City of Winter Haven v. Cleveland Indians Baseball Company Limited Partnership

Filing 605

EXHIBIT 11

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION - -- o 0o - --

I n R e: S e r o q u e l P r o d u c t s Liability Litigation MDL Docket N o . 1769 Case N o . 6 : 0 6 - m d - 0 1 7 6 9 - A C C - D A B _ __ _ __ _ __ _ __ _ __ __ _ _ __ /

TELEPHONE CONFERENCE BEFORE SPECIAL MASTER BROWN

T a k e n b e f o r e E A R L Y K. L A N G L E Y , R M R CSR N o . 3537 O c t o b e r 15 , 2 0 0 7

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RUSSELL STEWART (by telephone), Faegre & Benson LLP, 3200 Wells Fargo Center, 1700 Lincoln Street, Denver, Colorado 80203-4532, appeared on behalf of the Defendants.

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TELEPHONE CONFERENCE BEFORE SPECIAL MASTER BROWN

BE IT REMEMBERED, that pursuant to Notice, and on the 15th day of October 2007, commencing at the hour of 10:06 a.m., in the offices of Aiken & Welch Court Reporters, One Kaiser Plaza, Oakland, California, before me, EARLY K. LANGLEY, a Certified Shorthand Reporter, the following proceedings were held telephonically in said cause.
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ORRAN BROWN (by telephone), Brown Greer PLC, 115 S. 15th Street, Suite 400, Richmond, Virginia 23219-4209, appeared as Special Master.
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DENNIS CANTY (by telephone), Levin Simes Kaiser & Gornick, LLP, 44 Montgomery, 36th Floor, San Francisco, CA 94104, appeared on behalf of the Plaintiffs.
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BUFFY MARTINES (by telephone), Laminack, Pirtle & Martines, 440 Louisiana Suite 1250, Houston, Texas 77002, appeared on behalf of the Plaintiffs.
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--oOo-P R O C E E D I N G S, --oOo-MR. CANTY: This is Dennis Canty. And I guess we should go on record. SPECIAL MASTER BROWN: Yes. Let's go ahead and go on the record and we'll take up this issue. MR. CANTY: At this point I have made a submission that there have been, I guess, several items of correspondence that have been gone back and forth between myself and Mr. Stewart to which I imagine you're privy. And then on Thursday, when it was decided that we would be on this call and be on the agenda, I sent kind of a position statement. And, Special Master Brown, have you had an opportunity to look at that? SPECIAL MASTER BROWN: Yes. And this is Orran Brown, and I do have a submission from Mr. Canty dated October 11 that I have reviewed, and this issue about the timeliness of some designations of sales representatives for depositions relative to when disclosures were made. We have discussed it at times with the parties, with Ms. Martines and Mr. Stewart, and I'm happy to take up this issue now, and see if we can get as far as we can with it to resolve it if we

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can. I have your submission, Dennis, and have been through it. I have other things from, papers from the time this has come up before and why don't we do this. I would like to have everybody say their peace on this. It does not have to be in a very formal manner and I have a few questions of my own and why don't we just sort of have a discussion about it. How many cases right now, and how many sales representatives present this issue total? MR. CANTY: From our perspective, at this point, the reason this issue has come to light is because of AstraZeneca's refusal to produce sales reps in the Frederick, Glover, Coppola and Thomas cases, four cases. I don't know to what extent AstraZeneca's disclosures have been deficient in cases that are under Buffy's purview but those are the four clients at this point where AstraZeneca is refusing to produce sales reps. SPECIAL MASTER BROWN: All right. So there are four cases that you have, and then since we observe very few formalities in these calls, we can still continue to call each other by first names, even though we have a court reporter, as far as I'm concerned.
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recommendation on it to try to deal with all seven cases at once. And, and this brings us to today. So that on the -- do you have anything, Dennis, that you would wish to say or add to your written submission dated the 11th of October? MR. CANTY: Again, this was put, you know, put together kind of quickly, obviously, you know. The entire discovery, date-specific discovery has caused everybody to be a little bit compressed. I would say that probably the easiest way to get to a determination on this issue is to ask AstraZeneca point blank when, if at any time, it produced all available documentation of contact with the physician witness. That may include the -- the sale -- the call notes. It may include the IMS data which, to my knowledge, has never been produced in the format ordered by the court, nor has it ever been produced completely, and I guess finally perhaps ask you that and whether they have ever produced any accounts payable record in any of these cases. And, when you -- when you reach the determination that they have not done that, then by the plain language of CMO 4, plaintiff's time to designate a sales rep can begin to run. So maybe I think that

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But Russell, how many others other than those four? I think at one time we had maybe a total of seven cases that were at issue. MR. STEWART: That's correct. This is Russell Stewart. There are the Olive case, which is the Mathews's firm, the Sonier case of which Ken Smith is the plaintiff's attorney and then the Hodge case which we have discussed previously on this call. Seven total. SPECIAL MASTER BROWN: Seven total. Four with Dennis and then three others. And the Haas case we discussed in our last call is actually Cranford's case. MR. STEWART: Correct. SPECIAL MASTER BROWN: And then when we talked about the Haas case in that call without you present, Dennis, we had been through the particular facts of this one, and I had indicated that in that circumstance, I felt that the entire series of things could sort of be chalked up to sort of a transition period from no PMO to a PMO and then working out how the CMO 4 was going to work. So on the one, we reached a -- I reached a feeling that that one would be allowed. This deposition would be taken. But then we tabled that issue and I haven't issued any report and
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the best way to go about it is to ask AstraZeneca when did you produce it. SPECIAL MASTER BROWN: Okay. Thanks, Dennis. Buffy, do you have anything to add to that, or is that going to cover at least at this stage until Russell has a chance to respond to everything you think that's an issue? MS. MARTINES: I'm sorry, Orran, are talking to me? SPECIAL MASTER BROWN: Yes. MS. MARTINES: This is to the court reporter. This is Buffy Martines as liaison counsel for the plaintiffs. With regard to all seven cases we've obviously had -- had a preliminary ruling in the Cranford case, we have the case from Ken Smith and Dave Mathews outstanding and Dennis is on the line because of his involvement with AZ from the start on this issue for the Gornick firm. I'm going to let him take the lead on these four and make his arguments, et cetera. I don't have anything to add to that, but obviously, I would withhold any arguments on the Mathews and Smith cases until we get to those. In other words, I think this discussion should just be with regard to the four Gornick cases.

