B.P. v. Abbott Laboratories, Inc.

Filing 168

MEMORANDUM AND OMNIBUS ORDER following the June 30, 2017 telephonic status conference; ORDER DENYING 165 Motion to Amend/Correct; GRANTING 166 Motion Extend Expert Deadlines. The following deadlines shall apply in Pursley case: (1) Deadli ne for Plaintiff to Disclose Experts, Reports and Deposition Dates September 5, 2017; (2) Deadline by which Depositions of Plaintiffs Experts will be Completed October 13, 2017; (3) Deadline for Abbott to Disclose Experts, Reports and Deposition Dates October 20, 2017; (4) Deadline by which Depositions of Abbotts Experts will be Completed December 1, 2017. Signed by Judge Nancy J. Rosenstengel on 7/21/2017. (Attachments: # 1 Exhibit 1) (jmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
IN RE DEPAKOTE:
RHEALYN ALEXANDER, et al.,
Plaintiffs,
vs.
ABBOTT LABORATORIES, INC., and
ABBVIE, INC.,
Defendants.

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Case No. 12-CV-52-NJR-SCW
LEAD CONSOLIDATED CASE

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
The Court held a telephonic status conference on June 30, 2017. This Order
memorializes the Court’s findings and rulings at that hearing and sets additional
deadlines.
A. Parents as Plaintiffs
A large number of complaints have the minor child’s parent listed as: “next
friend” and “individually.” Drafting the complaint in this way suggests that parents are
making their own claim for damages and not merely serving as the representative of the
claim of the minor. This uncertainty created a small dispute during voir dire in the Raquel
case. Accordingly, the parties are directed to meet and confer regarding whether the
parents are acting simply in a representative capacity or whether they are seeking their
own claim for individual damages in addition to their role as the representative of the
minor child. The parties shall file a joint brief clarifying their positions on this subject on
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or before August 22, 2017.
B. Dr. Cunniff’s Scheduling Issues
Plaintiffs provided an email submission to the Court in advance of the June 30
hearing suggesting that Plaintiffs’ causation expert in the Pyszkowski cases, Dr. Cunniff,
was “unavailable for the September 25, 2017 trial.” No further explanation was provided
concerning his alleged unavailability. The Court inquired into Dr. Cunniff’s scheduling
issues at the status conference, but no further clarification could be provided by the lead
attorney on the case.
The Court selected the trial dates and Plaintiffs for the next two Depakote trials
based upon the parties’ representation regarding witness availability. The Court has
already lost six full weeks of trial to expert issues in this mass action. Accordingly, the
cases previously selected for the September 25, 2017 and November 28, 2017 trial dates
will not be continued or vacated based on scheduling conflicts. If needed, a video trial
deposition may be taken to play at trial. 1
C. Dr. Olaf Bodamer
Plaintiffs indicated that their causation expert in Sifuentes and Dotegowski, Dr. Olaf
Bodamer, voluntary accepted additional work responsibilities and no longer wishes to
participate as an expert in the mass action. (Doc. 1011, pp. 8-9). Plaintiffs filed a motion
to substitute only in the Dotegowski case, as Dr. Bodamer indicated he was willing to
continue as an expert in the Sifuentes case. (Case No. 16-CV-432, Doc. 16).
Dr. Bodamer claims that he has “taken on another major role at Boston Children’s

In the event that the parties wish to conduct a video deposition of an expert witness, the Special Master
can be utilized to referee the deposition.

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Hospital….[and this] new role leave[s] me with very little time to pursue outside
projects or litigation related activities.” (Case No. 16-CV-432, Doc. 16-1). Plaintiffs fail to
adequately support their motion to substitute for two primary reasons.
First, the vast majority of the expert’s work, e.g., reviewing records, formulating
opinions, drafting reports, drafting rebuttal reports, and sitting for discovery
depositions, has already occurred in Sifuentes and Dotegowski. Second, Dr. Bodamer fails
to provide any further explanation for how his new role impacts his ability to participate
in this trial beyond: “The new role leaves me with very little time….” Expert discovery
cannot be reopened this late in the litigation predicated on such a vague and
undescriptive statement. Dr. Bodamer’s assertion that he is “unable to… prepare and
present deposition and/or present [himself] for trial” further undercuts his Declaration,
because a trial date in Dotegowski has not been set. 2
This Court has repeatedly demonstrated a willingness to work with the parties to
find trial dates that work with the schedules of everyone involved, including expert
witnesses. If taken to its logical conclusion, Dr. Bodamer’s Declaration would imply that
despite this flexibility, he is so busy that there will never be a time when he can come and
present testimony in this trial. Such a sweeping unsupported assertion cannot meet the
standards of Rule 16 or Rule 37, warranting reopening of expert discovery. Therefore,
Plaintiffs’ motion for leave to designate a substitute expert is DENIED. (Case No.
16-CV-432, Doc. 16). The Court will make every reasonable effort to work around Dr.

