POLT et al v. SANDOZ, INC.RESPONSE in Opposition re MOTION to ContinueE.D. Pa.March 14, 2019IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CAROLINE POLT AND MONICA POLT, Individually and as Co- Executors of the Estate of JOANNE POLT, deceased, Plaintiffs, vs. SANDOZ INC., Defendant. Civil Action No. 16-2362 Hon. Eduardo Robreno FIFTH SCHEDULING ORDER AND NOW, this ____ day of _______, 2019, upon consideration of Plaintiffs’ Opposed Motion for Continuance, and Defendant Sandoz Inc.’s Response in Opposition thereto, it is hereby ORDERED that said Motion is DENIED. However, the deadline to complete fact and expert discovery is hereby extended until May 1, 2019, subject to the following limitations: 1. Unless otherwise herein stated, all deadlines and requirements applicable under the Fourth Scheduling Order (Dkt. No. 101) remain in place. 2. The deadline to disclose any expert witnesses and produce expert reports has expired and is not reopened or extended. No further experts shall be disclosed or identified by any party, and the parties’ expert reports may not be supplemented or amended after entry of this Order except upon a motion for leave of Court and for good cause shown. Case 2:16-cv-02362-ER Document 113 Filed 03/14/19 Page 1 of 20 3. Other than as stated in Paragraph 5 below, expert witnesses who have previously served reports and/or given deposition testimony in this case shall not disclose any new opinions not previously included in their prior reports and/or depositions. Further supplemental reports from previously disclosed expert witnesses shall not be permitted. 4. Discovery shall remain open only for the limited purpose of completing previously-requested discovery. No party shall serve additional written discovery on any other party, and Defendant shall not be required to produce any witnesses other than those requested and scheduled by agreement of the parties prior to the filing of the Opposed Motion for Continuance. However, the parties are reminded of their continuing obligation to timely supplement their previous discovery responses and productions with responsive information and documents. 5. In the event Plaintiffs’ experts who have already testified at deposition contend that any documents produced after their depositions somehow alter the opinions to which they previously testified, or alter the bases or reasons for their opinions or their anticipated trial testimony, Plaintiffs shall provide notice in a letter to Sandoz on or before April 1, 2019, and shall set forth the new or changed opinions, bases, reasons, or anticipated trial testimony of the expert and the specific documents they contend prompted the change. Plaintiffs shall Case 2:16-cv-02362-ER Document 113 Filed 03/14/19 Page 2 of 20 also provide at least one date when each such expert is available to give a supplemental deposition on such issues on or before May 1, 2019. Without limitation of Sandoz’ ability to challenge any new or changed opinions, bases, reasons, or anticipated testimony, Sandoz shall have the option in its sole discretion upon receipt of such disclosure to take supplemental depositions of such expert(s) on their new or changed opinions, bases, reasons, or anticipated trial testimony. 6. Any motions for summary judgment shall be filed by June 3, 2019. Responses to any motions for summary judgment shall be filed by July 3, 2019. 7. In the event a motion for summary judgment is filed, pre-trial deadlines set forth in the following paragraphs are suspended until further order of the Court. 8. Pretrial memoranda pursuant to Local Rule of Civil Procedure 16.1(c); proposed voir dire questions, jury instructions,1 special interrogatories, and verdict forms for a jury trial (or proposed findings of fact and conclusions of law for a non-jury trial); and any motions in limine shall be filed by July 31, 2019. Responses to any motions shall be filed by August 14, 2019. 