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SPECIAL MASTER BROWN: Okay. Thank you, and Russell, you've heard all of this, we've talked about it some before. Do you have Dennis's October 11 package? MR. STEWART: I do. And this is Russell Stewart. Orran, do you have my October 10th letter which was attached to my agenda items? SPECIAL MASTER BROWN: Yes. I had that and I have been through it and I'm going to pull it back out. Just give me a moment. Yes, I have it in front of me now. MR. STEWART: That states our position, but let me respond directly to Dennis's questions here. The AP records have been produced, that is, the payable records, that's payables to physicians in all cases. And we have, in addition, supplemented those at times, as you know, as Buffy knows. But right now, the Gornick's firm, I believe, has AP in all of their cases, and we are producing payment information for all the cases now in November. And we have for all the cases in November and we are going forward. IMS same thing. We produced IMS information back to March 1999 for all cases.
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I recall, they were chosen in the end of August by us, or the 1st of September by the court or the plaintiffs. So the designation of time for designating their sales representatives was -- they were due August 7, 2007. And I did ask in my letter, you know, the question is, I take it the position of the plaintiff's is that the electronic format -- these weren't provided immediately in the electronic format. And as you can tell from our letter, that is precisely the same the changeover happened from paper to electronic and we subsequently did provide electronic. But I think that's not the issue because the electronic form has the same information as the paper form about the sales reps, so the determination of which is the proper sales rep wouldn't have changed, it wouldn't have affected that. It's the same information that was in paper that later was provided in electronic form. SPECIAL MASTER BROWN: And we -- this is Orran Brown again. When you say in electronic format? MR. STEWART: I mean a version of Excel as opposed to PDF. Actually all of our services are by e-mail, so as opposed to an e-mail containing a PDF, you know, I'm talking about in addition to that we also

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Except there is a lacking here. You know, it's really, you know, Dennis should call me and talk about any problems on these issues but we haven't really discussed the problems he's mentioned here. But I think the focus, or the important thing is the call notes, and Dennis asked me when we produced the call notes and in my letter we produced them on August 3rd, 2007. And for each of the four cases that Dennis has those call notes contain the names of the sales representatives through detailed product to the prescribing physician that was identified in those cases. And all of them contain notes from several years, and you can determine from those call notes at what time the PSSs were detailing the product and what time the plaintiff was being treated so that the plaintiffs can determine which sales reps were relevant to their case. So that's the answer. It was done on August 3rd. And they had that information necessary, and it's our position that the information necessary to designate the sales representatives is the call notes with the names of the sales representatives included. And these were all September. Plaintiff's, as
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now provide Excel in a native format so that you can have the call notes on your computer and search through them and do searches and things. SPECIAL MASTER BROWN: Okay. MR. STEWART: That's what happened. The changeover was about that time. SPECIAL MASTER BROWN: Before going back to Dennis Russell, do you have anything else to add at this juncture? MR. CANTY: There are some other issues. MR. STEWART: Just generally about some of these issues relating to the PSS designations, and we've discussed some of this with Ashley in the context of Ashley Cranford and the Haas deposition but, you know, I think the court entered this order in the MDL, and the case management orders are entered for the case-specific discovery for the purpose of making sure this can work, and it is a tight time frame. And I think that the court adopted this two-day designation to get things moving and make sure that this happened and we could all complete things in a timely way, and our interest and our concern is that looking -- looking back on these cases two months from now, start reopening and designating additional people to depose. It's just not going to work with our

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schedule. We're having -- as you know, it's all we can do now to do the 30 depositions a month, that we're doing and it's taxing us all. So that's our main concern is that we have a byline so we know when this is done and we can look back and say that there are no other PSSs that can be pulled from earlier months. SPECIAL MASTER BROWN: All right. This is Orran Brown. Russell, are the depositions, the other depositions for these four cases that Dennis has, have they all been completed except for the PSS for each case? MR. STEWART: I believe all the plaintiffs have. All the plaintiffs' depositions. Now I'm not sure -- and most of the physician depositions. But I don't have that in front of me. These are all September cases. So if they're not completed they're certainly in the process of being completed. We would -- and another issue that's related to this, too, is the timely -- the other plaintiffs in these cases have been able to designate sales representatives in a timely fashion, and there have
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the most sense. And the reason we take the plaintiffs first -there are a lot of reasons. But particularly because in this -- in this plaintiff population, there are a lot that just don't up show up for their depositions. So unless we can be sure that they're coming, it causes a great deal of expense for us to take depositions of physicians and sales representatives where the plaintiffs in the case don't participate and don't intend to proceed with their cases. So those are generally our concerns about this, Orran, and I think I've expressed our position before, but it's stated in our October 10th letter. SPECIAL MASTER BROWN: Appreciate it. Dennis, let's go back to you for a moment. And let me say this first. It is apparent that you had some disclosures on August 3, for the four cases, and that those disclosures did not contain everything at that time that you eventually got or were supposed to get, and they were not in a live Excel format which is the way it's being done now. I understand why they weren't. But it is a given, I think, that the initial disclosures that you got were not everything and they were not in a live Excel format.

