McClurg et al v. MI Holdings, Inc. et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the parties in Butler v. Mallinckrodt LLC, No. 4:18-cv-01701-AGF; Koterba v. Mallinckrodt LLC, No. 4:18-cv-01702-AGF; Hines v. Mallinckrodt LLC, No. 4:18-cv-01703-AGF; and Walick v. Mallinckrodt LLC, N o. 4:18- cv-01704-AGF, shall meet and confer in good faith, attempt to reach agreement, and no later than 14 days from the date of this Memorandum & Order, file a notice advising the Court of their agreed or respective positions with respect to the matters set forth above. Signed by District Judge Audrey G. Fleissig on 2/11/2019. (AFC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SCOTT D. MCCLURG, et al.,
MALLINCKRODT, LLC, et al.,
MEMORANDUM AND ORDER
This matter is before the Court upon review of the parties’ notices (ECF Nos. 767
&768) advising the Court of their disagreement with respect to the proposed schedule for
the following newly consolidated cases: Butler v. Mallinckrodt LLC, No. 4:18-cv-01701AGF; Koterba v. Mallinckrodt LLC, No. 4:18-cv-01702-AGF; Hines v. Mallinckrodt
LLC, No. 4:18-cv-01703-AGF; and Walick v. Mallinckrodt LLC, No. 4:18-cv-01704AGF (collectively, the “Butler cases”). Before resolving these disputes, the Court wishes
to remind the parties of the procedural history of this case and to ask the parties the
parties to meet and confer regarding whether a schedule of the type previously imposed
continues to be efficient.
This mass tort litigation was first filed in 2012, and since then, claims by hundreds
of plaintiffs have been consolidated before the undersigned. Early on in the case, in lieu
of a Case Management Order (“CMO”) patterned after Lore v. Lone Pine Corp., No. L
33606-85, 1986 WL 637507 (N.J. Super. Ct. Law Div., Nov. 18, 1986) (“Lone Pine”),1
which Plaintiffs opposed, the Court ordered Plaintiffs to disclose to Defendants, within
60 days of filing suit, certain basic information about the nature of their claims, including
a preliminary expert report regarding Plaintiffs’ alleged exposure to radiation. ECF Nos.
231 & 286. The Court also imposed a staggered discovery and pretrial schedule, based
on the parties’ identification, early on in this litigation, of “common issues” that could be
applicable to all or a substantial number of the hundreds of Plaintiffs. These common
issues were defined in Case Management Order No. 1 (ECF No. 286), entered on April
17, 2015, and supplemented by the parties on November 4, 2015, as set forth in ECF Nos.
324 & 325.2
Accordingly, CMO Nos. 1 through 13 staggered discovery and pretrial motions
such that the first phase of fact discovery, expert designations, and Daubert and
dispositive motions was limited to common issues, and the second phase of these pretrial
proceedings was to be devoted to preparing a representative group of Plaintiffs for
individual trials. The second phase addressed full discovery, expert designations, and
Daubert and dispositive motions applicable to each representative plaintiff’s individual
In Lone Pine, the court required the plaintiffs in a mass toxic tort action to make a
prima facie showing of exposure and causation before full discovery and other
procedures were permitted. 1986 WL 635707 (N.J. Sup. Ct. Nov. 18, 1986).
The Court also clarified on May 31, 2016, that the second common issue defined
in CMO No. 1 referred to the type, amount, and level of radioactive material attributable
to Defendants at the locations where Plaintiffs were allegedly exposed. However,
Defendants could also assume the burden of going forward that the issue of whether the
level of exposure alleged by Plaintiffs was sufficient to cause their injuries was a
common issue capable of being resolved by dispositive motion at the common issues
stage. See ECF No. 391.
claims. The phases were staggered but overlapped, so, for example, all individual
discovery in the second phase was to be completed by approximately five months after
the close of common issues discovery, and, likewise, expert disclosures related to casespecific issues were due approximately five months after common issues expert
disclosures. See, e.g., ECF No. 732 (CMO No. 13, dated August 15, 2018).
