Bartolini et al v. Abbott Laboratories, Inc

Filing 264

FINAL PRETRIAL ORDER. Signed by Judge Nancy J. Rosenstengel on 5/9/2017. (jmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
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E.G., a minor, by CHRISTINA RAQUEL,
individually as parent and next friend of
E.G.,
Plaintiffs,
v.
ABBOTT LABORATORIES INC.,
Defendant.

Case No. 15-CV-702-NJR-SCW
JURY TRIAL DEMANDED

FINAL PRETRIAL ORDER
This matter came before the Court for a Final Pretrial Conference held pursuant to Rule
16 of the Federal Rules of Civil Procedure:
I.

COUNSEL OF RECORD
Plaintiffs’ Counsel: Lead trial counsel for Plaintiffs are John E. Williams, Jr.,
[e-mail] and John T. Boundas,
[e-mail]: Williams Kherkher Hart Boundas LLP, 8441 Gulf
Freeway, Suite 600, Houston, Texas 77017-5051; Telephone: [phone].
Defendant’s Counsel: Lead trial counsel for Defendant are Joel H. Smith,
[e-mail], BOWMAN AND BROOKE LLP, 1441 Main
Street, Suite 1200, Columbia, SC 29201; Telephone: [phone] and Dan H.
Ball, [e-mail], Bryan Cave LLP, 211 North Broadway, Suite 3600, St.
Louis, Missouri 63102; Telephone: [phone].

II.

NATURE OF THE CASE

This is a personal injury lawsuit involving the prescription medication Depakote,
manufactured, marketed and sold by Defendant Abbott Laboratories Inc. (“Abbott”). Depakote
ER is prescribed for persons with bipolar disorder.
This action has been brought on behalf of a minor child, E.G. Plaintiffs claim that E.G.’s
mother, Christina Raquel, was prescribed and took Depakote ER during her pregnancy with
E.G. Plaintiffs claim that E.G. was born with birth defects as a result.

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Plaintiffs claim that Abbott failed to provide an adequate warning to Christina Raquel’s
physicians regarding the risks of Depakote. Plaintiffs seek recovery of damages from Abbott for
the injuries and harm suffered by E.G. in connection with his alleged birth defects.
Abbott claims that it adequately warned Christina Raquel’s physicians about the risks of
Depakote during pregnancy. Abbott further claims that Plaintiffs have not proved that the content
of the warning caused E.G.’s injuries or that E.G.’s injuries were caused by Depakote ER.
III.

SUBJECT MATTER JURISDICTION
A. This is an action for damages related to a personal injury claim.
B. The Seventh Circuit has deemed that the basis for the Court’s subject matter
jurisdiction is 28 U.S.C. § 1446 and the Class Action Fairness Act of 2005, Pub.
L. No. 109-2, 119 Stat. 4, 28 U.S.C. §§ 1332(d) & 1453 (“CAFA”).

IV.

UNCONTROVERTED FACTS
The following facts are not disputed and are agreed to by the parties:
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“Depakote” also refers to other formulations of the product, such as Depakote
ER.

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Depakote is an antiepileptic drug manufactured, marketed and sold by Abbott
Laboratories Inc.

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Depakote was approved for the treatment of manic episodes associated with
bipolar disorder, as well as for the treatment of migraine prophylaxis and
certain types of seizures.

-

Depakote is also sometimes referred to by the chemical names “valproic
acid,” “valproate” or “VPA.”

-

Minor Plaintiff E.G. was born on February 2, 2007.

The parties propose to convey these facts to the jury through Counsel.
V.

CONTROVERTED FACTS
The following key facts are disputed by the parties:
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Whether Abbott adequately warned physicians regarding Depakote ER use.

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Whether Depakote ER was a cause of E.G.’s injuries.

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VI.

Whether Abbott’s alleged failure to warn was a proximate cause of E.G.’s
injuries.
The amount of damages, if any.

AGREED TO ISSUES OF LAW
1.

The parties agree that California tort law governs this action and provides
the remedies, if any, for E.G.’s injuries and harm.

2.

The parties agree that the Court is to decide the following legal issues:
A. The issues raised in the parties’ previously filed Daubert and in limine
motions.
B. The objections to deposition designations and exhibits raised by the
parties.

VII.

WITNESSES

Abbott respectfully suggests that the parties give 48 hours’ notice as to when witnesses
are to be called at trial. Witnesses to be called on Monday shall be disclosed by 6:00 p.m. on
Friday. (This procedure was used during the D.W.K. trial and other Depakote trials.)
Plaintiffs may present testimony from the following witnesses by deposition or live at
trial:
1.

Retained Expert Witnesses
a.
b.
c.
d.
e.
f.

2.

Cynthia Curry, M.D.
David Kessler, M.D.
Ira Lott, M.D.
Kenneth McCoin
Godfrey Oakley, Jr., M.D., M.S.P.M.
Valerie Parisi

Other Witnesses
a.
b.
c.
d.
e.
f.
g.
h.