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been a lot that have gone through, as you know. You get those in -- you have seen those and those have happened in August and September and throughout. The other issue that this raises is the October 4th letter from Mr. Canty designating these, also contained -- it also offered up the plaintiffs for depositions. But this was 40 days nearly after these plaintiffs were selected for participation. And that causes a problem, because, in our -- the fast pace that we have to complete these depositions when it takes 40 days to designate these plaintiffs that puts us all into a bind as far as scheduling coverage for those issues. So, that's an issue for us as well. And I also take it that there's an issue -- and Mr. Canty can address this -- of, I sense that Mr. Canty wants to take all of these depositions at the same time to save costs which is understandable. But I think as we've concluded through this, and our experience with this program so far is that we can't have that luxury, that we have to take the plaintiffs first and then we should take the sales representatives and then we should, if we can, try to schedule the physicians together. That's what makes
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So, let's talk about your feelings about how those two deficiencies, if you call them that, for lack of a better word now, impaired your ability to select a PSS for deposition, if they did, because I'm trying to relate the nondisclosures to the ability to pick someone. So, talk to me about how things that you point out quite well in your October 11 summary that were missing or not done by the book at that stage, let's say, how did that interfere with your picking the PSS for each of the four cases? MR. CANTY: Sure, Orran. There's two real components to that. One is it's not just the failure to disclose and not have the material that I should have. But also let's consider for a moment the fact that I communicated with Russell on that, and Russell said, "Fine, we'll get you what you need and we'll discuss it later." But there's two components to that and we'll take them one at a time. Number one, the Excel sheets, the formatting issue. With the data produced in native Excel format, I can sort, I can search and I can filter the data so that I can analyze, okay, well -- oh, and let's throw in there the new columns that they added.

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I can -- with the new data produced in the proper format, I can make a list as you will see in the exhibit that I attached Frederick, I believe it is. I can sort by the message. I can sort by the date. I can sort by the rep's sales name. I can do dates. I can say all right, I want to know all -- I'm going to look at the sales rep that called on the doctors between X date and Y date and deliver the doctor a minimum weight gain sales message. I can do that with the Excel files. And by court order I have the right to do that before I take the sales rep's deposition. What else do I have a right to do before I make a sales rep designation? I also have the right to IMS data in electronic format that tells me when, if at all, there was a spike in Seroquel prescription, or a falloff in Seroquel prescription. What else do I have a right to? I have a right to accounts payable records that tell me, okay, was the doctor paid, was the doctor paid by AstraZeneca to speak, was the doctor paid by AstraZeneca to speak about Seroquel and deliver a minimal weight gain message, in what time frame, and, therefore, what sales rep was visiting the doctor at -- at that time. Was that arrangement made.
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choose a sales rep. That's not what a COM 4 says. COM 4 says produce all available documentation about contacts with the physician witness. There's some comment about how, you know, other plaintiffs have been, you know, able to designate sales representatives. I guess just because they've been able to buffalo other people into -- into designating sales reps, they assume that, you know, they can do that in every case. And plaintiffs in this case, when it finally got down to it, in September, when they still didn't have any response to request for electronic format, made the designations anyway. That's what we did to move it along. At this point, you can't forget the initial correspondence on the issue. The initial correspondence on the issue, wrote a letter three days after receiving the disclosures, wrote a letter to, I guess it was an e-mail to Mr. Stewart saying these disclosures are deficient, we can't choose a sales rep from them. We are entitled to more information. We won't choose a sales rep until you give it to us. Mr. Russell -- Mr. Stewart wrote back, he said, okay, we'll give it do you and we'll discuss it later. Mr. Stewart didn't get back to me. He led me to believe that he was going to give

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I get to pick a sales rep that talked to the doctor about weight gain, and assisted him, or had communications with him about messages he was delivering to other doctors. All of that information came after August 3, 2007. And one thing that I will say is at this point, complete IMS data has not been produced and a complete accounts payable records, records, not interrogatory response, records, have not been produced in any of these cases. So, at this point, you know, we asked, my initial question was let's ask AstraZeneca when this stuff was produced. We didn't get an answer to that. What we got was, okay, we produced the initial call notes on August 3, 2007, and then we got a statement about how plaintiffs had everything right now. It was a nice way to kind of jog a little bit off topic. So, what we don't have is we don't have an answer to when these complete records were produced. At this point, the assertion that, you know, producing the call notes is all the info, all the information that we need to choose sales reps, that position. It's not borne out in COM 4. COM 4 doesn't say that. COM 4 doesn't say produce call notes in unsearchable PDF format and from that plaintiffs will
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me the information and then didn't produce it. And now, two months later, makes an argument that I have somehow waived the right to designate a sales representative. Those are the facts. SPECIAL MASTER BROWN: Okay. And this is Orran Brown again. As we stand here today going forward in other cases, is AstraZeneca applying this type of information in Excel format, and is it complying, you think, in other cases, with the CMO 4 duty to provide all the information including the IMS information? MR. CANTY: I'm aware of no case in which AstraZeneca has provided the information ordered by CMO 4. IMS data is entirely incomplete. IMS data, it's clear from deposition testimony, and, I guess, the comment at the July 27 hearing, that available IMS data includes new prescriptions, total prescriptions for Seroquel and for its competitors. At this point AstraZeneca has not provided that information in any case to my knowledge, nor has AstraZeneca in any case provided that information in electronic format as ordered on August 3. I am aware of no case, mine or others, in which

