Franks v. Biomet, Inc., et al

Filing 31

ORDER granting 30 Stipulation to Amend 26 Scheduling Order (First Request). Discovery due by 10/29/2020. Motions due by 12/4/2020. See Order for additional deadlines. Signed by Magistrate Judge Brenda Weksler on 2/11/2020. (Copies have been distributed pursuant to the NEF - DRS)

Case 2:16-cv-00264-APG-BNW Document 30 Filed 02/07/20 Page 1 of 6

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FAEGRE DRINKER BIDDLE & REATH LLP
TARIFA B. LADDON (admitted Pro Hac Vice)
[e-mail]
THEODORE O’REILLY (admitted Pro Hac Vice)
[e-mail]
11766 Wilshire Boulevard, Suite 750
Los Angeles, CA 90025
Telephone: [phone]
Facsimile: [phone]
JAMES R. CHRISTENSEN P.C.
JAMES R. CHRISTENSEN
(Nevada Bar. No. 0003861)
[e-mail]
601 S. 6th St.
Las Vegas NV 89101
Telephone:
[phone]
Facsimile:
[phone]

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Attorneys for Plaintiff
REBECCA FRANKS

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[Additional attorneys listed on following page]

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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REBECCA FRANKS,
Plaintiff,

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vs.
BIOMET, INC.; BIOMET
ORTHOPEDICS, LLC,
Defendants.

Case No.: 2:16-cv-00264-APG-BNW
Honorable Andrew P. Gordon
Honorable Brenda Weksler
STIPULATION TO AMEND
SCHEDULING ORDER
(First Request)
Case Remanded: December 28, 2018

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STIPULATION TO AMEND SCHEDULING ORDER

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ALVERSON TAYLOR & SANDERS
LEANN SANDERS
(Nevada Bar No. 000390)
[e-mail]
6605 Grand Montecito Parkway, Suite 200
Las Vegas, NV 89149
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendants
BIOMET, INC. and
BIOMET ORTHOPEDICS, LLC

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STIPULATION TO AMEND SCHEDULING ORDER

Case 2:16-cv-00264-APG-BNW Document 30 Filed 02/07/20 Page 3 of 6

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Plaintiff Rebecca Franks (“Plaintiff”), together with Defendants Biomet Inc. and Biomet

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Orthopedics, LLC (collectively, “Biomet,” and together with Plaintiff, the “Parties”), by and through

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their respective undersigned counsel, respectfully move the Court for an extension of fact and expert

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discovery deadlines to enable the Parties time to complete complex pretrial efforts and efficiently

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explore options for resolving this case. In support of their stipulation, the Parties state as follows:

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1.

This case involves a variety of product liability claims against Biomet due to

Plaintiff’s use of the Biomet M2a Metal-on-Metal Hip Replacement System.
2.

This case was consolidated into the United States District Court for the Northern

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District of Indiana in the South Bend Division, where Judge Robert L. Miller, Jr. presides over In

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Re: Biomet M2a Magnum Hip Implant Products Liability Litigation (MDL 2391), cause number:

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3:12-MD-2391 (“Biomet M2a Magnum MDL”). Judge Miller remanded this case to this Court on

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December 28, 2018. See Dkt. 18, MDL Conditional Remand Order Finalized, including the Second

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Suggestion of Remand and Explanation to Transferor Courts (“Remand order”).

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3.

After remand, this Court issued a Scheduling Order on August 26, 2019, setting a

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fact discovery deadline of February 28, 2020 and an expert discovery deadline of June 16, 2020,

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among other pretrial dates. Dkt. No. 26.

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4.

Since remand, Biomet has actively engaged in discovery efforts while

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simultaneously making good faith efforts to settle this case. However, as detailed below, additional

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time is needed to potentially reach a resolution of this case and, alternatively, complete fact and

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expert discovery due to the complexity of this litigation.

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5.

Biomet has requested medical records from subpoenaed Plaintiff’s medical records

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from 15 medical providers. Thus far, Biomet has collected 2,611 pages of records but is still in the

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process of completing case-specific record collection from Plaintiff’s remaining treating physicians

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and facilities.

