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In re Alexander

United States District Court, S.D. Illinois

July 21, 2017

IN RE DEPAKOTE: RHEALYN ALEXANDER, et al., Plaintiffs,
v.
ABBOTT LABORATORIES, INC., and ABBVIE, INC., Defendants.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL United States District Judge.

         The 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.

         A. Parents as Plaintiffs

         A large 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, 2017.

         B. Dr. Cunniff's Scheduling Issues

         Plaintiffs 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 case.

         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 trial.[1]

         C. Dr. Olaf Bodamer

         Plaintiffs 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).

         Dr. 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.

         First, 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 set.[2]

         This 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 trial.

         D. Dr. Cheryl Blume

         Plaintiffs 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 extraordinary events.

         E. Motion to Amend and Sever

         Plaintiffs 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.

         F. Motion to Extend ...


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