1 Each proposed jury instruction should be numbered, should appear on a separate page, and should include citations to the authorities supporting the proposed instruction. Case 2:16-cv-02362-ER Document 113 Filed 03/14/19 Page 3 of 20 9. The case shall be placed in the trial pool on August 28, 2019, or if a motion for summary judgment is filed, 30 days from the disposition of the motion. Once placed in the trial pool, a case may be called to trial upon twenty-four hours’ notice to counsel. AND IT IS SO ORDERED. EDUARDO C. ROBRENO, J. Case 2:16-cv-02362-ER Document 113 Filed 03/14/19 Page 4 of 20 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CAROLINE POLT AND MONICA POLT, Individually and as Co-Executors of the Estate of JOANNE POLT, deceased, Plaintiffs, vs. SANDOZ INC., Defendant. Civil Action No. 16-2362 Hon. Eduardo Robreno DEFENDANT SANDOZ INC.’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR CONTINUANCE Defendant Sandoz Inc. (“Sandoz”) hereby responds to and opposes Plaintiffs’ Opposed Motion for Continuance (the “Motion,” Dkt. Nos. 109–110), which seeks to extend discovery in this matter for at least 120 days, as follows: I. INTRODUCTION Built entirely on manufactured grounds and supported by misrepresentations and half- truths, Plaintiffs’ Motion asks this Court to reopen discovery for all purposes until at least July 2019, and seeks to extend all other deadlines and the trial date by at least 120 days. To bolster this request, they cast false aspersions on Sandoz’ counsel and discovery conduct while failing to mention their own obstruction of discovery in this case. Plaintiffs also have contrived a false sense of urgency by canceling already scheduled corporate representative and expert witness depositions to enhance their claim of prejudice should the Court deny the Motion and leave the current March 14, 2019 close of discovery in place, a tactic that should not be rewarded. Plaintiffs chose this course of action in lieu of Sandoz’ proposal that would have allowed a fair and brief continuance solely for purposes of completing previously-requested discovery, while ensuring Plaintiffs could not exploit the continuance to launch a new wave of discovery or Case 2:16-cv-02362-ER Document 113 Filed 03/14/19 Page 5 of 20 - 2 - reopen completed discovery. Sandoz submits herewith its proposed Fifth Scheduling Order, which would keep the continuance to 45 days and would limit it to the depositions, document production, and written discovery that have already been requested by the Parties rather than reopening discovery for all purposes. This is exactly what Sandoz proposed to Plaintiffs when they first raised a potential continuance, but Plaintiffs rejected this reasonable proposal in favor of the unlimited and lengthy extension they seek in the Motion. Plaintiffs’ Motion includes several rationales for their requested continuance. First, Plaintiffs’ lead counsel Mr. Williams lost his stepfather in January and has been hampered (understandably) in his ability to complete discovery due to the extended hospitalization as well as ongoing issues related to the estate. Sandoz’ attorneys have extended their sympathies to Mr. Williams and his family, and have tried patiently to accommodate his requests for time to deal with these important family issues, including agreeing to two previous extensions of discovery in this case. However, Plaintiffs do not articulate why these unfortunate circumstances justify the four-month and unlimited extension of discovery and other deadlines, as opposed to the narrower and more limited extension that Sandoz proposed to Plaintiffs. Second, Plaintiffs falsely assert that Sandoz’ purported discovery conduct—specifically, what Plaintiffs have chosen to characterize as a failure to promptly schedule Rule 30(b)(6) depositions and a supposedly belated document production—prevented them from completing discovery in this case. Both these assertions are misrepresentations of what actually occurred. Plaintiffs did not provide a list of proposed topics of Sandoz corporate representative testimony until December 2018, and then failed to meaningfully meet and confer to narrow the topics in response to Sandoz’ letters outlining its objections until late January 2019. In February 2019, Sandoz provided proposed deposition dates for three corporate representatives on 22 topics before March 14, 2019, but it was Plaintiffs who failed to confirm those dates. Case 2:16-cv-02362-ER Document 113 Filed 03/14/19 