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AstraZeneca has produced an accounts payable record. SPECIAL MASTER BROWN: Okay. And I understand that, Dennis. Again, this is Orran Brown. Let me ask you, for the IMS data which deals with prescribing behavior, right? MR. CANTY: Correct. SPECIAL MASTER BROWN: And the accounts payable show payments by the company to physicians for speakers bureau or engagements or other things, and I'm not saying that it's not important, but, without giving away any of your strategic secrets, how do you use the IMS data or the accounts payable data, assuming you have it, to help you select which sales representative you think would be the one you need the most, recognizing you can only do one and you need to pick one. MR. CANTY: Again, if IMS data indicates that there was a spike in Seroquel prescriptions at a particular time, obviously, I'm going to want to know when that was and I'm going to want to know who was seeing that doctor at the time that spike occurred. If accounts payable data indicate that the doctor began speaking about Seroquel, I would want to know that. I would want to know who was seeing that doctor during that time frame and what messages were
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and I frankly didn't hear back from him, so I don't know that that's an issue. We have provided all IMS information, all AP information that is available to the company and we're doing that now. So I think that is the point. My concern is that under Mr. Canty's view here, is that these are never complete and there's never any limit on when we can -- when sales reps can be designated because under his view, none of the disclosures are complete. They'll never be complete and so he has no obligation to disclose them within the two days. That harkens back to one of my concerns and my interests here is that we have a rule and we kind of understand how this works so that we can complete what the court has ordered us to do in cases of specific discovery under the time lines and schedule the court expects us to complete this. MS. MARTINES: This is Buffy Martines. May I say a couple of words on behalf all of plaintiffs? First of all, with regard to what the CMS says regarding the production of electronic discovery, I have it right here in front of me, and it states, and

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being delivered. Now all of that would aid me in deciding who was the best sales rep -- I only get one at this point -- who the best sales rep is to take. And whether or not that's going to help me decide to pick a sales rep, that's getting far afield at this point. CMO 4 ordered it. There's no question as to whether that information helps me select a sales rep; it's been ordered. SPECIAL MASTER BROWN: I understand. All right. So, back to you, Russell, for maybe the last comment before we move on. MR. STEWART: We have provided AP information for all of the physicians and we provided IMS data back in March 1999 that we have, that AZ has in its possession. You know, Mr. Canty says that IMS is required to be produced in Excel form. I am trying to find the order here. I believe it just says that call notes electronic form. We would be happy to provide -actually my letter to him said the IMS information is really only on two pages or so. It doesn't do you much good to put it on Excel format or something like that. But if you really want it that way, we'd do it for him,
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I'm just going to read it, "As to case-specific discovery from defendant set forth in CMO 4, defendant shall provide the call notes for the prescribing physicians associated with that plaintiff in readily accessible electronic form. To the extent account payable records, IMS, prescribing habits and the PIR information for prescribing physician associated with that plaintiff are available in electronic form, defendant shall provide those in readily accessible electronic form." I just want to make a couple of comments on behalf of all plaintiffs, because I'm a little concerned about a few statements that have been made, and I'm very concerned with the situation described in Russell's letter last week. We have, in fact, discovered that all accounts payable information was not provided at first, that there is a problem with the searches in the databases and that's going to have to be taken up on a different level. But I believe Dennis is correct that the court ordered this information and we've been through this on -- in different issues, and the special master has taken a look at this. The court said this is the information that the

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plaintiffs are entitled to in order to make this selection and it specifically said that in a transcript. So I think that I understand AZ's position that call notes really should be enough, but I don't think AZ gets to make that decision. I think the court made the decision and, to be honest, it's a little like the chicken guarding the henhouse when the wolf -- whatever the heck that saying is -- when the person that's required to produce the information gets to say what information is enough for plaintiffs to make a decision. I think the order is clear, and on the whole we have a lot of -- plaintiffs in general have a lot of problems with this disclosure, not the least of which we've discovered that the accounts payable information that's produced is not correct, and at this point I don't have any way of knowing other than Russell's good word which I have no reason to disagree with that it's corrected now. So, I just wanted to make sure that that was clear and that plaintiffs had not waived, because we do have a lot of concerns with the disclosures that are being made at this point and that's going to come up at a later time.
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disclosures, that they're done in a way that everybody agrees they're supposed to be done, and that they're done timely and then we don't have continuing questions about timeliness of PSS designations relative to when there were supplemental disclosures. So that's a large problem for today and going forward for these four cases that Dennis has, and I understand fully, Russell, your point about how we're on a schedule, we're trying to meet the court's schedule, a lot of people all around the table working very hard to keep it on schedule and that anything that goes off schedule is a disruption that has potential ripple effects, and it causes hardship or readjustments, and on and on for schedules of all the lawyers and other depositions that are scheduled. So, if we add four to the plate that we have to deal with, that is always a problem. But is there any particular prejudice to AstraZeneca for having these four beyond this -- the need obviously to do them and the rearranging and having people cover them? Is there anything unique about these four that causes any particular heartburn? MR. STEWART: No. These are not unique. They're similar to all the rest. Although I will say