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6.

Biomet requires the medical records from Plaintiff’s treating physicians and facilities

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in order to identify additional treaters, depose treating physicians and prepare expert witnesses.

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This task has been laborious due to the large number of physicians and medical departments being

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contacted. Once medical record collection is complete and Biomet has diligently reviewed the
-1STIPULATION TO AMEND SCHEDULING ORDER

Case 2:16-cv-00264-APG-BNW Document 30 Filed 02/07/20 Page 4 of 6

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produced documents, Biomet will propound written discovery requests and notice depositions of

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Plaintiff’s treating physicians to timely complete fact discovery.

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The Parties have also been collaborating to locate Plaintiff’s missing explanted hip

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device at issue in this litigation. On November 26, 2019, Biomet subpoenaed the facility where

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Plaintiff underwent a revision surgery to retrieve the explant device. Plaintiff intends to notice a

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F.R.C.P. 30(b)(6) deposition to this facility in the event the facility does not produce the device. If

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the explant is located and produced, the Parties must reach an agreement as to the protocol for

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shipping, handling, and inspection of the explant device. Once Biomet is in possession of the

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device, its experts will conduct an inspection that will take approximately six weeks to complete.

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Biomet’s inspection must be done in order to complete expert disclosures.
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The Parties agree that continuing fact and expert discovery deadlines will allow them

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the necessary time to engage in settlement negotiations, increase the likelihood of settlement, and

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result in greater efficiencies and potential resolution of the case. In the event these negotiations are

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unsuccessful, the Parties will still have sufficient time to complete pretrial efforts in advance of

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deadlines.

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9.

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Additional time to complete the above-described pretrial efforts would benefit both

sides and result in greater judicial efficiency.

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10.

This request does not affect a trial date, as one has not yet been set.

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11.

This is the Parties’ first request for an extension of pretrial deadlines.

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12.

This request is not made for the purpose of delay.

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IT IS HEREBY STIPULATED AND REQUESTED, by and between the Parties and their

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respective counsel, that discovery and motion deadlines be extended as specified in this stipulation

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as follows:
• Last date to complete case-specific fact discovery from February 28, 2020 to July 3,
2020.

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Last date for Plaintiff to designate and serve expert witness reports for case-specific
experts from April 14, 2020 to August 19, 2020.

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Last date for Defendants to designate and serve expert witness reports for case-specific
experts from May 12, 2020 to September 24, 2020.
-2STIPULATION TO AMEND SCHEDULING ORDER

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Last date to disclose rebuttal experts from June 2, 2020 to October 2, 2020.

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Last date to complete case-specific expert discovery from June 16, 2020 to
October 29, 2020.

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• Last date to file motions in limine and dispositive motions from July 27, 2020 to
December 4, 2020.

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Dated: February 7, 2020

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FAEGRE DRINKER BIDDLE & REATH LLP
By:
Tarifa B. Laddon (Pro Hac Vice)
Theodore O’Reilly (Pro Hac Vice)

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Attorneys for Defendants
BIOMET, INC. and BIOMET ORTHOPEDICS,
LLC

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Dated: January 27, 2020

J
JAMES R. CHRISTENSEN P.C.
A
By:

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/s/James R. Christensen

James R. Christensen

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Attorneys for Plaintiff
REBECCA FRANKS

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IT IS SO ORDERED:
2/11/2020
DATED: __________

____________________________________
UNITED STATES MAGISTRATE JUDGE

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-3STIPULATION TO AMEND SCHEDULING ORDER

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CERTIFICATE OF SERVICE
The undersigned certifies that service of the foregoing pleading or paper was sent via
electronic service on February 7, 2020, to the following attorneys of record:
James R. Christensen
JAMES R. CHRISTENSEN P.C.
601 S. 6th St.
Las Vegas NV 89101

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/s/
Rosie Garcia-Zapatero

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STIPULATION TO AMEND SCHEDULING ORDER