In Re: Testosterone Replacement Therapy Products Liability Litigation

Filing 2154

CASE MANAGEMENT ORDER NO. 68 (Ruling on AbbVie's motion for sanctions in Rowley v. AbbVie, Inc.), signed by the Honorable Matthew F. Kennelly on 9/24/2017. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IN RE: TESTOSTERONE
REPLACEMENT THERAPY
PRODUCTS LIABILITY LITIGATION
----------------------------------------------------THIS DOCUMENT CONCERNS:
Robert Rowley v. AbbVie Inc.,
Case No. 15-cv-2760

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MDL No. 2545
Case No. 14-cv-1748

CASE MANAGEMENT ORDER NO. 68
(Ruling on AbbVie's motion for
sanctions in Rowley v. AbbVie, Inc.)
MATTHEW F. KENNELLY, District Judge:
Robert Rowley's lawsuit against AbbVie Inc. is one of the "bellwether" cases
selected for trial in this MDL proceeding. He alleges that in 2013, he suffered a deep
vein thrombosis (DVT)—a blood clot—caused by AbbVie's drug AndroGel. Rowley
submitted a plaintiff's fact sheet (PFS) in May 2015 in which, among other things, he
disclosed Dr. Douglas Hyldahl as the only healthcare provider who had treated him for
anti-coagulant therapy.
In December 2015, Rowley's case was selected as one of the pool of cases from
which cases would be selected for bellwether trials. Rowley's deposition was taken on
March 9, 2016. At that deposition, he disclosed that his primary care provider was now
Dr. Daniel Sharp (Dr. Hyldahl had retired from practice). On July 25, 2016, AbbVie
proposed selection of Rowley's case to be tried. The Court selected Rowley's case
along with others in early August 2016.
On May 10, 2016—in other words, after Rowley's deposition was taken but

before the parties proposed which specific cases should be tried—Rowley was treated
by Dr. Sharp and at a hospital for a second DVT. However, the May 2016 DVT was not
disclosed to AbbVie until October 28, 2016, when Rowley submitted a supplement to his
PFS. That same date was the deadline for plaintiffs in the AbbVie bellwether trial cases
to make case-specific Rule 26(a)(2) disclosures. An expert retained by Rowley's
counsel rendered an opinion that AndroGel was a substantial factor in causing both of
Rowley's DVTs, including the May 2016 DVT. AbbVie received that expert's report on
November 1, 2016. Later in November, records from a hospital and from Dr. Sharp
regarding the May 2016 DVT were produced to AbbVie.
In late November 2016, AbbVie filed a motion for sanctions based on the belated
disclosure of Rowley's May 2016. AbbVie pointed out that Rowley's expert obviously
had the information about the second DVT long enough before October 28, 2016 to
include it in his opinion and that this meant that Rowley's counsel had the information
even earlier but had not disclosed it until October 28.
AbbVie argued in its motion that "[t]his lack of diligence by Plaintiff's counsel has
hampered AbbVie's defense and could delay this carefully planned bellwether process.
Plaintiff's actions have put the success of the MDL at risk," thus warranting imposition of
sanctions. AbbVie's Mot. for Sanctions at 2. It sought "an order sanctioning Plaintiffs
and excluding evidence of Mr. Rowley's alleged May 2016 clot." Id. at 7.
The record reflects that Rowley's counsel learned of the second DVT on October
24, 2016, got the records within a day or two, got them to her expert, and prepared an
amended PFS for Rowley's signature. In other words, once Rowley's counsel learned
of the second DVT, she acted very quickly. But this does not explain the five-month

