United States District Court, E.D. Missouri, Eastern Division
SCOTT D. MCCLURG, et al., Plaintiffs,
MALLINCKRODT, LLC, et al., Defendants.
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE
matter is before the Court upon review of the parties'
notices (ECF Nos. 767 &768) advising the Court of their
disagreement with respect to the proposed schedule for the
following newly consolidated cases: Butler v.
Mallinckrodt LLC, No. 4:18-cv-01701-AGF; Koterba v.
Mallinckrodt LLC, No. 4:18-cv-01702-AGF; Hines v.
Mallinckrodt LLC, No. 4:18-cv-01703-AGF; and Walick
v. Mallinckrodt LLC, No. 4:18-cv-01704-AGF
(collectively, the “Butler cases”).
Before resolving these disputes, the Court wishes to remind
the parties of the procedural history of this case and to ask
the parties the parties to meet and confer regarding whether
a schedule of the type previously imposed continues to be
mass tort litigation was first filed in 2012, and since then,
claims by hundreds of plaintiffs have been consolidated
before the undersigned. Early on in the case, in lieu of a
Case Management Order (“CMO”) patterned after
Lore v. Lone Pine Corp., No. L 33606-85, 1986 WL
637507 ( N.J.Super. Ct. Law Div., Nov. 18, 1986)
(“Lone Pine”), which Plaintiffs opposed, the
Court ordered Plaintiffs to disclose to Defendants, within 60
days of filing suit, certain basic information about the
nature of their claims, including a preliminary expert report
regarding Plaintiffs' alleged exposure to radiation. ECF
Nos. 231 & 286. The Court also imposed a staggered
discovery and pretrial schedule, based on the parties'
identification, early on in this litigation, of “common
issues” that could be applicable to all or a
substantial number of the hundreds of Plaintiffs. These
common issues were defined in Case Management Order No. 1
(ECF No. 286), entered on April 17, 2015, and supplemented by
the parties on November 4, 2015, as set forth in ECF Nos. 324
CMO Nos. 1 through 13 staggered discovery and pretrial
motions such that the first phase of fact discovery, expert
designations, and Daubert and dispositive motions
was limited to common issues, and the second phase of these
pretrial proceedings was to be devoted to preparing a
representative group of Plaintiffs for individual trials. The
second phase addressed full discovery, expert designations,
and Daubert and dispositive motions applicable to
each representative plaintiff's individual claims. The
phases were staggered but overlapped, so, for example, all
individual discovery in the second phase was to be completed
by approximately five months after the close of common issues
discovery, and, likewise, expert disclosures related to
case-specific issues were due approximately five months after
common issues expert disclosures. See, e.g., ECF No.
732 (CMO No. 13, dated August 15, 2018).
if not all, of the hundreds of Plaintiffs are now subject to
Master Settlement Agreements executed on September 12, 2018,
and have been temporarily stayed while those settlement
negotiations are pending. On October 15, 2018, the Court
entered CMO No. 14 (ECF No. 741), with respect to Plaintiffs
who were not previously parties to this consolidated
litigation, such as the Butler Plaintiffs. In light
of the complexity of these consolidated cases, particularly
with respect to causation, the Court in CMO No. 14 expanded
upon the early, Lone-Pine-like showing that
Plaintiffs must make before proceeding with more detailed and
expansive discovery. In particular, the Court required more
complete early expert disclosures in the form of
case-specific expert reports addressing issues such as
radiation dose and general and specific causation for the
injuries alleged. ECF No. 741 at 8-11.
light of this procedural history, the Court turns back to the
parties' current scheduling dispute in the
Butler cases. Both sides propose some sort of phased
or staggered discovery and pretrial schedule, but instead of
the common issues previously defined, the parties refer to
the “issues required and outlined in CMO No. 14.”
The Court assumes that the parties are referring to the
issues to be addressed in the early, case- specific expert
reports required to be produced under CMO No. 14. These
issues relate to each individual plaintiff's prima facie
claim and, as such, are not the sort of common issues
previously identified as warranting phased or staggered
discovery. It may well be that, given the amount of discovery
conducted previously, further discovery on common issues is
not necessary, or that, in light of the significantly smaller
number of plaintiffs in the Butler cases, a
staggered common issues schedule is no longer efficient or
appropriate. The Court will ask the parties to confer on
these issues before entering any scheduling order with
respect to the Butler cases.
the parties are directed to consider:
Whether the parties wish to stagger pretrial proceedings
related to common issues, as defined above, and to the
individual plaintiffs' claims. See ECF Nos. 286,
324, 325 & 391.
the parties wish to stagger pretrial proceedings related to
common issues, whether the parties wish to engage in further
discovery related to common issues, and if so:
a. a schedule for additional discovery on common issues;
b. deadlines for Plaintiffs to disclose the summaries and
reports required by Rule 26(a)(2)(B) and (C), Fed. R. Civ.
P., for any expert they intend to call at trial to address
common issues; the deposition of said experts; Defendants to
disclose the summaries and reports required by Rule
26(a)(2)(B) and (C), Fed. R. Civ. P., for any expert they
intend to call at trial to address common issues; and the
deposition of said experts;
c. a schedule for any Daubert motions related to
expert witnesses identified to testify regarding common
issues; d. deadlines for any motion for summary judgment
related to allegedly case dispositive ...