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Abarca et al. v. Merck & Co.


March 1, 2012


The opinion of the court was delivered by: Hon. David O. Carter District Court Judge

Hon. James L. Smith (Ret.) JAMS 500 N. State College Blvd. Suite 1400 Orange, CA 92868 Telephone: (714) 939-1300 Fax: (714) 939-8710

Judge: Hon. David O. Carter Courtroom: 9D


(February 27, 2012)

The undersigned having been appointed Discovery Special Master (Special Master) in the above entitled matter to consider and offer recommendations to the Court regarding discovery issues hereby submits the following Report and Recommendation regarding the scheduling of percipient witness depositions.


In its Order of January 23, 2012, the Court required the parties to submit a joint schedule of not more than the fifty (50) depositions. Plaintiffs (collectively) and Defendants (collectively were each allocated 25 depositions. In assisting the parties in their compliance with this Order the Referee conducted a deposition setting conference on February 24, 2012, attended by counsel for all parties. The following schedule for the taking of percipient witness depositions was approved by all parties. For convenience only the last name of the person being deposed is indicated on this schedule.

04/17/12 Cooter Defendant 04/18/12 Brady Defendant 04/19/12 Lielke Defendant 04/16/12 Railey Plaintiffs 05/01/12 Reyes Plaintiffs 05/02/12 Winder Plaintiffs 03/27/12 Tyls Defendant 03/28/12 Babos Defendant 05/03/12 Vega Plaintiffs 05/10/12 Ange Plaintiffs 04/06/12 Madrigal Plaintiffs 05/07/12 Benitez Plaintiffs 05/09/12 Smith Defendant 05/08/12 Boyd Plaintiffs 05/21/12 Davis Plaintiffs 04/04/12 Speice Defendant 03/21/12 Spizzer Defendant 05/22/12 Amstad PMKs Plaintiffs 04/26/12 Amstad PMKs Plaintiffs 06/05/12 Merck PMK Plaintiffs 05/22/12 Merck PMK Plaintiffs

The parties further stipulated, subject to approval of the Court, as follows:

1. As to all of witnesses who are subject to the subpoena power or order of this Court requiring appearance their depositions shall be conducted at the offices of the Special Master located at 500 N. State College Blvd., 14th Floor, Orange, California.

2. All depositions shall commence at 9:00 a.m. on the date indicated unless otherwise directed by the Special Master.

3. All depositions shall be for a period not to exceed 7 hours of examination time.

4. The Special Master is authorized, upon good cause shown, to modify the deposition schedule by substituting deponents, allowing additional depositions (not to exceed 50 total), and rescheduling depositions so long as such modifications do not extend the discovery cut-off date beyond October 19, 2012.

5. Interrogatories shall be limited to one set of not more than 25 interrogatories propounded to each defendant by plaintiffs collectively, and each plaintiff by defendants collectively. Additional interrogatories may be authorized by the Special Master upon good cause shown.

6. Requests for production of documents shall be limited to those documents not previously produce in discovery and relating to interrogatories propounded by the parties.

7. Requests for Admission shall be limited to 25 for Plaintiffs collectively and 25 for defendants collectively. Additional requests for admission may be authorized by the Special Master upon good cause shown.

8. The discovery stay presently in place is lifted forthwith upon the Court's approval of this Report and Recommendation.

9. Plaintiff Alejandra Aguirre shall be removed from the group of 10 plaintiffs identified as "representative plaintiffs" whose claims are at issue in this phase of the litigation. This phase shall continue with the remaining 9 plaintiffs only.

10. The designation of expert witnesses by the parties shall be contemporaneous on a date agreed. Any counter-designations shall also be contemporaneous.


The Report and Recommendation of the Special Master is accepted and approved. Percipient witness depositions shall be conducted at the times and places specified in the Report subject to modifications approved by the Special Master. The stipulations contained in the Special Master's Report are accepted and approved by the Court. The Special Master is authorized to make such modifications to the deposition schedule as he may deem appropriate upon good cause shown so long as such modifications do not delay the completion of discovery beyond the Court ordered discovery cut-off date of October 19, 2012.

Date: February 28, 2012

James L. Smith Discovery Referee



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