Most, if not all, of the hundreds of Plaintiffs are now subject to Master Settlement
Agreements executed on September 12, 2018, and have been temporarily stayed while
those settlement negotiations are pending. On October 15, 2018, the Court entered CMO
No. 14 (ECF No. 741), with respect to Plaintiffs who were not previously parties to this
consolidated litigation, such as the Butler Plaintiffs. In light of the complexity of these
consolidated cases, particularly with respect to causation, the Court in CMO No. 14
expanded upon the early, Lone-Pine-like showing that Plaintiffs must make before
proceeding with more detailed and expansive discovery. In particular, the Court required
more complete early expert disclosures in the form of case-specific expert reports
addressing issues such as radiation dose and general and specific causation for the
injuries alleged. ECF No. 741 at 8-11.
In light of this procedural history, the Court turns back to the parties’ current
scheduling dispute in the Butler cases. Both sides propose some sort of phased or
staggered discovery and pretrial schedule, but instead of the common issues previously
defined, the parties refer to the “issues required and outlined in CMO No. 14.” The Court
assumes that the parties are referring to the issues to be addressed in the early, case3
specific expert reports required to be produced under CMO No. 14. These issues relate to
each individual plaintiff’s prima facie claim and, as such, are not the sort of common
issues previously identified as warranting phased or staggered discovery. It may well be
that, given the amount of discovery conducted previously, further discovery on common
issues is not necessary, or that, in light of the significantly smaller number of plaintiffs in
the Butler cases, a staggered common issues schedule is no longer efficient or
appropriate. The Court will ask the parties to confer on these issues before entering any
scheduling order with respect to the Butler cases.
Specifically, the parties are directed to consider:
Whether the parties wish to stagger pretrial proceedings related to common
issues, as defined above, and to the individual plaintiffs’ claims. See ECF Nos. 286, 324,
325 & 391.
If the parties wish to stagger pretrial proceedings related to common issues,
whether the parties wish to engage in further discovery related to common issues, and if
a schedule for additional discovery on common issues;
deadlines for Plaintiffs to disclose the summaries and reports required by
Rule 26(a)(2)(B) and (C), Fed. R. Civ. P., for any expert they intend to call at trial to
address common issues; the deposition of said experts; Defendants to disclose the
summaries and reports required by Rule 26(a)(2)(B) and (C), Fed. R. Civ. P., for any
expert they intend to call at trial to address common issues; and the deposition of said
a schedule for any Daubert motions related to expert witnesses identified to
testify regarding common issues;
deadlines for any motion for summary judgment related to allegedly case
dispositive common issues, and for briefing of the same; and
The Court notes that this is the stage of the common issues phase at which the
previously consolidated cases were at when the parties entered into the Master Settlement
Agreements, and further proceedings were stayed.
a schedule for the commencement and conduct of discovery and for the
filing of any remaining Daubert and summary judgment motions related to the individual
If the parties do not wish to stagger pretrial proceedings related to common
and individual issues, deadlines for the parties to complete discovery on the merits; for
the disclosure and depositions of Plaintiffs’ experts and Defendants’ experts; for the
filing of any Daubert motions; and for the filing and briefing of case dispositive motions.
IT IS HEREBY ORDERED that the parties in Butler v. Mallinckrodt LLC, No.
4:18-cv-01701-AGF; Koterba v. Mallinckrodt LLC, No. 4:18-cv-01702-AGF; Hines v.
Mallinckrodt LLC, No. 4:18-cv-01703-AGF; and Walick v. Mallinckrodt LLC, No. 4:18cv-01704-AGF, shall meet and confer in good faith, attempt to reach agreement, and no
later than 14 days from the date of this Memorandum & Order, file a notice advising the
Court of their agreed or respective positions with respect to the matters set forth above.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 11th day of February, 2019.
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