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But I wanted everyone to be clear on what this order did say, and my thoughts on what the Court's order means. Thank you. SPECIAL MASTER BROWN: Thank you both. You're reading from a July 12, 2007 order? MS. MARTINES: That is correct -- no, no, I'm sorry, Russell -- I'm sorry, Orran this is the August 3, 2007 order. SPECIAL MASTER BROWN: Yes, I have it. It's document 348. MS. MARTINES: I was reading from Section 3 on page 2. SPECIAL MASTER BROWN: I have it. Let's do this. Let me say this first, Russell, and then I have one last question for you and then we'll move on. We obviously have today's problem which are these four cases and there may be two others that we haven't addressed that have this question of late or potentially late PSS designations. Then we have tomorrow's problem which is going forward and making sure that we're all doing what we're supposed to do to tender plaintiffs for depositions and schedule them and these CMO 4 contact information
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given the timing on this, we would need some additional time obviously to contact these and get them scheduled. We would need some leeway in doing that, and I think also we'd need some kind of resolution or leeway on getting timely plaintiffs designation from the plaintiffs. That would help us as well so that we can in the future move on with this and so we can have discussion about having the plaintiffs taken before the sales reps for the purposes we've discussed. SPECIAL MASTER BROWN: All right. Because what I would like to do is solve this problem once and for all for all time to the best of our abilities and that means that we have to deal with the four cases, or the seven cases, and as I said, the last time, very tentative at this stage myself, while we're transitioning to the PMO, while we're all trying to figure out what CMO 4 does and make sure it's complied with and get our feet under us for making that work like clockwork like it's supposed to, that prejudice to the plaintiffs of not being able to depose a particular PSS for a particular case probably outweighs the prejudice to the system and to AstraZeneca from having to go for these four depositions. That's where I come out on the four or even the seven. Because there is plenty to debate about what

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was going on and who was doing it and the timeliness of it and the format. It got us to this point, and I'm tempted to say let's take care of what got us to this point by doing these and getting them out of the way on an orderly schedule rather than ruling at this stage that the timeliness was such that they cannot be deposed at all. But that only solves part of the problem. We have to get to the point where we all know what's happening on these disclosures and when they're happening, and in what format they're supposed to happen, so that we remove any debate about when the PSS designations are due, and we have to make sure that the order of discovery that we are trying to follow, which does have the plaintiffs deposed in the earlier part of the month, and in general, in front of the physicians and sales representatives, that those plaintiff depositions are arranged from month to month so that they happen in that due order. Sometimes it's impossible for various reasons, but that ought to be the goal every month. And so we do want to have going forward the commitment and understanding that the plaintiffs' depositions will be tendered up in the early parts of each month for that particular month, and that
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difficult to apply. So what we really need to do is get on the playing field where these disclosures are made, they're made once, unless something completely out of your control happens, and the two days is running and we can all tell when they start to run. Because if we don't solve that problem we're just going to have this over and over and over. And, unless, Russell, you're in a position to discuss some agreements that these four will go forward or these seven will go forward and we'll get these under our belt and behind us, then that would be my ruling on it and another report and recommendation that these four that we're talking about today will be treated like the Haas case, that they will be considered to be in this transition period, and there are arguments on both sides of the table that are very legitimate about how things happen and when they happen, but that the prejudice of not doing them is going to outweigh the prejudice of doing them at this stage, provided we can fix the problem going forward. And that's a problem that we can talk more about today. And I guess the issue then for you, Russell, is whether you're in a position to be able to say that the main three components of these disclosures

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everybody will work hard to get them scheduled. I'm not saying that anybody hasn't. I'm just saying that's the way it needs to be from here out to take care of that issue. On the other issue about CMO 4 contact disclosures and whether they're complete and whether the two business days have started to run, we've got to do one of two things. We've either got to make sure that we understand what is being disclosed all at one time and in a format that everybody finds acceptable and that Russell and his folks have done everything that they need to do to get that stuff out there in -- within the five business days, so that the two days are running, or we have to say that there's still some holes in that that we're trying to fix, and we cannot fix today, because the accounts payable information is still -you're still trying to work through all that, Russell, or whatever. And we have to say the plaintiffs have to designate their sales representative within two business days, even if they still feel like there's something missing, unless what's missing is really substantial and material to making that choice. And I understand that's difficult, would be
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that you have to provide being the call notes, this prescribing behavior information, the IMS -- IMS data that people call it, and the accounts payable records, are you all -- you and all of us then in a position where you can get your hands on that information generally, in time to produce it within the five business days, all three of those pieces, and, once we get past that point, is it -- what form is it in? Is it in live Excel, and it does seem like the court wants the call notes to be in accessible electronic form, and the other information to be in electronic form to the extent it's already in electronic form is the way the order reads. MR. STEWART: Would you like me to respond, Orran? SPECIAL MASTER BROWN: Yes. Can you tell me where you are on that and how comfortable you are with being be able to say we can get our hands on all of it and it's all going to be within the five business days? MR. STEWART: This is Russell Stewart again. Right now our disclosures, the ones we just finished for November are complete. They have the complete accounts payable records information that we have, and for these doctors.

