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McClurg v. Mallinckrodt, LLC

United States District Court, E.D. Missouri, Eastern Division

February 11, 2019

SCOTT D. MCCLURG, et al., Plaintiffs,
v.
MALLINCKRODT, LLC, et al., Defendants.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE

         This 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 efficient.

         BACKGROUND

         This 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”), [1]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 & 325.[2]

         Accordingly, 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).

         Most, 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.

         DISCUSSION

         In 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.

         Specifically, the parties are directed to consider:

         1. 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.

         2. If 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;[3]
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 ...

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