Opinion
MDL No. 1261.
August 23, 2004
SIXTEENTH CASE MANAGEMENT ORDER
AND NOW, this 23rd day of August, 2004, following a telephone status conference with the parties, through counsel, on said date, at the joint request of the parties for an amended scheduling order, IT IS ORDERED as follows with respect to all lawsuits filed by former class members who opted out of the classes as certified by the Court ("direct actions"):
A. Liaison Counsel
1. Richard J. Leveridge, Esquire, of the firm of Dickstein Shapiro Morin Oshinsky LLP, and Richard A. Arnold, Esquire, of the firm of Kenny Nachwalter Seymour Arnold Critchlow Spector, P.A., shall continue as liaison counsel for all plaintiffs in all direct actions and shall continue to keep the Court advised of the status of all direct actions.
2. Ralph G. Wellington, Esquire, and Sherry A. Swirsky, Esquire, of the firm of Schnader Harrison Segal Lewis LLP shall continue as liaison counsel for defendants. Liaison counsel shall perform those functions set forth in the Court's October 4, 2000, Practice and Procedure Order, ¶ 7.
Transfer of Direct Actions
All conditional transfer orders issued by the Judicial Panel on Multidistrict Litigation pursuant to Rule 7.4 of the Rules of Procedure of the Judicial Panel on Multidistrict Litigation have become final. No new direct actions have been filed in state or federal court.
C. Pleadings
The pleadings in all direct actions are closed with the exception of the most recently transferred case filed by Farmland National Beef Packing Company in which there is presently pending a motion to dismiss for lack of subject matter jurisdiction. Counsel for the parties in the recently transferred Farmland case shall serve the Court (Chambers, Room 12613 with two (2) copies of all motion papers within fourteen (14) days.
D. Fact Discovery in Direct Actions
1. All fact discovery shall close on March 31, 2005. Discovery requests must be served so that the response date under the Federal Rules of Civil Procedure shall fall before the date set for the close of discovery.
2. The limitation on the number of interrogatories permitted under Federal Rule of Civil Procedure 33(a) shall not apply.
3. The attorneys in the direct action cases shall endeavor to comply with the provision of Federal Rule of Civil Procedure 30(d)(2) limiting a deposition to one (1) day of seven (7) hours. The Court having stated during the status conference of August 23, 2004, that it will adopt a flexible approach to the seven (7) hour rule in view of the role of counsel for plaintiffs in the direct actions, counsel shall endeavor to resolve all objections relating to that rule before presenting any such objection to the Court.
4. Where applicable, discovery in the direct actions shall proceed in accordance with this Court's Order dated July 1, 2003.
E. Expert Discovery and Daubert Motions in Direct Actions
1. On or before April 29, 2005, plaintiffs' expert reports together with production of all backup shall be served. Depositions of plaintiffs' experts shall be taken by May 31, 2005.
2. On or before July 29, 2005, defendants' expert reports together with production of all backup shall be served. Depositions of defendants' experts shall be taken by September 1, 2005.
3. On or before September 20, 2005, plaintiffs' rebuttal expert reports together with production of all backup shall be served. Depositions of plaintiffs' experts on rebuttal issues shall be taken by October 21, 2005.
4. On or before November 18, 2005, Daubert motions, if any, shall be filed and served. Responses shall be filed and served on or before December 19, 2005. Reply briefs shall be filed and served on or before January 17, 2006.
5. A hearing on any Daubert motions, if necessary, shall be held on February 27, 2006, at 10:30 A.M., in Courtroom 12-B, United States Courthouse, 601 Market Street, Philadelphia, Pennsylvania.
F. Dispositive Motions in Direct Actions
1. On or before November 18, 2005, dispositive motions, if any, shall be filed and served. Responses shall be filed and served on or before December 19, 2005. Reply briefs shall be filed and served on or before January 17, 2006.
2. A hearing on any dispositive motion, if necessary, shall be held on March 29, 2006, at 10:30 A.M., in Courtroom 12-B, United States Courthouse, 601 Market Street, Philadelphia, Pennsylvania.