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It has the complete IMS and it has the complete PIRs which are the physician information requests to the extent we have them in the company. And the call notes are being produced in Excel form as we've talked and also in paper form. Frankly, a little bit of this is surprising me because I haven't heard this, some of these issues that are talking about with the AP records and IMS. If there are problems with that, I do want to know what those are so we can sit down and we can bring that up probably on another call to see exactly what it is the plaintiffs are unhappy with or want us to look at because I haven't heard that. I haven't heard complaints from any of the plaintiffs about, recently, about the disclosures we're making. MS. MARTINES: Well, now, Russell that's not true. MR. STEWART: Once you brought to us an issue of this is a problem, we've tried our best to remedy it, you know, to get on it and fix it as fast as we can. So, we, you know, in our view, we pride ourselves in being responsive to issues of plaintiffs. There was another issue, for example, Orran, of
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time to find them and all that. We will -- certainly, obviously, you have to do that. MR. STEWART: Actually, Orran, I may be able to relieve you of that obligation to do a report. I mean we can do it either way. I think given your sense of how you like us to do this, as long as we can have some issue of timing with these plaintiffs and also some resolution of the, you know, the timing to do these PSSs and get them scheduled and also some discussion of what you mentioned, which is getting the plaintiffs first and getting the schedule so that the plaintiffs happen first and we know whether the plaintiffs are proceeding before the PSSs are deposed. That would be, you know, very helpful. And, I'm not sure that you actually need a report and recommendation unless you want to because we're prepared to proceed on that. SPECIAL MASTER BROWN: All right. Then how long do you think, Russell, to set up these four? MR. STEWART: We haven't talked to them so we'd need -MS. MARTINES: Can I ask a question. Are we going to go ahead and include the -(inaudible).

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some of the call notes not containing the entire verbiage, were being truncated. And as soon as we learned that, we fixed it and filed supplemental call notes. Early on in this case, the call notes were produced in a way that was very difficult to read, and we corrected that. But it has to be a give and take between plaintiffs and defendants in talking about it and meeting and conferring about what it is that's going on. But right now, in our view, the record disclosures we are doing are complete. So but if there's a view that's not true, I suppose it's something we should take up and plaintiffs should state their position and we should talk about it at the next call. Is that -- is that responsive to your question, Orran? SPECIAL MASTER BROWN: Yes, it is. And this is Orran Brown again. This is what I would like to do, and unless, Russell, you can say we agree to take these four and be done with it, then I will issue a report and recommendation that says these four depositions of these PSSs will be scheduled and you said you needed
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Buffy Martines. My question to Orran and Russell is are we going to go ahead and include the Haas, H-a-a-s, case from Ashley Cranford's office with this four, or is the Special Master's office going to issue a report on that case? SPECIAL MASTER BROWN: Russell, that's really up to you because now it comes down to whether you can agree that these five will be done and go ahead and schedule because if I do issue a report, which is fine if I do, then I would have the same -- it will have the same content that we're going to go ahead and do the deposition of the PSS and Ashley Cranford's case as well. MS. MARTINES: I just wanted to make sure that one didn't get lost in the shuffle. MR. STEWART: Would your report and recommendation also address the other issues, Orran, about the timing and deadlines? SPECIAL MASTER BROWN: If need be. But let me tell everybody what it would say, and that is, we are -- unless there's some extraordinary circumstances, we are following the order of discovery that has the plaintiffs in a given month that are designated for a month made available and tendered for deposition in the first half of the month,

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and, as a general rule, before we schedule the PSS and physician depositions. It's not 100 percent the rule because circumstances make one or the other impossible to schedule on that schedule. But that is the general rule and what everybody should be working towards on both sides of the table. The second piece is is that going forward with AZ making disclosures under CMO 4, contact information, and making the call notes available in live Excel format, and making the other information available in electronic format if it exists that way, as the order requires, then the PSS designations are due within two business days of those disclosures, the initial disclosures, unless Dennis, you, or Buffy, or any of your colleagues, see a problem that you point out to Russell and to me within that two business days, that is somehow keeping you from making your designation, because going forward, they either have to be made within two business days, or you have to raise it as an issue that you feel that those particular disclosures are incomplete and we deal with it on the ground within that two-day period, assuming that -- I think in most instances we'll be able to do that so that we don't have it lingering or festering or growing as we get
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that we will have some extra time, probably 60 days to schedule these particular four, or -SPECIAL MASTER BROWN: Let's say the particular five. MS. MARTINES: And if we're trying to settle all of this now, I will concede and Russell may note some facts on Olive and Sonier. I mean if we're going to try to clean all this up now, I mean I'm sure Russell is going to disagree with me but why don't we clean up these last two as well. MR. STEWART: I'm tempted to, Buffy, but I haven't heard whether they really want to take them now. Literally I've heard nothing. MS. MARTINES: Can we assume they do and if they don't, that's just two less to schedule. I can confirm that they want to do them. But can we have an agreement right now that if the plaintiffs want to move forward on those two it can be done? MR. STEWART: I assume Orran has indicated his ruling would be the same on the others as well. MS. MARTINES: Right. I just wanted to make sure. We're sure on 4 and 5. If we can finish this today and get to all seven and call it a day, that would be, I think that would get us down the road.

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further and further away from the time that the cases were supposed to be discovered. So that's what -- if I issue anything on this issue, it's going to try to be global in the sense that we will take these five depositions, and we haven't addressed the specifics of the other two, but, unless there's something really different about them, that's where I come out on that, too, as transition issues, get them done, they should be done because the prejudice of not doing them to the plaintiffs outweighs the schedule and inconvenience and cost to the system and to the defendants from having to do them, but going forward it's not going to happen again, and we're going to deal with plaintiffs being scheduled first unless we all figure out that we can't, and PSS designations being made within two business days of whatever initial disclosures you get unless you -- whoever gets them feels that they're inadequate and then it raises a question within those two business days to the defendants, to Buffy and to me, that we take up contemporaneously so that we don't have this issue coming up every month. MR. STEWART: This is Russell Stewart. I think you probably just made your -- all we need as the parties here. In addition to the proviso
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SPECIAL MASTER BROWN: That's what we should do. Russell, are you okay with that? MR. STEWART: Sure. As long as we get our extra time, one, as long as we talked about the issue you mentioned of the scheduling order, that's fine. SPECIAL MASTER BROWN: All right. Now, 60 days to set these seven PSS depositions. Is that what you feel like you need? MR. STEWART: I think given that they're on top of the rest of our depositions that would be helpful to us for our scheduling purposes. SPECIAL MASTER BROWN: Does anybody object to that? MS. MARTINES: I don't. Dennis, are you okay with that? MR. CANTY: At this point, it seems that AstraZeneca has not yet contacted the four sales representatives designated in September, and I don't think that at this point -- I think the sales representatives' depositions were late when they were noticed in October, but if we really are going to take another 60 days, there's nothing they can do about it. SPECIAL MASTER BROWN: All right. Then let's do this.

