Wendell et al v. Johnson & Johnson et al

Filing 176

ORDER Granting 175 Stipulation FOR ORDER EXTENDING TIME. Signed by Judge Claudia Wilken on 6/23/2011. (ndr, COURT STAFF) (Filed on 6/23/2011)

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Kevin Haverty, Esq., pro hac vice
WILLIAMS CUKER BEREZOFSKY, LLC
210 Lake Drive East, Suite 101
Cherry Hill, NJ 08002
Telephone: [phone]

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Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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STEPHEN WENDELL AND LISA WENDELL,
for themselves and as successors in interest to
MAXX WENDELL, DECEASED,

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CASE NO. 4:09-CV-04124-CW
STIPULATED REQUEST FOR ORDER
EXTENDING TIME AND ORDER

Plaintiffs,
v.
JOHNSON & JOHNSON; CENTOCOR, INC.;
ABBOTT LABORATORIES; SMITHKLINE
BEECHAM d/b/a GLAXOSMITHKLINE; TEVA
PHARMACEUTICALS USA; GATE
PHARMACEUTICALS, a division of TEVA
PHARMACEUTICALS USA; PAR
PHARMACEUTICAL, INC.;

Removal Filed: September 4, 2009

Defendants.

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STIPULATED REQUEST FOR ORDER EXTENDING TIME AND [PROPOSED] ORDER

CASE NO. 4:09-CV-04124-CW

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STIPULATION

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Pursuant to Rule 6-2(a), the parties jointly request that the deadlines be extended as set forth
herein.
On September 4, 2009, this case was removed to the United States District Court for the

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Northern District of California. A series of motions resolved multiple pleadings issues at the outset

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of this litigation. On June 10, 2010 plaintiffs filed the operative amended Complaint and the

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defendants all filed Answers on July 1, 2010. Discovery beyond initial disclosures began once

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pleadings issues were resolved.

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In the interim, the court, on June 3, 2010, entered a Case Management Order which provided,
among other things, that fact discovery was to end on February 2, 2011.

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On July 13, 2010, plaintiffs served interrogatories and requests for production of documents

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on all defendants. Defendants served responses to those discovery requests variously on August 25,

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2010 (Centocor), September 24, 2010 (Par Pharmaceutical and Teva), October 4, 2010 (Abbott

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Laboratories) and November 15, 2010 (GlaxoSmithKline). Defendants indicated that responsive

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documents would be provided or made available for inspection and copying subject to the entry of a

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protective order.

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On July 28, 2010, plaintiffs’ counsel sent an email to counsel for defendant Abbott

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Laboratories asking her to identify 30(b)(6) witnesses for deposition, Exhibit 1, to which she

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responded the next day that Abbott would endeavor to identify the appropriate witnesses. Exhibit 2.

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In Abbott’s responses to plaintiffs’ discovery requests, various witnesses with knowledge are

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identified but Plaintiffs state that their depositions cannot be properly conducted until the underlying

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documents have been reviewed.

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On or about December 20, 2010, the Court granted the parties’ request to extend the deadline

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to conduct mediation to June 29, 2011. On or about February 3, 2011, the Court granted the parties’

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request to extend the discovery end date until June 30, 2011, and ordered that Plaintiffs designate

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testifying experts and provide related reports by August 12, 2011, Defendants designate testifying

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experts and provide related reports by October 30, 2012 [sic], the parties complete expert discovery

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STIPULATED REQUEST FOR ORDER EXTENDING TIME AND [PROPOSED] ORDER

CASE NO. 4:09-CV-04124-CW

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on or before December 14, 2011, and dispositive motions be heard on or before (and a case

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management conference would be set for) January 26, 2012. The trial date was not continued.

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A protective order was ultimately entered by the Court on April 19, 2011. Thereafter,

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Defendants collectively produced millions of pages of documents on disk drives to Plaintiffs. These

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productions occurred variously on April 19 (Centocor) and May 11, 18 and 24, 2011 (Abbott).