Page 6 of 20 - 3 - As for the purported late document production, Plaintiffs have again distorted the facts. Sandoz first produced the documents about which Plaintiffs now complain to Plaintiffs’ counsel in September 2016, in the nearly identical lawsuit then pending in the United States District Court for the Western District of Texas, Rusk v. Sandoz Inc., No. 1-14-CV-00549-LY (“Rusk”). In Rusk and another highly similar amiodarone case, Priest v. Sandoz Inc., No. 1:15-cv-00822- LY (“Priest”), as well as in this case, Sandoz’ regulatory expert Nicholas Fleischer, Ph.D. noted these documents on his reliance list attached to his expert reports, and they were also cited in a Declaration in support of Sandoz’ Motion for Summary Judgment in Rusk. See Declaration of Cynthia Pitt, ¶17, attached as Exhibit 1 to the Declaration of Sara K. Thompson, Esq. (“Thompson Decl.”), which itself is attached hereto as Exhibit A. These documents have not been concealed from or sprung in surprise upon Plaintiffs; instead, Plaintiffs have had them for over two years. Sandoz only recently re-produced the documents to Plaintiffs’ counsel at their request to prevent any claims of incomplete production. Moreover, the vast majority of the documents in question are packaging batch records,2 which are relevant only to one Sandoz Rule 30(b)(6) witness and one Plaintiffs’ expert. The recent re-production of these documents in no way justified Plaintiffs’ unilateral cancellation of seven other pending depositions (one Plaintiffs’ expert, four Sandoz experts, and two corporate representatives). Plaintiffs opted to cancel these depositions, even though the batch records are not relevant to these witnesses and all could have been completed before the close of discovery. For these reasons, Sandoz respectfully submits this Court should deny the Motion, and 2 In addition to packaging batch records, several Standard Operating Procedure and Quality Assurance documents were also re-produced to Plaintiffs’ counsel on February 22, 2019 and February 28, 2019, even though these documents had also previously been produced in 2016 in Rusk. Because Plaintiffs’ argument in the Motion is directed to the batch records and their request for additional time for their experts to review those documents, Sandoz has not addressed herein the remaining small set of documents except to state they, too, are not “newly” produced. Case 2:16-cv-02362-ER Document 113 Filed 03/14/19 Page 7 of 20 - 4 - instead grant a limited continuance until May 1, 2019 to complete only previously-requested depositions and discovery, while barring Plaintiffs from using the continuance as a platform to obtain new or reopened discovery. Sandoz’ accompanying proposed order more fully details the proposed continuance and its limits, which will allow the parties to finally complete discovery. II. PROCEDURAL HISTORY Until March 1, 2019, the parties were hard at work trying to complete discovery on schedule, and had worked cooperatively towards that goal. Yet, as set forth in a March 8, 2019 letter from Sandoz’ counsel Sara K. Thompson to Plaintiffs’ counsel, Plaintiffs’ cooperation began to unravel in early March, culminating in the March 5, 2019 unilateral cancellation (over Sandoz’ objections) of three Rule 30(b)(6) depositions and all pending expert depositions. See March 8, 2019 letter and exhibits, attached to Thompson Decl. as Exhibit 2. That letter followed correspondence on February 22, 2019 and February 28, 2019 in which Sandoz’ counsel responded to questions from Plaintiffs’ counsel regarding certain packaging batch records in which Sandoz outlined the previous production of and references to such documents, while also re-producing the documents. See February 22, 2019 letter, attached to Thompson Decl. as Exhibit 3 and February 28, 2019 letter attached to Thompson Decl. as Exhibit 4.3 On March 1, 2019, Plaintiffs’ counsel Justin Williams called Sandoz’ counsel Sara Thompson and raised for the first time the likelihood that Plaintiffs would request a continuance. Thompson Decl. ¶ 4. He did not suggest that all discovery would be cancelled, and in fact suggested the parties should still complete the upcoming 30(b)(6) depositions