Scott Anderson
Jeffrey Baker
Larry Carbone
James Embrescia, D.O.
Jeanne Fox
Robert Franklin, M.D.
Minor Plaintiff E.G.
Arthur Giese, M.D.
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i.
j.
k.
l.
m.
n.
o.
p.
q.
r.
s.
t.
u.
v.
w.
x.
y.
z.
aa.

Robin Hagy
Jaesu Han, M.D.
Tracey Heimberger
Michael Jarvis
Michael LaFond
James Lavery
Scott Luce
Craig McDonald, M.D.
Kevin McRaith
Sadou Meer, M.D.
Mark Mularski
Lee Muraoka
Michael Murray
Blasine Penkowski
Charles Schwamlein, M.D.
Cheri Spath
James Steck
Richard Tresley, M.D.
Marino Tuluao, M.D.

Defendant may present testimony from the following witnesses by deposition or live:
1.

Retained Expert Witnesses
a.
b.
c.

2.

David Feigal, Jr., M.D., M.P.H.
Lisa Thornton, M.D.
Christopher Ticknor, M.D.

Other Witnesses
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
l.
m.
n.

James Embrescia, D.O.
Susan Ferguson, M.S.
Robert Franklin, M.D.
Arthur Giese, M.D.
Ramiro Gonzalez
Jaesu Han, M.D.
Tracey Heimberger, M.D.
Kiery Jackson
James Lavery
Craig McDonald, M.D.
Sadou Meer, M.D.
Lee Muraoka
Christina Raquel
Marino Tulao, M.D.

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VIII. EXHIBITS
The parties will exchange exhibit lists on May 12, 2017 pursuant to the Court’s March
20, 2017 order (Dkt. No. 584). The parties agree that objections to exhibits should be handled on
a case-by-case basis.
IX.

DAMAGES

Plaintiffs claim damages for past and future medical and life care expenses; future lost
earning capacity; past and future pain, suffering and mental distress (both physical and mental);
inconvenience, loss of intellectual gratification or physical enjoyment, and any other loss of
lifestyle; physical disability; disfigurement; and all other non-economic damages. Plaintiffs
claim their damages that can be itemized are as follows:
Type of
Damages

(1) Medical
expenses
already
incurred

(2) Future
expenses for
medical and
life care

(3) Future lost
wages or
reduced
earning
capacity

(4) Other
damages

Detailed Description of Damages Claimed
Payments for medical expenses already incurred and
associated with Minor Plaintiff E.G.’s injuries
suffered as a result of his mother’s ingestion of
Depakote while pregnant with Minor Plaintiff E.G.
These payments are reflected in the billing records
produced. As of January 29, 2016, Plaintiffs have
incurred at least $330,659.39 in medical expenses.
As reflected in the expert report of Valerie
Parisi, RN, CRRN, CLCP (and as discounted by
Kenneth McCoin, Ph.D., C.F.A.), Minor
Plaintiff E.G. will incur future expenses for medical
and life care of approximately $15,631,149 when
considering home care or $14,648,205
when considering facility care.
As reflected in the expert report of Kenneth McCoin,
Ph.D., C.F.A., a high school graduate has a future
earning potential of $1,832,111.00. Plaintiffs assert
that Minor Plaintiff E.G. should recover any
reduction from this future earning potential
attributable to his injuries.
Minor Plaintiff E.G.’s past and future: pain and
suffering (both physical and mental); inconvenience,
loss of intellectual gratification or physical
enjoyment, and any other loss of lifestyle; loss of a
normal life; disability; disfigurement; increased risk
of harm; and all other non-economic damages to be
determined by the jury.

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Abbott denies all of Plaintiffs’ allegations, and, accordingly, contends that Plaintiffs
are not entitled to recover any damages from Abbott.
X.

TRIAL BRIEFS
Abbott intends to submit a trial brief in advance of the final pre-trial conference.

XI.

MOTIONS IN LIMINE

The parties have filed motions in limine that are fully briefed and before this Court.
Abbott also has Daubert motions that are fully briefed and pending before the Court.
XII.

JURY INSTRUCTIONS

The parties will submit proposed jury instructions on by 5:00 P.M. on May 12, 2017.

APPROVED AS TO FORM AND SUBSTANCE:
____/s/ John T. Boundas__________________
Attorney for Plaintiff(s)
____/s/ Dan H. Ball_______________________
Attorney for Defendant(s)

IT IS ORDERED that the Final Pretrial Order may be modified at the trial of the action or
before to prevent manifest injustice or for good cause shown. Such modification may be made
either on application of counsel for the parties or on motion of the Court.
IT IS SO ORDERED.
DATED: May 9, 2017

__________________________
NANCY J. ROSENSTENGEL
United States District Judge

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