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Defendants GlaxoSmithKline, Teva and Par have offered to make documents available for

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inspection and copying in response to Plaintiffs’ requests. Defendant Centocor has offered to make

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available for inspection and copying its hard-copy production.

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The parties have completed key depositions in this litigation, such as the deposition of Maxx

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Wendell’s prescribing physician on April 11, 2011, and of Plaintiffs and another family member on

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June 14, 2011. On several occasions, the last of which occurred on June 16, 2011, the parties

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conferred about issues related to timing of mediation, potential dispositive motion practice, and

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further discovery.

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The parties have agreed to mediate this case with Honorable Rebecca Westerfield. The

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parties are attempting to identify a mutually agreeable date in August but will, in any event, schedule

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the mediation to occur on or before September 15, 2011. The parties believe that a stay of

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discovery until after the mediation or, if the mediation is unsuccessful, until after the ruling on the

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motions for summary judgment discussed below, will allow the parties to conserve resources for

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settlement, conserve judicial resources, and help resolve the litigation.

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Defendants plan to file motions for summary judgment based on the learned intermediary

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doctrine. Defendants do not need additional discovery to file such motions. Plaintiffs have

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conducted all discovery needed to oppose such motions and do not plan to oppose the motion on the

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grounds that further discovery is necessary.

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Should those motions and the mediation be unsuccessful, some additional fact discovery

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would need to be conducted by the parties. Plaintiffs would need to conduct additional discovery

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bearing on the issues of the adequacy of the warning labels which will not only involve reviewing

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and selecting pertinent documents from the electronic discovery provided by Defendants but also

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STIPULATED REQUEST FOR ORDER EXTENDING TIME AND [PROPOSED] ORDER

CASE NO. 4:09-CV-04124-CW

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conduct depositions pursuant to Fed. R. Civ. P. 30(b)(6). If they have not already done so, Plaintiffs

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will supplement their responses to Defendants’ written discovery requests by providing (1) a list of

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the categories of damages they seek and amounts for each and (2) certain responsive documents

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Plaintiffs testified were available but which have not yet been produced to Defendants. Further fact

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discovery to be conducted by Defendants includes taking additional depositions of at least two of

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Maxx Wendell’s treating oncologists1 and any discovery arising from Plaintiffs’ responses to written

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discovery previously propounded by Defendants.

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THE PARTIES HEREBY STIPULATE AS FOLLOWS:

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1.

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The parties hereto request that the June 29, 2011 deadline for the parties to conduct

private mediation be continued to September 15, 2011.

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2.

The parties request that all other deadlines be vacated.

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3.

The parties request that discovery be stayed until after the mediation or ruling on

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defendants’ motions for summary judgment, whichever comes later; at that time the parties will meet

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and confer to determine a proposed schedule for remaining fact discovery listed above, expert

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discovery, other pre-trial deadlines, and a new trial date.

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The parties will file a proposed scheduling order within two weeks of the mediation

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(in the event it is unsuccessful) or ruling on defendants’ motions for summary judgment, whichever

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comes later.

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These depositions were previously scheduled for June 24, 2011. The parties would like to continue these depositions to
after the mediation to avoid incurring potentially unnecessary costs.
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STIPULATED REQUEST FOR ORDER EXTENDING TIME AND [PROPOSED] ORDER

CASE NO. 4:09-CV-04124-CW

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DECLARATION PURSUANT TO L.R. 6-2(a): The parties declare that (1) the

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reason for the requested enlargement of time is to allow the parties to engage in mediation, potential

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early dispositive motion practice and additional discovery should mediation or motion practice fail

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to dispose of the case; (2) as set forth above, the parties anticipate that this modification of the

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discovery end date will affect other deadlines including the April 2012 trial date.