and then sort out what experts remained to be completed. Thompson Decl. ¶ 5. Ms. Thompson expressed to 3 Sandoz does not wish to burden the Court with unnecessary details of counsel’s correspondence and includes the following account only to correct Plaintiffs’ repeated assertions that Sandoz either withheld the production of relevant documents from Plaintiffs or otherwise delayed discovery. (See, e.g., Motion, Dkt. No. 109 at 5) (“Defendant’s delay in providing adequate deposition dates for their corporate 30(b)(6) witnesses has caused added delay.”). Case 2:16-cv-02362-ER Document 113 Filed 03/14/19 Page 8 of 20 - 5 - Williams that Sandoz would likely be primarily concerned about not reopening already completed discovery or receiving new expert opinions at this late date. Thompson Decl. ¶6. On March 5, 2019, Sandoz responded to the proposed continuance by sending a draft Stipulation to Plaintiffs’ counsel that provided Sandoz would not oppose a continuance provided it did not reopen completed discovery or permit new requests for additional discovery, but instead was limited to completing already requested depositions and written discovery. See March 5, 2019 Email to Plaintiffs’ Counsel attaching proposed Stipulation, attached to Thompson Decl. as Exhibit 5. Plaintiffs immediately rejected that proposal and stated they would file their Motion as opposed. March 5, 2019 Email to Sandoz’ Counsel, attached to Thompson Decl. as Exhibit 6. Plaintiffs nevertheless waited until the evening of March 7, 2019 to file the Motion, and then amended and supplemented it March 8, 2019. On March 8, 2019, Plaintiff’s counsel contacted Sandoz’ counsel about Plaintiffs’ plan to request an expedited hearing in a filing that same day. Because Sandoz wanted adequate time in which to respond to the Motion, it did not agree to the request for an expedited hearing. Following the filing of the Motion for Expedited Hearing, on March 11, 2019, this Court stayed all deadlines in this case, set a March 13, 2014 deadline for Sandoz’ response to the Motion, and set a March 18, 2019 hearing. A. Sandoz Diligently Worked to Provide 30(b)(6) Deposition Dates After Plaintiffs Provided Their List of Topics and Negotiated a Narrowed Scope. Plaintiffs first informed Sandoz of their intent to seek corporate representative testimony of Sandoz in a July 2018 call between counsel. Because Rule 30(b)(6) requires the noticing party to “describe with reasonable particularity the matters for examination,” Sandoz requested Plaintiffs provide a list of proposed deposition topics. Despite numerous follow-up requests, Plaintiffs did not send Sandoz any proposed topics until December 7, 2018. (See Thompson Decl. Exh. 2 at 2). At that time, Plaintiffs invited Sandoz to meet and confer on the 37 topics Case 2:16-cv-02362-ER Document 113 Filed 03/14/19 Page 9 of 20 - 6 - listed in their draft notice. By letter dated December 28, 2018 (Thompson Decl., Exh. 2(a)), Sandoz explained at length why many of the topics were objectionable and outside the bounds of discovery in this case, including because (1) many were directed to off-label promotion claims that the Court dismissed from this litigation with prejudice and (2) many of the topics were directed to a time period that far exceeded the relevant dates of use. Several more weeks passed, during which time Mr. Williams was unavailable due to a death in the family. Plaintiffs provided a revised draft notice on January 18, 2019, but rather than narrowing the list of topics, Plaintiffs had instead chosen to add yet more topics. Sandoz sent another letter, explaining why the revised notice was also objectionable, for most of the same reasons given in December. (Thompson Decl., Exh. 2(b)). In response, on January 25, 2019, Plaintiffs sent a further revised notice, which contained many errors that were not corrected until after Sandoz pointed them out via email, in a February 5, 2019 fourth draft notice. To move the process forward and select appropriate witnesses, on February 5, 2019, Sandoz sent another letter (Thompson Decl., Exh. 2(c)) setting forth its proposal for three deponents to cover certain aspects of 22 of the 30 topics in the fourth draft