such a case be filed electro nically. General Order 45 provides at Section IV (A) that "Each attorney of record is o b l i g a te d to become an ECF User and be assigned a user ID and password for access to the s y st e m upon designation of the action as being subject to ECF." If she or he has not already d o n e so, counsel shall register forthwith as an ECF User and be issued an ECF User ID and p a s s w o r d . Forms and instructions can be found on the Court's Web site at e c f . c a n d .u s c o u r ts . g o v . All documents shall be e-filed in the master file, 05-1699. Documents that pertain to one or only some of the pending actions shall also be e-filed in the individual case(s) to wh ich the document pertains. 10. D O C K E T I N G NEW CASES---When an action that properly belongs as part of United States District Court 11 12 For the Northern District of California 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I n Re: Bextra and Celebrex Marketing Sales Practices and Product Liability Litigation is filed after the date of this Order in the Northern District of California or transferred here from another court, the Clerk of this Court shall: a. b. c. F i l e a copy of this Order in the separate file for such action; Make an appropriate entry on the master docket sheet; Mail to the attorneys for the plaintiff in the newly filed or transferred case a co p y of this Order; d. U p o n the first appearance of any new defendant, mail to the attorneys for th e defendant in such newly filed or transferred cases a copy of this Order. 4 Case 3:05-cv-05385-CRB Document 2 Filed 01/04/2006 Page 5 of 10 1 2 3 4 5 6 7 8 9 10 11. AP PE AR AN CE S --- Counsel who appeared in a transferor court prior to tra ns fe r need not enter an additional appearance before this Court. M or eo ve r, attorneys admit ted to practice and in good standing in any United States District Court are admitted pro hac vice in this litigation, and the requirements of Northern District of California Local Rule 1 1 - 3 are waived. Association of local counsel is not required. 12. REMAND STIPULATIONS --- In the event that a case is remanded, the p a r t ie s shall furnish to the Clerk of Court a stipulation or designation of the contents of t h e record and furnish all necessary copies of any pleadings filed so as to enable the t r a n sf e r e e clerk to comply with the order of remand. 13. PRESERVATION OF EVIDENCE --- All parties and their counsel are United States District Court 11 remin ded of their duty to preserve evidence that may be relevant to this action. The duty 12 e x t e n d s to documents, data, and tangible things in the possession, custody and control of For the Northern District of California 13 t h e parties to this action, and any employees, agents, contractors, carriers, bailees, or 14 other nonparties who possess materials reasonably anticipated to be subject to discovery 15 in this action. "Documents, data, and tangible things" shall be interpreted broadly to 16 i n c l u d e writings, records, files, correspondence, reports, memoranda, calendars, diaries, 17 m i n u t e s , electronic messages, voice mail, E-mail, telephone message records or logs, 18 c o m p u t e r and network activity logs, hard drives, backup data, removable computer 19 s t o r ag e media such as tapes, discs and cards, printouts, document image files, Web 20 p a g e s , databases, spreadsheets, software, books, ledgers, journals, orders, invoices, bills, 21 v o u c h e r s , checks statements, worksheets, summaries, compilations, computations, 22 c h a r t s, diagrams, graphic presentations, drawings, films, charts, digital or chemical 23 proc ess photographs, video, phonographic, tape or digital recordings or transcripts 24 t h e r e o f, drafts, jottings and notes, studies or drafts of studies or other similar such 25 mate rial. Information that serves to identify, locate, or link such material, such as file 26 inven tories, file folders, indices, and metadata, is also included in this definition. Until 27 t h e parties reach an agreement on a preservation plan or the Court orders otherwise, each 28 p a r t y shall take reasonable steps to preserve all documents, data and tangible things 5 Case 3:05-cv-05385-CRB Document 2 Filed 01/04/2006 Page 6 of 10 1 c o n t a in i n g information potentially relevant to the subject matter of this litigation. 2 C o u n s e l is under an obligation to the Court to exercise all reasonable efforts to identify 3 a n d notify parties and non-parties, including employees of corporate or institutional 4 parties. 