In the event that Plaintiffs choose to take a video trial deposition, Defendants have additionally offered
to travel to Dr. Bodamer’s office at a date and time that is convenient for him. In light of this offer of
flexibility and accommodation, it is difficult to understand how Dr. Bodamer can declare that he will never
have time for a deposition.

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Bodamer’s unspecified “major role” to facilitate his participation in the Dotegowski trial.
D. Dr. Cheryl Blume
Plaintiffs indicated in their pre-status conference submission that Dr. Blume has a
conflict for the November trial slot. At the June 30 conference Plaintiffs provided further
clarification indicating that Dr. Blume would be available for the November trial.
(Doc. 1011). The Court will not postpone or continue the September or November trials
absent unforeseeable extraordinary events.
E. Motion to Amend and Sever
Plaintiffs filed a motion to amend and sever the claims of the Erpelding Plaintiffs
from the rest of the overarching complaint and then file an amended complaint specific
to their cases. (Case No. 13-CV-134, Doc. 178). Plaintiffs A.E. and G.E. are twins, while
C.E. is another Erpelding sibling. Abbott does not oppose the motion to amend but does
not want all three claims consolidated for trial. (Case No. 13-CV-134, Doc. 179).
Plaintiffs’ motion to sever the Erpelding Plaintiffs is GRANTED. (Case No. 13-CV-134,
Doc. 178). For docket control purposes, the Clerk of Court is directed to open a new case
number and assign Amanda Erpelding, A.E., G.E., and C.E. to the new case number. All
future pleadings relating to these Plaintiffs shall be filed in the new case number. The
Court does not intend to try the claims of C.E. with the claims of A.E. and G.E.
F. Motion to Extend Expert Deadlines
The parties field a joint motion to extend the expert discovery deadlines in the
Pursley case (former known as “Fragnoli”). (Case No. 13-CV-324, Doc. 166). The
continuance request is GRANTED; the Court will set new deadlines in accordance with
the proposed schedule provided to the Court in advance of the status conference.
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G. Motions to Dismiss
Plaintiffs filed two motions to dismiss in Case Nos. 13-CV-134 and 13-CV-890.
(Case No. 13-CV-134, Doc. 172; 13-CV-890, Doc. 33). Plaintiffs seek a dismissal without
prejudice on behalf of Jaclyn Langner, individually and on behalf of her minor child L.L.,
and Jessica Yoder, individually and on behalf of her minor child B.W. Abbott seeks a
dismissal with prejudice of these claims. At the recent status conference Plaintiffs were
informed of the Court’s intention to dismiss the cases without prejudice subject to the
same conditions previously imposed in other similar cases. See e.g., (Case No.
14-CV-1062, Doc. 17). Plaintiffs had no objection to this proposal. Accordingly, the
motion is GRANTED, and the claims of Jaclyn Langner, individually and on behalf of
her minor child L.L., and Jessica Yoder, individually and on behalf of her minor child
B.W. are DISMISSED without prejudice subject to the following two conditions:
(1) If Plaintiffs seek to reinitiate this legal action in connection with or
involving in utero exposure to Depakote, the action must be filed in the
United States District Court for the Southern District of Illinois; and (2) in
the refiled action, the parties will make use of the discovery undertaken
thus far to the greatest extent reasonably possible and shall strive not to
duplicate in any subsequent action any discovery already undertaken as
part of the Depakote proceedings consolidated under Case No. 12-CV-52.
The Clerk of Court is DIRECTED to terminate these plaintiffs from their associated cases
and from the lead Depakote case (Case No. 12-CV-52).
H. Motion for Reconsideration
Plaintiffs seek reconsideration of the Court’s April 12, 2017 Order concerning the
Indiana statute of repose. (Doc. 945; Case No. 12-CV-54, Doc. 114). Specifically, Plaintiffs
assert that they “recently” discovered that Plaintiffs Denise Estes and minor L.E. have
never been residents of the state of Indiana and that all of Ms. Estes’s prenatal care,
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Depakote use, and prescribing conversations occurred in Illinois. Abbott does not
oppose the motion so long as they have leave to refile a motion for summary judgment
after the conclusion of discovery in this case.
The Court directed the lead trial counsel for the Estes case to appear in person at
the telephonic status conference to ascertain additional details as to how this magnitude
of error occurred without detection. At the hearing counsel for Ms. Estes provided the
following explanation:
Your Honor, it happened, in part, because it was based on the
analysis that we did in 2016, the state law choice of law analysis. And when
we were putting together the charts on hundreds of clients and looking
through the records we had. At that time, Ms. Estes’s case was coded as an
Indiana case because the records that we had for the mom are almost all
from her OB and the birth records we have, and she gave birth to the child
and all of her children, I believe, in Indiana. She lived in Illinois at that time
and somehow that did not get caught, and so she was coded as an Indiana
plaintiff at that time.
And then we fast-forward into this February, when Abbott files its
motion for summary judgment. We did go back and look at our records
again, and that’s how we found the Page case, which they moved for
summary judgment on, and found out that that one actually had ties in
Maryland, and Abbott withdrew their motion on that case in the reply.
But, again, we did not catch the Estes facts, that the mom lived in Illinois
throughout her pregnancy with the child.
And, you know, these are based on records that we had and records
that we had, you know, produced to Abbott a couple of years prior. And
both sides missed it. I’m not excusing us and not blaming them. But, you
know, the records that we had, again, showed that the child was born in
Indiana, and for some reason that is how the case got coded.
When your Honor’s order came out on the Indiana repose motion,
we went back again trying to find—to make sure we had all the facts. And
that’s when we saw that the mom lived in Illinois throughout the
pregnancy. We went back to Abbott on that. And when we filed the joint
statement on your Honor’s ability to enter an order, we noted that we
agreed procedurally, and it was the right thing to do, but that we intended
to move for reconsideration. We got that information to Abbott late. And
so they considered it and have come on the motion for reconsideration that
they’re unopposed to that motion.