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delay between the occurrence of the DVT and counsel's learning of it. This delay
suggests that there was no contact between counsel and Rowley during the seven and
one-half months after his March 9, 2016 deposition or, at least, no discussion about
events relevant to his lawsuit.
In view of the fact that Rowley's case had been chosen from several thousand
cases as one of seven or eight bellwether trial cases, this was not reasonably diligent
conduct on counsel's part. Given the importance of the bellwether trial process, it was
and is incumbent upon counsel on both sides to maintain regular contact with their
clients in order to satisfy the party's and counsel's obligation to supplement discovery
responses "in a timely manner," Fed. R. Civ. P. 26(e)(1)(A), and their corresponding
duty under Case Management Order 9, which establishes the requirement for plaintiff's
fact sheets and expressly imposes "a continuing duty to supplement the information
provided in the PFS pursuant to Fed. R. Civ. P. 26(e)." 2d Am. Case Mgmt. Order 9, ¶
II.C.1. The Court acknowledges that it is not particularly unusual or surprising that
plaintiffs in cases of this type may have post-lawsuit health-related events that may
impact the case in one way or another. It is also not particularly unusual or surprising
that the plaintiff himself might not understand the need for prompt disclosure. But the
fact that these matters are neither unusual nor surprising is exactly why counsel for the
plaintiff must be reasonably diligent in maintaining contact with his or her client and
inquiring about developments in the client's health or medical care that might impact the
case. In this regard, the Court emphasizes that Rowley's case was not merely one of
the 7,000-plus cases that have been part of this MDL proceeding; rather, it was (at the
time of Rowley's second DVT) one of just thirty-two cases specifically selected for

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possible bellwether trials. At a minimum, this information should have been obtained
and disclosed very promptly after the Court selected the case as a bellwether trial case
on August 4, 2016. But counsel did not obtain and disclose the information until nearly
three months after that.
That said, AbbVie's contention that the delay in disclosure of Rowley's second
DVT could "delay [the] carefully planned bellwether process" and "put the success of
the MDL at risk" was and is exaggerated, to put it mildly. As of the date AbbVie filed its
motion, the first AbbVie-only bellwether trial was still over six months in the future: the
first trial was set to begin on June 5, 2017 and the last in January 2018 (the schedule
has since been elongated somewhat). And the specific date for the Rowley trial had not
been set. Indeed, the Court had not yet selected the sequence of the cases—that did
not happen, and was not even scheduled to happen, until March 2017. In short,
contrary to AbbVie's contention in its motion, there was not even the ghost of a
possibility that the bellwether trial process would be delayed or disrupted, and there was
even less of a chance of disrupting the overall MDL. Indeed, at the Court's direction
after AbbVie filed its motion, AbbVie was able to obtain the relevant records and take
Dr. Sharp's deposition, and AbbVie's expert was able to incorporate issues relating to
the second DVT into his opinion. All of that was easily obtained and, in all likelihood,
could have been easily obtained by conferring with plaintiffs' counsel even without filing
a motion.
When a party seeks sanctions for failure to make or timely supplement discovery,
it invokes Federal Rule of Civil Procedure 37(c)(1), which calls for exclusion of the
undisclosed or belatedly disclosed information "unless the failure was substantially

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justified or is harmless." In this case, the delayed disclosure was not substantially
justified, but it was almost entirely harmless. AbbVie obtained the relevant records
reasonably promptly; it was able to take the deposition of Dr. Sharp without undue
delay; and it was able to incorporate the second DVT into its own expert's report. The
only discovery that had to be redone to any extent was Rowley's deposition. AbbVie is
entitled to be compensated for the retaking of the deposition, see Fed. R. Civ. P.
37(c)(1)(A) (authorizing monetary sanctions in lieu of preclusion), but that is it. And
AbbVie is not entitled to be compensated for preparing and filing the motion for
sanctions. The relief sought in the motion and the surrounding discussion before the
Court—in which AbbVie argued that this and an incident in another case supported
imposing a Lone Pine-type requirement on an MDL-wide basis—was far
disproportionate to any actual or potential prejudice.
The Court therefore grants AbbVie's motion for sanctions, but only in part. The
Court directs plaintiff's counsel to pay AbbVie $1,500 within 14 days after entry of this
order. This represents, in the Court's view, a reasonable estimate of the attorney time
reasonably needed to prepare for and take a second deposition of Mr. Rowley. (The
Court could ask for further briefing regarding attorney's fees, but the time and effort that
would be required to do that is unwarranted under the circumstances.)
Date: September 24, 2017
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MATTHEW F. KENNELLY
United States District Judge

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