G. Discovery Disputes in Direct Actions
1. The parties are not required to follow all of the principles and guidelines for depositions set forth in Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993). The Court directs the parties to proceed with discovery in accordance with guidelines provided at the status conferences held on June 9, July 10 and August 8, 2003. In addition, the parties may avail themselves of the Court's guidance on discovery matters as circumstances may suggest including, but not limited to, seeking advice with respect to the propriety of deposition questions during the course of a deposition by telephone conference.
2. In the event a discovery dispute arises which the parties are unable to resolve, the party seeking the discovery shall write the Court briefly setting forth the issues in dispute. The letter to the Court shall describe the issue in dispute without advocating. The opposing party or parties shall respond briefly with no detail and designate to the Court in writing the counsel who will handle the dispute. The Court then will either schedule a conference to resolve the issue, which may be held by telephone, or will set forth a schedule for briefing of the issue and oral argument, if necessary.
H. Privileges Preserved
No communication among plaintiffs' counsel or among defendants' counsel shall be taken as a waiver of any privilege or protection to which they would otherwise be entitled.
I. Status Conference
The Court will hold a telephonic status conference with liaison counsel on October 8, 2004, at 4:00 P.M. Any other attorneys interested in participating in the October 8, 2004, telephone conference may do so. Liaison counsel for the defendants, Sherry A. Swirsky, Esquire, shall initiate the telephone conference. The Court will address during the October 8, 2004 conference, the status of any remaining discovery disputes and any other matters which are ripe for discussion.
The October 8, 2004, telephone status conference will be recorded. Further telephone status conferences will be scheduled during the October 8, 2004 telephone conference.
J. Trial
The following applies to any direct actions that will be tried in this Court:
1. On or before April 3, 2006, the parties shall exchange pre-marked copies of all exhibits.
2. On or before May 8, 2006, the parties shall file and serve (a) motions in limine (excepting Daubert motions); (b) proposed jury voir dire questions; (c) proposed jury instructions with pinpoint citations of authority for each point (ONE POINT PER PAGE); (d) proposed jury interrogatories; (e) a trial memorandum on the legal issues involved in the case; (f) a joint proposed statement of the case to be read to the jury; (g) an exhibit list briefly describing each exhibit; and, (h) a witness list identifying each witness and the subject of his/her testimony.
If a model jury instruction taken, for instance, from O'Malley, Grenig Lee, Federal Jury Practice and Instructions, or Sand,Modern Federal Jury Instructions is submitted, the parties shall state whether the proposed jury instruction is unchanged or modified. If a party modifies a model jury instruction the modification shall be set forth in the following manner: additions shall be underlined and deletions shall be placed in brackets.
The joint written statement of the case for reading to the jury at the commencement of the trial which shall cover (a) a brief statement of the facts; (b) a brief statement of plaintiffs' causes of action and the essential elements of each cause of action; and, (c) a brief statement of the defenses and the essential elements of each affirmative defense. The statement of the case shall not exceed five (5) pages in length.
3. Objections to the trial submissions identified in the preceding paragraph including responses to any motions in limine shall be filed and served on or before May 30, 2006.
4. A Final Pretrial Conference shall be held on June 7, 2006, at 2:00 P.M., in Courtroom 12-B, U.S. Courthouse, 601 Market Street, Philadelphia, Pennsylvania. The agenda for the Conference shall include:
(a) consolidation;
(b) bifurcation;
(c) separate trials;
(d) objections to the trial submissions;
(e) motions in limine;
(f) publicity; and,
(g) jury selection.
The parties are granted leave to add matters to the agenda by notice to the Court at least one (1) week before the Final Pretrial Conference.
5. Trial or trials of this matter shall begin on September 18, 2006, at 10:00 A.M., in Courtroom 12-B, U.S. Courthouse, 601 Market Street, Philadelphia, Pennsylvania.
K. Service of Copies of Papers on Court
Two (2) copies of each motion, response and reply, and all trial submissions, shall be served on the Court (Chambers, Room 12613) when the originals are filed.