notice. Plaintiffs did not accept Sandoz’ proposal and continued to insist on including highly objectionable topics for these witnesses, but because they were close to a final agreement, Sandoz began working with the anticipated deponents to identify available dates in their very busy schedules, with considerable difficulty. Over the next two weeks, the parties proceeded with depositions in this matter around the country, including a treating physician and two expert witnesses. At an expert deposition on February 18, 2019, counsel for Sandoz agreed to provide dates for the previously proposed Rule 30(b)(6) deponents by the end of that week. As promised, on February 22, 2019 (in an email Case 2:16-cv-02362-ER Document 113 Filed 03/14/19 Page 10 of 20 - 7 - attached as Thompson Decl., Exh. 2(d)),4 Sandoz offered dates for the three Rule 30(b)(6) depositions before the March 14, 2019 discovery cut-off. (Fourth Scheduling Order, Dkt. No. 101, ¶ 1). Plaintiffs neither accepted those dates nor notified Sandoz that they were unacceptable. In late February, counsel remained in close contact regarding scheduling issues. Sandoz provided further information about its witnesses’ availability, and on March 1, 2019, Plaintiffs’ counsel expressed a desire to complete the Rule 30(b)(6) depositions by March 14, 2019, even though he intended to seek a continuance of the discovery deadline to allow for completion of the remaining expert depositions. (Thompson Decl., Exh. 2 at p. 3). Counsel for Sandoz booked a hotel conference room for one such corporate representative and secured a conference room at a nearby law firm for another such deposition, with the expectations the corporate representatives would be deposed on March 8, 12, and 14, 2019. On March 5, 2019, Sandoz communicated the final locations and start times for the corporate representative depositions to Plaintiffs’ counsel via email, and requested a final Notice of Deposition to provide to the witnesses. (See March 5, 2019 Email from Counsel for Sandoz, at 3, attached as Thompson Decl., Exh. 2(d)). In response, counsel for Plaintiffs unilaterally cancelled the Rule 30(b)(6) depositions without any consistent explanation. At first, counsel asserted the Rule 30(b)(6) depositions should not go forward because they conflicted with previously-set expert depositions, even though both sides have enough attorneys of record to cover multiple depositions on the same day. Later that day, however, Plaintiffs’ counsel cancelled all depositions, including the expert depositions, negating any potential conflict. (Thompson Decl., Exh. 2(d) at 2). Plaintiffs’ counsel acknowledged that Sandoz had provided dates for all three deponents on February 22, 2019, yet continued to complain they were 4 Exhibit 2(d) to the Thompson Declaration is a long email chain between counsel. The February 22, 2019 email from counsel for Sandoz is found at p. 4. Case 2:16-cv-02362-ER Document 113 Filed 03/14/19 Page 11 of 20 - 8 - provided “too late,” but also indicated the depositions were being cancelled until after this Court heard argument on the Motion, thus revealing the real motivation for the unilateral cancellation. The history of correspondence between the parties reveals that, in fact, it was Plaintiffs who delayed providing the topics for the corporate representative depositions for nearly five months, and then served a 37-topic notice of deposition just three weeks before what was at that time a January 5, 2019 close of discovery. It also reveals that Sandoz communicated often and thoroughly regarding a) its reasonable objections to the topics and a request to meet and confer about them, b) a detailed proposal of topics on which it would produce three corporate representatives for deposition, when Plaintiffs’ revisions to the draft notice were not alleviating Sandoz’ legitimate objections, and c) dates and locations for the three depositions on February 22, 2019 and at several points thereafter. Plaintiffs’ suggestion in their Motion that Sandoz unreasonably delayed in scheduling these 30(b)(6) depositions is unsupported, likely because it is easily proven to be false in the actual communications between the parties. Sandoz’ efforts to