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DATED:

June 22, 2011

/s/ Kevin Haverty
Kevin Haverty (pro hac vice)
WILLIAMS CUKER BEREZOFSKY,
LLC
Woodland Falls Corporate Park
210 Lake Drive East, Suite 101
Cherry Hill, NJ 08002
Counsel for Plaintiffs

/s/ Andrew P. Bautista
Andrew P. Bautista (pro hac vice)
KIRKLAND & ELLIS LLP
300 North LaSalle
Chicago, Illinois 60654
Counsel for Abbott Laboratories

/s/ Michelle A. Childers
Michelle A. Childers
DRINKER BIDDLE & REATH LLP
50 Freemont Street, 30th Fl.
San Francisco, CA 94105
Counsel for Centocor Ortho Biotech, Inc.
and Johnson & Johnson

/s/ Prentiss W. Hallenbeck, Jr.
Prentiss W. Hallenbeck, Jr. (pro hac vice)
ULMER & BERNE LLP
600 Vine Street, Suite 2800
Cincinnati, OH 45202
Counsel for Teva Pharmaceuticals
USA, Inc.

/s/ William A. Hanssen
William A. Hanssen
DRINKER BIDDLE & REATH LLP
333 South Grand Ave., Ste. 1700
Los Angeles, CA 90071-1504
Counsel for SmithKline Beecham
Corporation
d/b/a GlaxoSmithKline

/s/ Prentiss W. Hallenbeck, Jr.
Prentiss W. Hallenbeck, Jr. (pro hac vice)
ULMER & BERNE LLP
600 Vine Street, Suite 2800
Cincinnati, OH 45202
Counsel for Par Pharmaceutical, Inc.

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PURSUANT TO STIPULATION, IT IS SO ORDERED. Defendants shall notice their motion on
the learned intermediary defense for not later than Jan. 26, 2012, and a case management conference
will be held on that date at 2 pm.

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June 23
Dated: _________________, 2011

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CLAUDIA WILKEN
United States District Judge

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STIPULATED REQUEST FOR ORDER EXTENDING TIME AND [PROPOSED] ORDER

CASE NO. 4:09-CV-04124-CW

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ATTESTATION PURSUANT TO GENERAL ORDER 45

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I, Kevin Haverty, am the ECF user whose ID and password are being used to file this

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STIPULATED REQUEST FOR ORDER EXTENDING TIME AND [PROPOSED] ORDER. In

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compliance with General Order 45, X.B., I hereby attest that the following attorneys have concurred

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in this filing: Andrew P. Bautista, counsel for Abbott Laboratories; Michelle A. Childers, counsel

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for Centocor Ortho Biotech, Inc., and Johnson & Johnson; Prentiss W. Hallenbeck, Jr., counsel for

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Teva Pharmaceuticals USA, Inc., and Par Pharmaceutical, Inc.; William A. Hanssen, counsel for

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SmithKline Beecham Corporation.
/s/ Kevin Haverty

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STIPULATED REQUEST FOR ORDER EXTENDING TIME AND [PROPOSED] ORDER

CASE NO. 4:09-CV-04124-CW

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on June 22, 2011, I electronically filed the foregoing

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STIPULATED REQUEST FOR ORDER EXTENDING TIME AND [PROPOSED] ORDER with

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the Clerk of the Court using the CM/ECF system which will send notification of such filing to the

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email addresses registered, as denoted on the Court’s Electronic Mail Notice List, and I hereby

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certify that I have mailed a true and correct copy of the foregoing document via the United States

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Postal Service to the non-CM/ECF participants listed below:

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John D. Winter
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue Of The Americas
New York, New York 10036-6710

Jeffrey F. Peck
Ulmer & Berne LLP
600 Vine Street, Suite 2800
Cincinnati, Ohio 45202

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I declare under penalty of perjury under the laws of the United States that the foregoing is true and

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correct.

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DATED: June 22, 2011

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By: s/ Kevin Haverty

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Kevin Haverty, pro hac vice
WILLIAMS CUKER BEREZOFSKY, LLc
[e-mail]
210 Lake Drive East, Suite 101
Cherry Hill, New Jersey 08002
Telephone: [phone]
Fax:
[phone]

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CERTIFICATE OF SERVICE

CASE NO. 4:09-CV-04124-CW