Krueger v. Wyeth Inc, et al

Filing 168

ORDER denying 164 Defendants' Motion for Leave to Re-Depose Plaintiff April Krueger. Signed by Magistrate Judge Mitchell D. Dembin on 6/1/12. (Dembin, Mitchell)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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APRIL KRUEGER, Individually and on
behalf of all others similarly situated,

CASE NO. 03cv2496-JAH (MDD)
ORDER DENYING
DEFENDANTS’ MOTION TO
RE-DEPOSE PLAINTIFF

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Plaintiff,
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v.

[DOC. NO. 164]

WYETH, INC., f/k/a AMERICAN
HOME PRODUCTS, a Pennsylvania
Corporation, et al.,
Defendants.

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Before the Court is Defendants’ motion to re-depose April Krueger, the class

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representative Plaintiff. The motion was filed on May 25, 2012. (Doc. No. 164).

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Defendants supplemented their motion on May 29, 2012. (Doc. No. 165). Plaintiff

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responded in opposition on May 31, 2012 (Doc. No. 166).

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Background
In this litigation, Plaintiff alleges Defendants’ advertising campaign

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misrepresented the benefits and failed to disclose the risks of its hormone

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replacement drugs during the class period. The underlying class action complaint

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was filed in this district on December 12, 2003. (Doc. No. 1). On March 20, 2004, the

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Judicial Panel on Multidistrict Litigation transferred this case to the Eastern District

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of Arkansas for coordinated pretrial proceedings. (Doc. No. 6). On March 20, 2007,
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after that court declined to certify a multi-state class of consumers alleging consumer

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fraud and seeking medical monitoring for any future injuries that arise from their

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use of Prempro, it remanded Plaintiff’s case to this district. (Doc. No. 9).

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Back in this court, Plaintiff moved to certify a class on May 14, 2007. (Doc. No.

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15). That motion was denied without prejudice on February 19, 2008. (Doc. No. 44).

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On March 4, 2008, Plaintiff moved to stay all proceedings pending the outcome of

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certain litigation pending before the California Supreme Court. (Doc. No. 47). The

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stay was granted, ultimately, until July 31, 2009. (Doc. Nos. 52, 58). On January 7,

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2010, Plaintiff again moved for class certification. (Doc. No. 61). That motion was

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granted in part and denied in part on March 30, 2011. (Doc. No. 108). A motion for

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reconsideration was denied on July 13, 2011. (Doc. No. 122). The Court of Appeals for

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the Ninth Circuit declined permission to appeal the class certification order on

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October 18, 2011. (Doc. No. 124).

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The class, as certified by the District Court is:

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All California consumers who purchased Wyeth’s Hormone Replacement
Therapy products, Premarin, Prempro, and/or Premphase, for personal
consumption between January 1995 and January 2003, and were
exposed to a representation from Wyeth, or health care providers, or
read in literature in which Wyeth advertised or provided to third parties
to be disseminated under its brand or the third parties’ brand, that
Premarin, Prempro, and/or Premphase lowered cardiovascular,
Alzheimers and/or dementia risk, or did not increase breast cancer risk,
and do not seek personal injury damages resulting therefrom.

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Discussion

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Plaintiff Krueger initially was deposed on April 13, 2005, during the

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Multidistrict Litigation (“MDL”) proceedings. That deposition was taken pursuant to

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Practice and Procedure Order No. 1 issued by the MDL court. (Doc. No. 164, Exh. 2).

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That Order limited discovery to class certification issues and specifically prohibited

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any “merits” discovery, except for required initial disclosures and for interrogatories

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and document requests. (Id. at §§ 13.1, 14.1). Regarding the identified class

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representatives, including Ms. Krueger, the Order required these Plaintiffs to provide

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or disclose certain information including “any materials about Prempro or hormone
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replacement therapy that she received, read and/or viewed . . . .” (Id. at § 13.3(e)).

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The Order also provided that the identified class representative Plaintiffs, including

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Ms. Krueger, were subject to deposition and “will not be subject to additional

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deposition examination as to matters on which they could have been examined at the

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time of the initial deposition, except upon stipulation or by order of the Court.” (Id. at

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§ 13.6). Defendants were ordered to make a good faith effort to conduct the

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examination so that a further deposition would be unnecessary. (Id.)

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Defendants assert that a further deposition of Plaintiff Krueger is necessary.

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They contend that their initial examination was limited to class certification issues

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by the MDL Order discussed above; that statements made by Plaintiff in later filings

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warrant examination; and, that the passage of six years suffices for Defendants to be

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allowed to inquire of Plaintiff her current view of the issues in litigation. Plaintiff

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counters that Ms. Krueger was examined extensively on merits issues during her

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initial deposition; that the subsequent case filings do not reflect new issues or claims

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sufficient to require Ms. Krueger to be re-examined; and, that the mere passage of

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time is not sufficient grounds for re-examination.

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The Court has reviewed the transcript of Ms. Krueger’s deposition. It covers

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219 pages and lasted about 4 hours. (Doc. No. 166, Exh. 1). Defendants’ counsel had

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the opportunity to and did inquire of Ms. Krueger regarding her exposure to articles

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and advertisements regarding Prempro and other hormone therapy drugs. It does not

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appear that the examination was limited. Defendants, although referring to the MDL

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Order’s prohibition on taking “merits” discovery, have not identified areas of inquiry

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that were not explored because of the MDL Order. Defendants reliance on alleged

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inconsistencies between her deposition testimony and later filed declarations to

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support their motion to re-depose Ms. Krueger actually mitigates against their

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position that the limitations of the MDL Order had any bearing upon their

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examination. Defendants have not raised any avenue of inquiry that they did not

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actually pursue in the initial deposition. There are no new claims or defenses and no
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new parties. The fact that six years have passed does not provide a basis to subject

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Ms. Krueger to a further deposition.

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The Court is left with the firm impression that Defendants seek to re-depose

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Ms. Krueger primarily to attempt to impeach her earlier testimony. If that is their

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desire, they may have the opportunity to do so at trial. The Court finds that

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Defendants have failed to show good cause for a second deposition of Ms. Krueger.

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Conclusion

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For the foregoing reasons, Defendants’ motion to re-depose Ms. Krueger is

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DENIED.

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IT IS SO ORDERED:

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DATED: June 1, 2012

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Hon. Mitchell D. Dembin
U.S. Magistrate Judge

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