schedule these depositions and its offer to hold those depositions prior to the current close of discovery, even after Plaintiffs opted to move for a continuance, do not in any way justify the lengthy extension of discovery and other deadlines that Plaintiffs seek in the Motion. B. Sandoz’ Re-Production of Previously-Produced Packaging Batch Records Does Not Justify a Lengthy Extension or the Re-Opening of Discovery. Plaintiffs’ primary excuse for unilaterally cancelling all depositions and moving for a lengthy continuance is their allegation that Sandoz recently produced “thousands of pages” of additional documents. First and foremost, this assertion is false. Sandoz previously produced the documents Plaintiffs complain they just recently received to Plaintiffs’ lead counsel Justin Williams and Kirk Wood in September 2016, on both a disc and via secure file transfer. See Production Letters From Rusk, attached to Thompson Decl. as Exhs. 7–10. Sandoz detailed the Case 2:16-cv-02362-ER Document 113 Filed 03/14/19 Page 12 of 20 - 9 - history of its production of these documents in its February 28, 2019 correspondence (See Thompson Decl., Exh. 4). Moreover, the documents Plaintiffs say they just received have been listed in the reports of Sandoz’ FDA and regulatory expert, Dr. Nicholas M. Fleischer, in this matter and the two prior amiodarone lawsuits litigated by these same Plaintiffs’ counsel, Rusk and Priest. In those cases, Dr. Fleischer produced expert reports in 2016 and 2017 and was deposed in 2017. These documents were also cited in the Declaration of Cynthia Pitt, filed in support of Sandoz’ Motion for Summary Judgment in the Rusk case in October 2016, to which Plaintiffs responded in November 2016.5 Plaintiffs’ counsel has had these documents for two and a half years; their claim that these documents were “never disclosed” (Dkt. No. 109 at 4) is simply false. While Plaintiffs may not have realized that they had these documents all along, this is in fact the case. In addition, the documents at issue are just a small portion of the overall document production in this case, which includes packaging batch records for additional time periods that are more directly relevant to the instant case. There is no dispute that those documents were produced to Plaintiffs on August 20, 2018, along with tens of thousands of pages of documents reflecting FDA submissions, FDA correspondence, labeling versions and updates, Medication Guide versions and updates, adverse event reports, Standard Operating Procedures, and other documents that have been produced to Plaintiffs’ counsel in each of the amiodarone cases with the exact same Bates numbers across all cases. Before Plaintiffs unilaterally cancelled all depositions on March 5, Sandoz recognized that Plaintiffs’ counsel was confused, concerned about the history of document production, and may not have realized the documents they had in their possession. Even though the confusion was largely of Plaintiffs’ own making, Sandoz’ counsel attempted to clarify and assist. To 5 Ultimately, Plaintiffs dismissed Rusk prior to a ruling on the Motion for Summary Judgment. Case 2:16-cv-02362-ER Document 113 Filed 03/14/19 Page 13 of 20 - 10 - accommodate Plaintiffs, Sandoz sent duplicate copies of the previously produced documents on February 22, 2019 and again on February 28, 2019, giving counsel more than a week digest the documents before the first scheduled Rule 30(b)(6) deposition was to take place on March 8, 2019. Sandoz also agreed to reschedule the depositions of Plaintiffs’ two remaining experts, Drs. Joshua Sharlin and Daniel Buffington, to allow them to review these documents, even though the packaging batch records do not impact Dr. Buffington’s opinions.6 The documents in question are relevant only to one Rule 30(b)(6) deponent (Sandoz Director of Quality Allen Sicley) and one remaining expert to be deposed, Dr. Joshua Sharlin. They have no bearing on and are not relied upon by Sandoz’ medical experts (Drs. Bottorff and Kanne), Sandoz’ pharmacy expert Dr. Ashworth, Sandoz’ two other Rule 30(b)(6) witnesses, or Plaintiffs’ expert Dr. Buffington. Thus, even if Plaintiffs were correct that the re-production of