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Abarca v. Merck & Co.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 27, 2009

ABARCA, RAUL VALENCIA, ET AL., PLAINTIFFS,
v.
MERCK & CO., INC., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

SCHEDULING CONFERENCE ORDER

I. Date of Scheduling Conference.

January 7, 2009.

III. Fifth Amended Complaint and Defendants' Responsive Pleadings/Motions.

1. On December 30, 2008, Plaintiffs filed their Fifth Amended Complaint. Defendants' responses to the Fifth Amended Complaint shall be due February 9, 2009. To the extent that Defendants respond by way of motion, Plaintiffs' oppositions to any such motions shall be due February 24, 2009. Defendants' replies shall be due March 3, 2009. Defendants' motions with respect to the Fifth Amended Complaint will be heard at 10:00 a.m. on March 16, 2009, in Courtroom 3.

IV. The Proposed Addition of Three Plaintiffs

1. In Plaintiffs' Supplement to Joint Scheduling Conference Statement dated December 22, 2008 ("Plaintiffs' Supplement"), they propose that Carlos Sanchez, Maria Sanchez, and Carla Sanchez be reinstated and/or joined as Plaintiffs in this action. The parties have agreed that Plaintiffs' Supplement will be deemed a motion to amend for purposes of this issue. Any opposition by Defendants to such motion shall be due February 9, 2009. Any Plaintiffs' reply in support of said motion shall be due February 24, 2009. Plaintiffs' motion will be heard at 10:00 a.m. on March 16, 2009, in Courtroom 3.

V. Amended Case Schedule.

1. In addition to scheduling the matters in Sections III and IV above, the Court and the parties engaged in a lengthy discussion regarding trial scheduling and trial process. The Court, after considering the comments of the parties, and acknowledging that the schedule may change depending on the parties' progress in preparing the case for trial, set the following dates:

a. Trial is presently set to begin at 9:00 a.m. on November 23, 2010, in Courtroom 3.

b. In anticipation of this trial date, the Court sets the following dates by which certain pre-trial activities should be completed:

(1) February 28, 2009, - no later than this date Plaintiffs will designate ten test Plaintiffs for trial.

(2) April 30, 2009 - no later than this date Defendants will designate ten test Plaintiffs for trial.

(3) March 1, 2010 - Plaintiffs designate expert witnesses and submit expert reports pursuant to Federal Rule of Civil Procedure 26(a)(2).

(4) April 1, 2010 - Defendants designate expert witnesses and submit expert reports pursuant to Federal Rule of Civil Procedure 26(a)(2).

(5) May 1, 2010 - the parties designate supplemental or rebuttal experts and submit expert reports pursuant to Federal Rule of Civil Procedure 26(a)(2).

(6) June 30, 2010 - all percipient and expert witness discovery will be completed.

(7) July 13, 2010, 10:00 a.m. - the parties will attend a settlement conference before Magistrate Judge Dennis L. Beck in Courtroom 9.

(8) July 15, 2010 - all non-dispositive motions of the parties must be filed by this date.

(9) July 30, 2010 - all dispositive motions of the parties must be filed by this date.

(10) August 20, 2010 - hearing date for nondispositive motions.

(11) September 13, 2010 - hearing date for dispositive motions.

(12) October 18, 2010, 11:00 a.m. - Pretrial Conference in Courtroom 3.

VI. Miscellaneous Issues Regarding Trial Witness Disclosures and Trial of Test Plaintiffs.

1. Any witness who will be called to testify at trial, including any Plaintiff who is not designated as a test Plaintiff, must be disclosed by the party intending to call such witness at trial on or before January 31, 2010. Any person not so disclosed will not be allowed to testify as a trial witness.

2. In the event any test Plaintiff identified by Defendant is dismissed at any time prior to the start of trial, Defendants shall have the opportunity and a reasonable amount of time to select a substitute Plaintiff and complete reasonable discovery related to that Plaintiff.

3. The Court presently envisions that one trial of twenty test Plaintiffs, ten selected by Plaintiffs and ten selected by Defendants, will be sufficient to resolve all liability claims as to all Plaintiffs. Plaintiffs similarly contemplate only one trial of twenty test Plaintiffs. In light of the diversity of Plaintiffs' claims, including timing and location of residence in allegedly affected neighborhoods, differences in personal injury and property damage claims, the diversity of Defendants, and other variables, at this stage of the proceedings Defendants believe that it is impractical to assume that liability and damage determinations as to twenty test Plaintiffs can or should determine the outcome of the more than 2,180 remaining Plaintiffs. If necessary, the matters of issue and claim preclusive effect of such a trial shall be raised by motion to be filed by October 1, 2009, and heard November 30, 2009, in Courtroom 3 at 10:00 a.m.

4. In the event a Plaintiff in the initial trial of test Plaintiffs obtains findings of liability, compensatory damages, and malice, oppression or fraud as to one or more Defendants, the same jury that made such findings will also determine the amount, if any, of punitive damages. At this point, it is unclear whether it would be proper for a different jury in a subsequent phase of trial to make any determination concerning either the appropriateness or the amount of punitive damages based on the findings of a jury that sat in a prior phase of trial.

5. This Order is without prejudice to the right of any party to move to sever claims and/or parties and/or to separately try issues, and/or bifurcate the proceedings. Any objections to the matters set forth in this Scheduling Order are preserved by the parties, and the Court will address such objections as appropriate during the course of these proceedings.

6. The Court will hold a further scheduling conference to evaluate the status of discovery, to evaluate the uniqueness or similarity of the Plaintiffs' claims, and to assess the various claims, parties, and theories of liability that remain in the case. The Court may determine with the parties at that time whether any modifications or adjustments to the above pre-trial and trial schedule are appropriate. At that time, the Court, with the assistance of the parties, may also evaluate and decide the issue of whether a second group of test Plaintiffs should be designated, or whether such designation should await completion of the first trial, and it may also determine preliminary procedures for any contemplated second trial. That further scheduling conference shall be held on November 30, 2009, at 11:00 a.m. in Courtroom 3.

IT IS SO ORDERED.

20090127

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