Alexander v. Abbott Laboratories Inc
ORDER Setting Status Conference: A status conference will be conducted in Courtroom 3 at the East St. Louis courthouse on November 17, 2016, at 9:30 a.m. before the Honorable Nancy J. Rosenstengel. The list assessing the speed in which each claim may be rendered ready for trial, is due on or before November 7, 2016. If the parties believe additional matters should be addressed at the conference, beyond those set forth in the Order, they shall alert the Court in writing (via the proposed documents folder at NJRpd@ilsd.uscourts.gov with a copy to opposing counsel) no later than 5 p.m. on November 7, 2016. Signed by Judge Nancy J. Rosenstengel on 10/12/2016. (jmw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
IN RE DEPAKOTE:
RHEALYN ALEXANDER, et al.,
ABBOTT LABORATORIES, INC., and
Case No. 12-CV-52-NJR-SCW
LEAD CONSOLIDATED CASE
This Document Relates to: ALL CASES.
ORDER SETTING STATUS CONFERENCE
ROSENSTENGEL, District Judge:
A Status Conference will be conducted in Courtroom 3 at the East St. Louis
courthouse on November 17, 2016, at 9:30 a.m. Defense counsel and Lead Counsel for
Plaintiffs are required to attend, however, all counsel are invited to attend if they so
desire. The primary purpose of the Status Conference will be to address the joint trial
model that will be employed in the next phase of the Depakote litigation. The parties
also should be prepared to discuss the following questions:
1) What are the common issues of fact or law that unify the cases, bearing in
mind that the initial trials employed in this phase of the ligation must each
cover the maximum number of common issues and claims as possible. The
parties should be prepared to provide specific examples of issues and
claims that may be tried together. The Court will not entertain suggestions
that common triable issues, unifying a large number of Plaintiffs, cannot be
found. See (Docs. 280; 282) (where the parties suggest that the only way to
proceed is through combining issues and joint trials); see also In re Abbott
Labs., Inc., 698 F.3d 568, 573 (7th Cir. 2012) (“[w]e agree with Abbott that it
is difficult to see how a trial court could consolidate the cases as requested
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by plaintiffs and not hold a joint trial or an exemplar trial with the legal
issues applied to the remaining cases.”) 1
2) What issues or cases potentially can be resolved through motion practice?
3) Are there Plaintiffs who are non-responsive to counsel? See (Doc. 480-3.)
4) What event, e.g., conception versus the last doctor visit before the
conception, should be utilized to determine the relevant label in a
Plaintiff’s case? The Court has noticed inconsistency in some of the
“relevant label” sections within the Status Reports. Compare (Doc. 569) with
5) Of the “universe” of possible labels, which changes are immaterial to the
adequacy of the warnings? For the 1997-2006 label era, what is the largest
window of time between substantive changes?
6) From a discovery standpoint, which cases are “ready for trial?” Of the
remaining cases, which will require the least amount of time and resources
to render the case ready for trial? Of those cases, how quickly can each be
made triable? Which cases pose the largest resource and time burdens to
render the cases ready for trial? Of those cases, how quickly can each be
made triable? The parties should generate a list of the 100 easiest and the
100 most difficult cases to prepare for trial. The parties shall file the list
with the Court on or before November 7, 2016, at 5 p.m. While the Court
recognizes the inherent uncertainty in such a task, the parties should
nevertheless complete a comprehensive analysis of the time and resources
needed to bring each case to trial. As the bellwether approach has proven
ineffective, the parties may not factor in their respective “likelihood of
success on the merits” into the analysis.
7) Do the differences in drug formulas ingested by a Plaintiff, e.g. Depakote
Sprinkles, Depakote ER, Depakote, Depakene, and Depacon, impact the
question of liability or damages?
8) What are the common issues of fact or law which unite the non-fetal injury
claims with the average Depakote litigation case? See (Doc. 476, at p. 1 n.1).
Why should they not be severed from the consolidated mass action?
The parties are directed to review In re Bendectin Litig., 857 F.2d 290 (6th Cir. 1988). The Court is strongly
inclined to employ a similar liability bifurcation process, where appropriate. Utilizing a special jury
verdict form, the Court intends to ask carefully tailored yes/no questions that may then be employed for
collateral estoppel and mutual issue preclusion purposes.
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9) Do Defendants dispute manufacturing the “generic” Depakote Plaintiffs
allegedly took in the six cases referenced by Defendants? (Doc. 476, at p. 5).
If so, what evidence links the generic manufacturing to Defendants? What
liability, if any, do Defendants face if they are not the manufacturer of the
specific generics ingested by Plaintiffs?
Finally, if counsel believes there are additional matters that should be addressed at the
status conference, they shall alert the Court in writing (via the proposed documents
folder at NJRpd@ilsd.uscourts.gov—with a copy to opposing counsel) no later than
5 p.m. on November 7, 2016.
IT IS SO ORDERED.
DATED: October 12, 2016
NANCY J. ROSENSTENGEL
United States District Judge
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