United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge.
Court currently has 129 cases, involving approximately 698
plaintiffs, pending on its docket directly related to the
Depakote litigation. The first cases were filed in state
court in 2010 and removed to federal court on January 18,
2012. (Doc. 1). Cases continue to be filed each month with
the last case being filed, as of the date of this Order, on
August 18, 2016. See Spano et al., v. Abbott
Laboratories, Inc. et al., No. 16-cv-00930 (S.D. Ill.
2016). To facilitate the resolution of the vast number of
outstanding cases, the Court employed the
“bellwether” approach, selecting representative
cases for fast-track trials thereby allowing the parties to
assess the relative strengths and weaknesses of the evidence
and the value of the remaining claims.
bellwether case, D.W.K., a Minor by Mary Kaleta and
Daniel Kaleta, Individually and as Parents and Next Friends
of D.W.K., v. Abbott Laboratories, Inc., No. 14-cv-847
(S.D. Ill. 2014), was tried in this Court in March 2015. The
trial, which involved only one plaintiff, proceeded for
approximately fifteen court days before the jury reached a
verdict. Two additional “bellwether” cases are
set for trial in October 2016, and one bellwether is
scheduled to begin in November 2016. (see Doc. 392)
(setting the trials of: (1) H.B. and parent Stacy Bartolini,
12-cv-0053; (2) T.C. and parent Kayla Rose McGuinness-Colon,
12-cv-0694; and (3) E.R.G. and parent Christina Raquel,
Court noted in its Order dated July 6, 2016 (Doc. 485), the
bellwether process and global settlement efforts have failed.
Given the number of litigants in this case, trying cases one
plaintiff at a time is not a feasible option. Indeed, the
parties have previously proposed joining cases according to
the common issues of fact and law. (Docs. 2, 282, 287).
Court intends to hold joint trials as to common issues of
fact and law to the maximum extent possible. To facilitate
the identification of common issues, the Court ordered the
parties to depose the prescribing physicians for 132
plaintiffs. (Doc. 485, at 3). The parties were directed to
file individual reports providing specific information
related to the plaintiff's claim and summarizing each
deposition. Id. The reports are due fourteen days
after the completion of each of the individual depositions.
As of the date of this Order, the Court has received
approximately fourteen summarized reports.
now clear to the undersigned that batching cases together
along common issues of fact and law is the only way to
effectively, efficiently, and justly move through the volume
of cases before the Court. The failure of the bellwether
approach requires the Court to proceed with joint trials
resolving as many common issues as possible for as many
plaintiffs with each trial. See In re Abbott Labs.,
Inc., 698 F.3d 568, 573 (7th Cir. 2012) (“[w]e
agree with Abbott that it is difficult to see how a trial
court could consolidate the cases as requested by plaintiffs
and not hold a joint trial or an exemplar trial with the
legal issues applied to the remaining cases.”)
holding the three remaining bellwether trials will resolve
the three individual plaintiffs' cases, proceeding in
such a fashion will all but guarantee that other claims go
unresolved for decades. Accordingly, to allow the parties to
focus on the completion of the prescriber depositions and to
allow for the identification and consolidation of issues to
be jointly tried, the Court hereby VACATES the trial dates
of: (1) H.B. and parent Stacy Bartolini, 12-cv-0053; (2) T.C.
and parent Kayla Rose McGuinness-Colon, 12-cv-0694; and (3)
E.R.G. and parent Christina Raquel, 12-cv-0055. Consequently, the
pending pretrial motions specifically related to each of
these three cases are hereby DENIED without prejudice to be
refiled at a later date. Similarly, the pretrial motions in
case number 15-cv-702 and 14-cv-847 are also DENIED without
prejudice to be refiled at a later date; however,
Plaintiff's Motions to Show Good Cause Regarding Sealed
Documents (Docs. 94, 98, 149) in case No. 15-cv-702 are
GRANTED. The Court will provide further guidance related to
each of the denied motions in a subsequent order.
Court recognizes that three of the bellwether cases were
prepped for October and November trial dates. It is the
Court's intention to analyze the bellwether cases on an
expedited basis along with the other pending cases (with the
benefit of reports from prescriber depositions) for common
issues to determine the most efficient, effective, and just
way to proceed. As stated in a previous order, it is the
Court's intention that the majority of the cases on her
docket will be tried by the end of 2017. Thus, the parameters
of joint trials will be identified as soon as possible, with
a corresponding schedule for updated discovery and motion
practice related to those trials.
finally, because the Court is advised by Magistrate Judge
Williams that it is unlikely the parties will complete the
132 prescriber depositions by the current deadline for doing
so, the deadline is sua sponte EXTENDED until
November 7, 2016.
March 14, 2013, Judge Murphy entered an Order consolidating
the original fifteen Depakote litigation cases under Federal
Rule of Civil Procedure 42 and all future similarly related
cases. (Doc. 73). Since Judge Murphy entered the
consolidation order, over 117 cases have been filed in this
district, under separate diversity jurisdiction, alleging
injury by Abbott's product, Depakote. Many of the cases
have already been consolidated with the lead case.
See Exhibit B (listing all of the Depakote
litigation cases consolidated with the lead 12-cv-52 case.)
The Court finds that the remaining cases set forth in Exhibit
A present common issues of fact or law. In an effort to
streamline and clarify filing and docketing in the Depakote
litigation cases, the Court orders the following:
No. 12-cv-52-NJR-SCW, Alexander et al., v. Abbott
Laboratories Inc., is hereby designated as the lead case
for claims involving Depakote litigation. All of the cases in
Exhibit A will be consolidated, and any cases filed hereafter
will be considered “tag along” cases.
other cases involving Depakote litigation, including the
cases noted in Exhibit A, are to be related to the lead case.
Generally, filings that relate to the Depakote litigation are
to be filed in the lead case using Civil Case No.
12-cv-52-NJR-SCW. Non-exhaustive examples include motions
related to scheduling and discovery motions that raise issues
relevant to more than one related case.
Filings that are specific to an individual plaintiff, and not
to other Depakote litigation cases, are to be filed in their
individual cases specific to each plaintiff or plaintiffs.
Non-exhaustive examples include joint or unopposed motions
for leave to file an amended complaint, notifications of