5 6 7 8 9 10 14. FILING OF DISCOVERY REQUESTS---In accordance with Rule 5(d) of t h e Federal Rules of Civil Procedure, discovery requests and responses are not to be filed w i t h the Clerk nor sent to the Judge's Chambers, except to the extent needed in connection w i t h a motion. 15. L I A I S O N COUNSEL --- Prior to the initial conference, counsel for the p l a i n ti f f s and counsel for defendants shall, to the extent they have not already done so, confer a n d seek consensus on the selection of a candidate for the position of liaison counsel for each g r o u p who will be charged with essentially administrative matters. For example, liaison coun sel shall be authorized to receive orders and notices from the Court on behalf of all p a r t ie s within their liaison group and shall be responsible for the preparation and transmittal o f copies of such orders and notices to the parties in their liaison group and perform other t a s k s determined by the Court. Liaison counsel shall be required to maintain complete files w i t h copies of all documents served upon them and shall make such files available to parties within their liaison group upon request. Liaison counsel are also authorized to receive orders a n d notices from the Judicial Panel on Multi District Litigation pursuant to Rule 5.2(e) of the P a n e l ' s Rules of Procedure or from the transferee court on behalf of all parties within their l i a is o n group and shall be responsible for the preparation and transmittal of copies of such o r d e r s and notices to the parties in their liaison group. The expenses incurred in performing the services of liaison counsel shall be shared equally by all members of the liaison group in a manner agreeable to the parties or set by the Court failing such agreement. Appointment of l i a is o n counsel shall be subject to the approval of the Court. At the first conference liaison c o u n s e l and/or the parties should be prepared to discuss any additional needs for an o r g a n i z at i o n a l structure or any additional matters consistent with the efficient handling of this matter. 6 United States District Court 11 12 For the Northern District of California 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:05-cv-05385-CRB Document 2 Filed 01/04/2006 Page 7 of 10 1 2 3 4 5 6 7 8 9 10 16. PLAINTIFFS' STEERING COMMITTEE- -The Court intends to appoint a Plaintiffs' Steering Committee ("PSC") to conduct and coordinate the discovery stage of this litigation with the defendants' representatives or committee. Applications/nominations for the PSC positions must be e-filed in master case no. 051 6 9 9 on or before Monday, December 20, 2005. A courtesy copy must be mailed dire ctly to Judge Breyer's chambers. The main criteria for membership in the PSC will be: (a) willingness and availa bility to commit to a time-consuming project; (b) ability to work cooperatively w i t h others; and (c) professional experience in this type of litigation. A p p l i c a ti o n s /n o m i n a t io n s should succinctly address each of the above criteria as well as a n y other relevant matters. No submissions longer than three (3) pages will be cons idered . The Court will only consider attorneys who have filed a civil action in this l i ti g a t io n . Ob jection s may be made to the appointment of a proposed applicant/nominee; nevertheless, the Court will entertain only written objections to any a p p l i ca t i o n /n o m i n a t io n . These objections must be e-filed in master case no. 05-1699 on o r before January 7, 2006, with a courtesy copy mailed to Judge Breyer's chambers. The objectio n s, if any, must be short, yet thorough, and must be supported by necessary doc um enta tion . The PSC will have the following responsibilities: A. Discov ery (1) I n i ti a t e, coordinate, and conduct all pretrial discovery on behalf of United States District Court 11 12 For the Northern District of California 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 p l a i n ti f f s in all actions which are consolidated with the instant multi district litigation. (2) De velop and propose to the Court schedules for the commencement, e x e c u t i o n , and completion of all discovery on behalf of all plaintiffs. (3) C au se to be issued in the name of all plaintiffs the necessary discovery requ ests, motions, and subpoenas pertaining to any witnesses and documents needed to pro per ly prepare for the pretrial of relevant issues found in the pleadings of this litigation. 