the batch records required additional time before they could complete certain depositions, that logic does not apply to the vast majority of the depositions they opted to unilaterally cancel. Moreover, these documents do not in any way justify either re-opening previously completed expert depositions or supplementation of expert reports, or reopening of discovery for all purposes. While Sandoz was willing not to oppose extension of the discovery deadline to allow Plaintiffs more time to complete depositions impacted by these documents, Plaintiffs rejected Sandoz’ reasonable effort to keep the extension confined to just those remaining depositions. C. Plaintiffs Repeatedly Failed to Timely Disclose Experts or to Schedule Their Depositions Promptly, Slowing the Completion of Necessary Discovery. Beyond its misleading account of Rule 30(b)(6) scheduling and batch record productions, Plaintiffs’ Motion also omits any discussion of Plaintiffs’ own delays in disclosing experts, providing expert reports, or scheduling expert depositions. It further neglects to mention Sandoz’ 6 Sandoz deposed Dr. Buffington in Priest, and he did not review or have any opinions regarding batch records in that case, nor does he reference them in his report here. Case 2:16-cv-02362-ER Document 113 Filed 03/14/19 Page 14 of 20 - 11 - considerable efforts accommodate these delays while still meeting the Court’s discovery schedule. Plaintiffs allowed the original September 2018 expert disclosure deadline to pass without serving any expert disclosures or reports. Sandoz timely served disclosures and reports, even though Plaintiffs had not yet appeared for deposition. (Dkt. No. 73). Though the Court later moved the expert disclosure and report deadline to November 2, 2018, Plaintiffs again let this deadline pass without serving disclosures or reports, even though Sandoz timely re-served its previous reports on that date. (Dkt. No. 80). Thus, before Plaintiffs made any expert disclosures or served any reports, they had the benefit of Sandoz’ opinions and reports for over two months. Finally, on November 7–8, 2018, Plaintiffs served expert disclosures and reports. (Dkt. No. 82). In response, Sandoz timely disclosed a rebuttal expert witness on December 3, 2018. (Dkt. No. 83). Sandoz also provided supplemental reports for four experts on December 11, 2018, in which those experts responded to points raised in Plaintiffs’ expert reports. (Dkt. No. 84). On December 3, 2018 and again on December 11, 2018, Sandoz requested that Plaintiffs provide dates for their experts’ depositions. Plaintiffs supplied no dates until December 17 and 20, 2018, when they provided availability for four of their six experts. Plaintiffs then failed to timely confirm dates or locations, preventing Sandoz from noticing the depositions. Sandoz finally received dates for all of Plaintiffs’ experts on February 1, 2019. To date, Sandoz has completed the depositions of four of Plaintiffs’ six experts: Dr. Ludmer, Dr. Goldstein, Dr. Ostrove, and Dr. Marx.7 Dr. Sharlin and Dr. Buffington remain to be completed.8 Plaintiffs have 7 As just one example of how Plaintiffs seek to use new or re-opened discovery to shore up their own expert deficiencies, at Dr. Marx’s deposition he disclosed new opinions, bases, and reasons for his opinions that he acknowledged were not previously disclosed. He revealed he had prepared and sent to Plaintiffs’ counsel a draft supplemental report letter setting forth those new opinions, but was instructed by plaintiffs’ counsel not to complete or produce it. This supplemental report was produced for the first time at Dr. Marx’s deposition. See Transcript of Deposition of Myron Marx, M.D. (“Marx Tr.”) (attached to Thompson Decl. as Exhibit 11) at 19-20, 26-28, 31–32, 44–45, and 74–75. Plaintiffs’ counsel also erroneously objected that Dr. Case 2:16-cv-02362-ER Document 113 Filed 03/14/19 Page 15 of 20 - 12 - deposed two of Sandoz’ six experts. Plaintiffs unilaterally cancelled the depositions of two of Sandoz’ medical experts, set for March 7 and March 12. Sandoz had also provided deposition dates before the close of discovery for its other experts, even though their opinions are responsive to