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So I don’t have the exact specifics, other than it was originally coded
wrongly in 2016 as an Indiana case; and that, you know, despite looking
through the records multiple times, we finally found it when we did and
brought it to Abbott’s and your Honor’s attention as fast as we could, and
seek reconsideration and seek for the order not to apply. You know, we did
find the facts and bring them up before an order dismissing the case or a
judgment against the client and would ask that the ruling be reconsidered.
Doc. 1011, pp. 20-22. Counsel’s explanation reflects a systemic lack of communication
between counsel and the client, an extremely thin pre-filing investigation, and/or some
other sloppiness that continues to permeate these cases. 3 Nevertheless, the Court
GRANTS the motion to reconsider (Doc. 945; Case No. 12-CV-54, Doc. 114) and
DENIES the motion for summary judgment (Case No. 12-CV-54, Doc. 96) with leave to
refile, as to Plaintiffs Denise Estes and minor L.E. only.
I. Motions to Amend
Plaintiffs filed various motions to amend in the lead consolidated case, as well as
the applicable component cases. (Docs. 976-978); (Case No. 12-CV-53, Docs. 123; 124);
(Case No. 12-CV-57, Doc. 147); (Case No. 12-CV-163, Doc. 106); (Case No. 12-CV-694,
Doc. 77); (Case No. 13-CV-324, Docs. 165; 166); (Case No. 13-CV-326, Doc. 228); (Case No.
13-CV-890, Doc. 34); (Case No. 15-CV-702, Doc. 298); (Case 16-CV-432, Doc. 15). The
three motions filed in the lead consolidated cases are identical to those motions filed in
the component case numbers. Compare (Doc. 977) with (Case No. 12-CV-163, Doc. 106).
Plaintiffs seek to amend the complaints in a variety of cases to more closely

This Court has already spent a considerable amount of time cleaning up major substantive errors
committed by certain Plaintiffs, or more specifically their counsel, in this mass action, and yet they persist.
See e.g., Doc. 709 (noting that a small number of counsels’ errors were monopolizing a disproportionate
amount of the Court’s time). While the Court recognizes and sincerely appreciates the exceptional level of
civility and professionalism demonstrated by the vast majority of counsel in this mass action, counsel who
continue to absorb resources and add further delay to the mass action will quickly find the limits of the
Court’s patience.