7 Case 3:05-cv-05385-CRB Document 2 Filed 01/04/2006 Page 8 of 10 1 2 3 4 5 6 7 8 9 10 S i m i l ar requests, notices, and subpoenas may be caused to be issued by the PSC upon written r e q u e s t by an individual attorney in order to assist him/her in the preparation of the pretrial s t a g e s of his/her client's claims. (4) C o n d u c t all discovery in a coordinated and consolidated manner on b e h a l f and for the benefit of all plaintiffs. No attorney for a plaintiff may be excluded from a t t e n d i n g the examination of witnesses and other proceedings. Such attorney may suggest q u e s t io n s to be posed to deponents through the designated PSC members provided that such q u e s t i o n s are not repetitious. B. H e a r i n g s and Meetings (1) C a l l meetings of counsel for plaintiffs for any appropriate purpose, United States District Court 11 12 For the Northern District of California includin g coordinating responses to questions of other parties or of the Court. Initiate p r o p o s a l s , suggestions, schedules, or joint briefs, and any other appropriate matter(s) p e r t a i n i n g to pretrial proceedings. (2) plaintiffs. (3) Ac t as spokesperson for all plaintiffs at the pretrial proceedings and in E x a m i n e witnesses and introduce evidence at hearings on behalf of 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 respon se to any inquiries from the Court, subject of course to the right of any plaintiff's c o u n s e l to present non-repetitive individual or different positions. C. M i s c e l l an e o u s (1) S u b m it and argue any verbal or written motions presented to the Court o n behalf of the PSC as well as oppose when necessary any motions submitted by the d e f e n d a n t s or other parties which involve matters within the sphere of the responsibilities of t he PSC. (2) Ne gotiate and enter into stipulations with defendants regarding this litigation. All stipulations entered into by the PSC, except for strictly administrative details s u c h as scheduling, must be submitted for Court approval and will not be binding until the 8 Case 3:05-cv-05385-CRB Document 2 Filed 01/04/2006 Page 9 of 10 1 2 3 4 5 6 7 8 9 10 C o u r t has ratified the stipulation. Any attorney not in agreement with a non-administrative s t ip u l a t io n shall file with the Court a written objection thereto within ten (10) days after h e / s h e knows or should have reasonably become aware of the stipulation. Failure to object w i t h i n the term allowed shall be deemed a waiver and the stipulation will automatically be bi nd in g on that party. (3) E x p l o r e , develop, and pursue all settlement options pertaining to any c l a im or portion thereof of any case filed in this litigation. (4) M a i n t a i n adequate files of all pretrial matters and have them available, u n d e r reasonable terms and conditions, for examination by plaintiffs or their attorneys. (5) P r e p a r e periodic status reports summarizing the PSC's work and United States District Court 11 12 For the Northern District of California prog ress. These reports shall be submitted to the Plaintiffs' Liaison Counsel who will p r o m p t l y distribute copies to the other plaintiffs' attorneys. (6) Perf orm any task necessary and proper for the PSC to accomplish its 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 r e s p o n s i b i l it i e s as defined by the Court's orders. (7) P e r f o r m such other functions as may be expressly authorized by furthe r orders of this Court. (8) R e im b u rs em e n t for costs and/or fees for services will be set at a time a n d in a manner established by the Court after due notice to all counsel and after a hearing. 17. C O M M U N I C A T I O N WITH THE COURT --- Unless otherwise ordered by t h i s Court, all substantive communications with the Court shall be in writing and e-filed. The C o u r t recognizes that cooperation by and among plaintiffs' counsel and by and among def end ants ' counsel is essential for the orderly and expeditious resolution of this litigation. The communication of information among and between plaintiffs' counsel and among and b e t w e e n defendants' counsel shall not be deemed a waiver of the attorney-client privilege or t h e protection afforded attorneys work product, and cooperative efforts contemplated above sh all in no way be used against any plaintiff by any defendant or against any defendant by // // 9 Case 3:05-cv-05385-CRB Document 2 Filed 01/04/2006 Page 10 of 10 1 2 3 4 5 6 7 8 9 10 a n y plaintiff. Nothing contained in this provision shall be construed to limit the rights of any p a r t y or counsel to assert the attorney-client privilege or attorney work product doctrine. I T IS SO ORDERED. D a t e d : November 8, 2005 CHARLES R. BREYER U N I TE D STATES DISTRICT JUDGE United States District Court 11 12 For the Northern District of California 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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