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Russell, I know you'll do this anyway. But let's get them done. As soon as we can, if you can contact them and try to arrange them and get them fit in as soon as your best efforts will allow. MR. STEWART: We will. SPECIAL MASTER BROWN: But no later than 60 days from today. Okay? And try to beat that if you can, but, no later than 60 days from today. MR. STEWART: Okay. SPECIAL MASTER BROWN: All right. On the second two pieces of this puzzle, and that is, plaintiffs being set first part of the month, the two days for disclosures, unless somebody raises a flag and says there's a problem that's keeping me from designating the PSS, those two pieces of trying to solve the problem going forward, does anyone have any questions or comments about that? MR. CANTY: This is Dennis Canty. I'm not sure I quite understand the plaintiffs-in-the-first-part-of-the-month theory. Can someone just make sure they explain that to me again so I can follow it? SPECIAL MASTER BROWN: This is Orran Brown. Let me, Dennis, tell you why that seems to be appropriate to me.
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fail to appear for their depositions. And in some cases those cases go away, and that eliminates the need to spend the time and money to depose any physicians or PSS at all. So, trying to meet the goal of having plaintiffs first is really trying to serve those procedural, sort of efficiency concerns. MR. CANTY: Can I address that? SPECIAL MASTER BROWN: Sure. MR. CANTY: No. 1, no matter what anybody said about plaintiffs not showing up for depositions, at this -- no one has ever shown up for a plaintiff deposition for this firm where that's happened. So that's -- I don't know what's going on with anybody else. If there's a scheduling problem we let you know about it ahead of time. With respect to plaintiffs being taken first. At this point, and again, the procedure with my firm may differ because I don't know what's going on if -if the Bailey firm is producing their plaintiffs in Texas, that's what's going on, but we don't do that. We fly out. So at this point, you know, from a -- from a travel, attorney travel and attorney time perspective, probably on both sides, it doesn't make any sense to

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One is just from a logistical issue. We have often found it very difficult to get the doctors in the first part of the month by when we're calling them so they kind of fall in later parts of the month anyway. That should become less and less of an issue as we move towards designating 60 days in advance and we're talking to doctors sooner. So there's one logistical issue that the PMO has seen at least in when we set the physicians. And the plaintiffs are people that you have control over and you can generally make them or have them appear whenever, the doctors are third parties and we can't do anything about it, so we've been working deeper into the month because it's further away. Second issue is is that from a sort of process standpoint, it to me generally is more efficient if the plaintiffs are done in advance of the physicians, because it seems that you often learn things at a physician deposition that can -- that may make a difference as to who the real treater is you want, or who, sometimes the prescriber is who you want, and it can alter the physician who's eventually deposed for that case. Plus there have been for lots of reasons, some of them very good ones, instances where the plaintiffs
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have plaintiffs in the first half of the month and then make another trip out for doctors in the second half. From the process standpoint, taking the plaintiffs in advance, whether -- no matter what you learn at a plaintiff's deposition, it can't possibly alter your choice for prescriber because he designated a prescriber at the beginning five days from the designation of the plaintiff when you produce the call notes. Now, with respect to the, whether it alters the choice of treater, why should -- why shouldn't we be designating treaters at the same time. At this point, we have -- I guess AstraZeneca gets it for 30 or 60 days depending on this new schedule he develops, gets to review records of the treater, prepare for the treater's deposition, and then give us, what, ten, 15 days notice of a treater deposition when they've had all this other time to prepare? Why are we not designating treaters at the same time we're designating prescribers? Why should a plaintiff's deposition going forward and testimony learned at a plaintiff deposition thereby affect AstraZeneca's choice of treater? SPECIAL MASTER BROWN: Dennis, I understand all

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those points. They're all very good questions and very good points, and if there are instances to achieve consolidation of travel, then, yes, the parties should be trying to do that, and, yes, we try to do that if plaintiff is going to be deposed and you're flying out to that particular location and the physician is there. We all should make an effort to try to coordinate those so that they're done together. And I hope the parties are doing that. So far it's been difficult to make that happen because we've been operating on a compressed schedule and trying to get them done in a month regardless of whether we are achieving sort of travel efficiencies or not. So far, the designation of treaters has lagged some behind prescribers because it requires the defendants to go through more documents to try to pick which one of the treaters is the best one to depose. And so far we're working within that. It does happen fairly quickly but it's not done the same time as a prescriber which is a more obvious choice. But I understand all your points and what we can do is just try to monitor it as we go forward, try to hit this question about doing them in that sequence, because that's what I think is the most efficient way to do it so far.
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believe, and Russell and Dennis may correct me if I'm wrong, that they have been kind of going along on an ad hoc basis, and as these doctors get scheduled, trying to front-load the plaintiffs on the beginning of that trip. For example, if you've got the doctor on a Thursday, even a Friday, then try to put the plaintiff on the Wednesday and achieve Russell's goal of putting the plaintiffs first and Dennis's goal of compressing down the travel to be more cost-effective. And given the fact that Dennis's firm and some of these others who -- and I don't think that any of the other plaintiffs' firms have raised this issue, it's generally one or two plaintiffs a month at best, maybe we can just kind of continue on and say as a general rule, as you suggested, that we're going to front-load the plaintiffs at the beginning of the month, and then the folks that have one or two plaintiffs, such as the Gornick firm, can continue to work with Russell and see if they can't work out something that meets everyone's needs. SPECIAL MASTER BROWN: All right. Thank you, Buffy. That's what I would like to do, and Dennis, would like for you to try to make that happen, and if

