Vallejo v. Amgen, Inc. et al

Filing 115

ORDER that on or before September 12, 2016, Plaintiff's counsel shall serve complete expert disclosures for all experts expected to testify at trial on behalf of the Plaintiff, (both retained experts, (Fed. R. Civ. P. 26(a)(2)(B)), and non-retai ned experts, (Fed. R. Civ. P. 26(a)(2)(C)), on the issue of whether ingesting Enbrel can cause MDS. Plaintiff's motion to compel further depositions of Defendants' employees, (Filing No. 106 ), is denied without prejudice. Further depositi ons may later be permitted upon a showing that Plaintiff can present scientifically reliable evidence and opinions supporting the allegation that Enbrel can cause MDS. The telephonic hearing scheduled for August 18, 2016 is cancelled. Ordered by Magistrate Judge Cheryl R. Zwart. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAN VALLEJO, Individually and As
Personal Representative of Steve Vallejo;
8:14CV50
Plaintiff,
vs.

ORDER

AMGEN, INC., WYETH, INC., AND
PFIZER, INC.,
Defendants.
Plaintiff’s motion to compel is pending and fully submitted. (Filing No. 106). It
seeks leave to depose additional employees of the defendant.

Plaintiff’s lawsuit has been pending in this court for over two and a half years.
Plaintiff’s counsel waited more than two months to serve waivers of service on the
defendants. Defendants initially responded by filing Rule 12(b)(6) motions. The court
dismissed Plaintiff’s claims based on strict liability and negligent failure to warn to the
extent they alleged post-sale duties to warn, Plaintiff’s claims for relief based on breach
of express warranty and negligence (Counts III and IV), Count VII to the extent it
presented a claim based on fraud, and Plaintiff’s claims alleging violations of the
Nebraska Uniform Deceptive Trade Practices Act, Neb.Rev.Stat. § 87-301 et seq.
(“UDTPA”) and/or Nebraska Consumer Protections Act, Neb.Rev.Stat. §§ 59-1601 et
seq. (“NCPA”).

(Filing No. 26).

Plaintiff was granted leave to amend and filed an

amended complaint on October 13, 2014. (Filing No. 27).

Defendants assert there is no reliable scientific basis for a claim that ingesting
Enbrel can cause Myelodysplastic Disorder (MDS) which, according to plaintiff’s

counsel, was the cause of Steve Vallejo’s death. 1 At the outset of this case, Plaintiff’s
counsel acknowledged he had no expert testimony to support a claim that ingesting
Enbrel can cause MDS. But he did state that under Canadian law, MDS is listed on the
pharmaceutical labelling for Enbrel. Based on this undisputed representation, the court
granted latitude to Plaintiff’s counsel. The court rejected Defendants’ motion for a Lone
Pine order, but it did order phased discovery, with the first phase limited to deciding
whether ingesting Enbrel can cause MDS. See Filing No. 55. Thereafter, the parties
have engaged is repeated motion practice over the scope of discovery.

Plaintiff’s pending motion to compel requests a written case scheduling order.
Since the tenor of this case is highly confrontational, and the need for judicial
intervention is the norm, in lieu of a written scheduling order, the court has held four
lengthy conference calls with the parties—each resulting in the imposition of case
deadlines. In December, the court presided over a three-hour discovery hearing held on
the record.

Thereafter, the deposition of Dr. Isles, was started but discontinued in

California due to ongoing deposition disputes that the parties could not resolve and the
court could not decide over the phone. So the court personally presided over the six-hour
deposition of Dr. Isles yesterday, listening intently to complex testimony about the
pharmacological industry and its practices and the MDS disease process, and fielding a
near-constant battery of objections, arguments, and re-arguments over the court’s past
and present rulings.

Plaintiff’s counsel has now received written discovery (albeit not everything he
wants and demands) from the defendants, and he has deposed Dr. Isles, the sole witness
1

Plaintiffs’ complaint alleges Steve Vallejo died on May 21, 2011, from complications
arising from myelodysplastic syndrome (“MDS”) (serious infections) after ingesting the
prescription drug, Enbrel® (etanercept). Based on the representations of plaintiff’s
counsel during yesterday’s deposition of Dr. Jan Isles (an Amgen witness), Steve
Vallejo’s MDS progressed to Acute Myeloid Leukemia (AML) before his death. MDS,
along with several other causal agents or precedent disorders, can progress to AML.
2

Amgen currently intends to call at trial to refute any general causation claim. During Dr.
Isles’ deposition, Plaintiff’s counsel asked for database searches performed by Amgen in
preparation for litigation and regarding any causal connection between Enbrel and MDS,
stating he needs Amgen’s work product or in lieu thereof, full and complete access to all
Enbrel data in Amgen’s databases to further explore or buttress his claim that Enbrel can
cause MDS. But even absent Amgen’s database information, Plaintiff’s counsel was able
to confront Dr. Isles with case reports, letters, and articles which he claims support a
finding that Enbrel can cause MDS. In addition, Plaintiff’s counsel is able to, and has
demonstrated his ability to independently search and obtain information from drug
reporting databases in the public domain. Dr. Isles testified that Amgen posts all adverse
events on FDA’s site, which is then available to the public. Finally, Plaintiff’s counsel
has full access to Steve Vallejo’s medical records and history, and likely to his treating
physicians.

Plaintiff has filed a motion to compel, requesting leave to depose additional
employees of the Defendants.
documents.

He also intends to demand production of additional

A federal court is required to actively manage its docketed cases and

caseload to achieve the “just, speedy, and inexpensive determination of every action.”
Fed.R.Civ.P. 1.

At the outset of this lawsuit, Plaintiff’s counsel acknowledged that he

lacked any expert opinion supporting a causal connection between Enbrel and MDS—he
needed discovery from the defendants before he could support that prima facie element of
his case. Rather than immediately explore the boundaries of Rule 11, the court permitted
written and limited deposition discovery. And during the deposition of Dr. Isles
yesterday, Plaintiff’s counsel acknowledged he now has an expert to support Plaintiffs’
claims. That expert has not been disclosed.

Accordingly,

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To further the purposes and goals of Rule 1,

IT IS ORDERED:
1)

On or before September 12, 2016, Plaintiff’s counsel shall serve complete
expert disclosures for all experts expected to testify at trial on behalf of the
Plaintiff, (both retained experts, (Fed. R. Civ. P. 26(a)(2)(B)), and nonretained experts, (Fed. R. Civ. P. 26(a)(2)(C)), on the issue of whether
ingesting Enbrel can cause MDS.

2)

Plaintiff’s motion to compel further depositions of Defendants’ employees,
(Filing No. 106), is denied without prejudice. Further depositions may later
be permitted upon a showing that Plaintiff can present scientifically reliable
evidence and opinions supporting the allegation that Enbrel can cause
MDS.

3)

The telephonic hearing scheduled for August 18, 2016 is cancelled.

August 11, 2016.

BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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