United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge.
Court held a telephonic status conference on June 30, 2017.
This Order memorializes the Court's findings and rulings
at that hearing and sets additional deadlines.
Parents as Plaintiffs
number of complaints have the minor child's parent listed
as: “next friend” and “individually.”
Drafting the complaint in this way suggests that parents are
making their own claim for damages and not merely serving as
the representative of the claim of the minor. This
uncertainty created a small dispute during voir dire
in the Raquel case. Accordingly, the parties are
directed to meet and confer regarding whether the parents are
acting simply in a representative capacity or whether they
are seeking their own claim for individual damages in
addition to their role as the representative of the minor
child. The parties shall file a joint brief clarifying their
positions on this subject on or before August 22,
Dr. Cunniff's Scheduling Issues
provided an email submission to the Court in advance of the
June 30 hearing suggesting that Plaintiffs' causation
expert in the Pyszkowski cases, Dr. Cunniff, was
“unavailable for the September 25, 2017 trial.”
No further explanation was provided concerning his alleged
unavailability. The Court inquired into Dr. Cunniff's
scheduling issues at the status conference, but no further
clarification could be provided by the lead attorney on the
Court selected the trial dates and Plaintiffs for the next
two Depakote trials based upon the parties'
representation regarding witness availability. The Court has
already lost six full weeks of trial to expert issues in this
mass action. Accordingly, the cases previously selected for
the September 25, 2017 and November 28, 2017 trial dates will
not be continued or vacated based on scheduling conflicts. If
needed, a video trial deposition may be taken to play at
Dr. Olaf Bodamer
indicated that their causation expert in Sifuentes
and Dotegowski, Dr. Olaf Bodamer, voluntary accepted
additional work responsibilities and no longer wishes to
participate as an expert in the mass action. (Doc. 1011, pp.
8-9). Plaintiffs filed a motion to substitute only in the
Dotegowski case, as Dr. Bodamer indicated he was
willing to continue as an expert in the Sifuentes
case. (Case No. 16-CV-432, Doc. 16).
Bodamer claims that he has “taken on another major role
at Boston Children's Hospital….[and this] new role
leave[s] me with very little time to pursue outside projects
or litigation related activities.” (Case No. 16-CV-432,
Doc. 16-1). Plaintiffs fail to adequately support their
motion to substitute for two primary reasons.
the vast majority of the expert's work, e.g., reviewing
records, formulating opinions, drafting reports, drafting
rebuttal reports, and sitting for discovery depositions, has
already occurred in Sifuentes and
Dotegowski. Second, Dr. Bodamer fails to provide any
further explanation for how his new role impacts his ability
to participate in this trial beyond: “The new role
leaves me with very little time….” Expert
discovery cannot be reopened this late in the litigation
predicated on such a vague and undescriptive statement. Dr.
Bodamer's assertion that he is “unable to…
prepare and present deposition and/or present [himself] for
trial” further undercuts his Declaration, because a
trial date in Dotegowski has not been
Court has repeatedly demonstrated a willingness to work with
the parties to find trial dates that work with the schedules
of everyone involved, including expert witnesses. If taken to
its logical conclusion, Dr. Bodamer's Declaration would
imply that despite this flexibility, he is so busy that there
will never be a time when he can come and present
testimony in this trial. Such a sweeping unsupported
assertion cannot meet the standards of Rule 16 or Rule 37,
warranting reopening of expert discovery. Therefore,
Plaintiffs' motion for leave to designate a substitute
expert is DENIED. (Case No. 16-CV-432, Doc.
16). The Court will make every reasonable effort to work
around Dr. Bodamer's unspecified “major role”
to facilitate his participation in the Dotegowski
Dr. Cheryl Blume
indicated in their pre-status conference submission that Dr.
Blume has a conflict for the November trial slot. At the June
30 conference Plaintiffs provided further clarification
indicating that Dr. Blume would be available for the November
trial. (Doc. 1011). The Court will not postpone or continue
the September or November trials absent unforeseeable
Motion to Amend and Sever
filed a motion to amend and sever the claims of the
Erpelding Plaintiffs from the rest of the
overarching complaint and then file an amended complaint
specific to their cases. (Case No. 13-CV-134, Doc. 178).
Plaintiffs A.E. and G.E. are twins, while C.E. is another
Erpelding sibling. Abbott does not oppose the motion
to amend but does not want all three claims consolidated for
trial. (Case No. 13-CV-134, Doc. 179). Plaintiffs' motion
to sever the Erpelding Plaintiffs is
GRANTED. (Case No. 13-CV-134, Doc. 178). For
docket control purposes, the Clerk of Court is directed to
open a new case number and assign Amanda Erpelding, A.E.,
G.E., and C.E. to the new case number. All future pleadings
relating to these Plaintiffs shall be filed in the new case
number. The Court does not intend to try the claims of C.E.
with the claims of A.E. and G.E.
Motion to Extend ...