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But do try to work together to set dates if you can so that if you're flying out, you can do it in one trip. That's always a good thing to do. I don't think we have to make any more precise arguments or ruling on that beyond today except to say that for now, that is what we are trying to do, is do plaintiffs and then do physicians and sales reps. And for the most part, that seems to be working, and we're going to keep trying to do that unless circumstances that you see, or somebody sees, change or tell us from experience that that's not working and we need to alter it. MS. MARTINES: Orran, this is Buffy Martines. Orran, I think I was just glancing at the November plaintiffs to see if I'm right. The majority of the plaintiffs in the month of November is a good example. There are only two plaintiffs that don't belong to the Bailey firm for the month of November. I guess that's just our good fortune. But Dennis is correct. We have chosen to do this method of bringing the plaintiffs to Houston because it is based on the volume that we do it, just works better for everyone. And we have been consistently front-loading the plaintiffs at the beginning of the month, and I
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at any time you feel that there's a problem or you're not getting cooperation, or you'd like to combine people on the trip and you're not getting that done, and you want to raise it, then all you have to do is let me know and we'll get together again and we'll deal with it and I think resolve it. Just send me an e-mail or a letter or fax. MR. CANTY: I certainly hope that won't be necessary. So far, you know, we've been able to -- we've been able to coordinate trips where necessary, and be respectful of each other and each other's time so it's been good with respect to scheduling. Do we have a dispute as to Naramore, Russell? Do we need to take this up next? This is probably a good segue way. MR. STEWART: Yes. Naramore is the issue. This case is one that we have -- this is one on the list of Dennis's October 4th letter. Allison Henderson is a PSS, and this came up because we offered a date for Allison Henderson and we had scheduled the plaintiff before that, but then Mr. Canty then changed his schedule for the plaintiffs until after the PSS deposition. So. MR. CANTY: That's incorrect.

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MR. STEWART: No? Okay. MR. CANTY: At this point, you chose a date for the sales representative. Then you later fail to make her available on that date and, as a result, the deposition of the sales rep was moved to the week following the Thanksgiving holiday. As a result, the plaintiff's deposition for convenience of the parties, also needed to be moved, and I would recommend that since we have the time that we try and move the physician as well. That issue aside, at this point, you have the sales rep schedule for mid-week. I have -- I'm able to produce the plaintiff on the 30th, which is the Friday, and for some reason, you need to make sure that the plaintiff goes first. And I would like you to explain to us why that has to be, and why we can't just schedule the depositions conveniently for all. MR. STEWART: This is Russell Stewart again. Let me address something that Mr. Canty said. One example of a case in which, one of his cases that is not going forward is the Tracy Flye case in Indiana. And that was one where a PSS schedule but luckily after the plaintiff and that case didn't go forward. And when Tracy Flye was cancelled and that
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it Naramore? MR. CANTY: Correct. SPECIAL MASTER BROWN: Is that plaintiff's schedule? MR. CANTY: I can make the plaintiff available on November 30. He can make the sales representative available on Wednesday the 28th? Correct? MR. STEWART: We've offered the 28th and they've offered the plaintiff for two days after. SPECIAL MASTER BROWN: And are the physicians in that case scheduled, Russell? MR. STEWART: No. I think it's one of the cases they were, but I think we've agreed if we're going to move these back, we didn't have some of the records and so we also agreed to move both of these and see if we couldn't schedule them together to make one trip. SPECIAL MASTER BROWN: All right. Is the PSS and the plaintiff, are they located in the same city? MR. CANTY: Correct. Same geographic area. SPECIAL MASTER BROWN: And so, you're trying to do them in one trip, and where is it? MR. CANTY: Somewhere in the vicinity of Atlanta. SPECIAL MASTER BROWN: All right. And PSS on

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case was not to proceed, then the PSS didn't proceed. So that -- and it has happened in one of the Gornick cases. But that's our concern because it's not only just the time of deposing this PSS, but also preparing and meeting with this PSS and taking them out of their work schedule in order to talk to them, and then also the day of the deposition is time they're away from their work and they have limited -- limiting schedules. MR. CANTY: I'm sorry, Russell, before we go any farther with that, I just would like to remind the court that, you know, you should take a look at my initial letter to Russell in August. The disclosures for Tracy Flye did not even identify a sales rep. It is impossible that a sales rep was designated and set for deposition. Absolutely impossible. MR. STEWART: I would agree with you on that one. But Tracy Flye is one of your cases that didn't proceed, right? MR. CANTY: And I informed you of that, so there was absolutely -- before you provided them adequate disclosure. SPECIAL MASTER BROWN: Let's do this. Which case is currently presenting the problem? You called
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the 28th, plaintiff on the 30th. And Dennis, is there a way that the plaintiff could be done before the 28th? MR. CANTY: Before the 28th? It isn't possible. With her travel schedule and ours it is not possible. Basically what -- we were pushing against the holiday weekend, right there is the idea. SPECIAL MASTER BROWN: If the plaintiff is not done until the 30th, that's a Friday. MR. STEWART: This is Russell Stewart again. We're