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conform to the amended complaint in the Kaleta trial. Defendants oppose the motion
because (a) it would be a violation of due process to grant a blanket approval;
(b) authorizing a blanket amendment will preclude Abbott from effectively arguing
cases where they have grounds to challenge the motion; and (c) not all states allow
punitive damages and it would be futile to plead them into a new complaint.
It appears that part of the dispute stems from an effort by Plaintiffs to streamline
the motions so the Court could address this issue with minimum effort, coupled with the
structure of the mass action. After discussing the issue with the parties, there appears to
be some agreement concerning the motions to amend in certain cases. Accordingly, the
following motions are DENIED with leave to refile: (Docs. 976-978); (Case No. 12-CV-53,
Docs. 123; 124); (Case No. 12-CV-57, Doc. 147); (Case No. 12-CV-163, Doc. 106); (Case No.
12-CV-694, Doc. 77); (Case No. 13-CV-324, Docs. 165; 166); (Case No. 13-CV-326, Doc.
228); (Case No. 13-CV-890, Doc. 34); (Case No. 15-CV-702, Doc. 298); (Case 16-CV-432,
Doc. 15).
When the mass action was originally removed to this Court, many were batched
together in large groups and given a single case number. This original decision created a
scenario where 600 individual claims were contained in 127 case numbers. The
cumbersome nature of the current structure has become painfully apparent over the past
three years of managing the mass action. To simplify the current system, the Court
intends to break out claims selected for trial tracks, into unique case numbers.
Accordingly, the Clerk of Court is DIRECTED to open a new case number for each of
the Plaintiffs listed in Exhibit 1. All future filings for these cases shall be in the newly

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assigned case number.
Additionally, before refiling any motions to amend, the parties are DIRECTED to
meet and confer in an effort to resolve as many uncontested issues as possible
concerning these motions. For cases not on a trial track, motions to amend will be
handled in the Court’s regular practice (i.e., by Magistrate Judge Williams). For disputed
motions to amend in the trial track cases, the parties shall file their motions only after the
Clerk of Court has opened and assigned the new case numbers.
J. September and November Trials
At the June 30 conference the Court advised the parties of the ongoing effort to
secure additional District Judges to try the alternate Depakote cases for the September
and November trial slots. Chief Judge Reagan has agreed to try a Depakote case in the
September 25, 2017 trial slot. Accordingly, the Court intends to assign both Pyszkowski
cases for trial with Chief Judge Reagan. 4 Likewise, Judge Yandle is available to try a
Depakote case in the November 28, 2017 trial slot. The Court intends to assign the
Bartolini case for trial with Judge Yandle. A written Order assigning the cases will soon
follow with additional information.
K. 2018 Trial Slots
After reviewing the parties’ submissions concerning their availability in 2018, the
Court has selected the next trial slots for the first-half of following year. The following
dates have been selected for the next Depakote trials:

The Chief Judge has also indicated that he intends to try both Pyszkowski cases back-to-back, however, he
has not yet reached a final decision on his September trial calendar.
4

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1. January 16 - 29, 2018
2. February 5 - 16, 2018
3. February 26 – March 9, 2018
4. March 20 – April 2, 2018
5. April 9 – April 20, 2018
6. May 29 – June 19, 2018 (Joint Trial)
7. June 25 – July 18, 2018 (Joint Trial)
The Court is confident that the standard Depakote case can be resolved inside of
ten court days. Additionally, the first five trials will be standard single claim cases,
however, for the May and June trials, the Court will begin implementing joint trials. The
Court is sympathetic to conflicts and vacation planning but given the volume of cases on
the docket and the failed settlement efforts, the Court sees no other alternative to trying
as many cases as possible.
The Court welcomes the parties’ input into selecting the primary and alternate
cases for these trial slots at the telephonic status conference next week. Unless an
extraordinary circumstance arises, the Court intends to pull from the group of
approximately twenty-five cases previously slated for full discovery. The Court
recognizes that for any cases selected for the January and February trial slots, discovery
will need to be expedited this fall to allow sufficient time to complete the final phase of
pretrial litigation.
L. Selecting Additional Cases for Trial Tracks
In the coming months the Court will be selecting the next batch of cases to be
worked up for full discovery. Given the probability that other judges in the District will
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continue to try Depakote cases (along with the undersigned), the Court intends to select
an additional twenty-five to fifty cases to be worked up for trial. While the Court has an
internal process for screening and selecting cases, if the parties desire to provide
additional input into the selection process, briefs may be filed on or before September 1,
2017.
IT IS SO ORDERED.
DATED: July 21, 2017
__________________________
NANCY J. ROSENSTENGEL
United States District Judge

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