Plaintiffs’ two experts still to be deposed, and so they could not be completed until Plaintiffs provide new dates for Dr. Sharlin and Dr. Buffington. While Sandoz previously had declined to bring these delays in completing expert discovery to the Court’s attention and had preferred to try to work collaboratively with Plaintiffs to reschedule and complete all necessary depositions, Plaintiffs’ false assertion that Sandoz has delayed the scheduling or completion of depositions while omitting their own culpable conduct compels Sandoz to correct the record. III. ARGUMENT A. Plaintiffs Must Show Good Cause for a 120 Day Extension, Which They Cannot Do. Rule 16 of the Federal Rules of Civil Procedure makes clear “[a] schedule may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Although Fed. R. Civ. P. 29 allows parties to stipulate to modify certain aspects of the discovery process, it specifically notes “a stipulation extending the time for any form of discovery must have court approval if it would interfere with the time set for completing discovery, for hearing a motion, or for trial.” Fed. R. Civ. P. 29(b). Deadlines are essential in litigation; without them cases languish, Marx had been cross-examined on “scans” and “films” that supposedly “have not been produced.” Sandoz’ counsel responded that the scans had been produced. See Marx Tr. at 185– 87. In a follow-up letter from Sandoz’ counsel to Plaintiffs’ counsel, Sandoz’ counsel confirmed not only were the scans and images produced, but they had been included in the reliance materials Plaintiffs’ counsel sent to Sandoz two days before the deposition. See Letter from Gregory E. Ostfeld to Jay English (March 5, 2019) (“March 5 Letter”) (attached to Thompson Decl. as Exhibit 12) at 2. Sandoz’ counsel asked Plaintiffs to withdraw Dr. Marx’s previously undisclosed opinions and the erroneous objection. See March 5 Letter at 1–2. Plaintiffs’ counsel did not respond, and instead filed the Motion. 8 Plaintiffs also dramatically expanded the opinions of Dr. Sharlin in a supplemental report served just four days before his scheduled deposition, requiring it to be rescheduled. Plaintiffs also had Dr. Goldstein testify to new opinions not contained within and in fact directly contradicting portions of his report, which were revealed for the first time at his deposition. Case 2:16-cv-02362-ER Document 113 Filed 03/14/19 Page 16 of 20 - 13 - and dockets swell. Morgan v. 3M Co., No. 2:10-cv-84925, 2011 WL 7573811, at *2 (E.D. Pa. Dec. 22, 2011) (Robreno, J.) (“Case management orders are the engine that drives disposition on the merits.”) (quoting In re PPA Prod. Liab. Litig., 460 F.3d 1217, 1232 (9th Cir. 2009)). Ultimately, efficient administration of justice requires that the parties voluntarily comply with Court-mandated schedules, and judicial intervention only goes so far. See Capek v. Mendelson, 143 F.R.D. 97, 99–100 (E.D. Pa. 1992) (Robreno, J.) (the “road map will not work if the drivers are unwilling to look at the sign posts. Nor will judicial management and technique alone work sorcery on otherwise intransigent litigants and their counsel.”). Plaintiffs’ Motion is controlled by Rule 29(b). If granted, it would delay the close of discovery, the briefing schedule and hearing on Sandoz’ anticipated summary judgment motion, and trial of this matter. Although Sandoz does not oppose a brief and final extension of time, it seeks a finite end to the discovery period in this case so that the Court may decide meritorious dispositive motions. Sandoz expects to demonstrate, in a Motion for Summary Judgment, that: (i) Plaintiffs’ claims are preempted by federal law; (ii) the undisputed evidence shows Sandoz complied with its obligations under federal law to distribute and/or make available medication guides to distributors, packers, and authorized dispensers; (iii) Plaintiffs’ claims fail under state law because Pennsylvania recognizes the learned intermediary doctrine and imposes no duty upon drug manufacturers to warn the patient directly; (iv) Plaintiffs’ prescribing physicians were well aware of the risk at issue, informed her of these risks, and opted to prescribe amiodarone to her despite these risks; (v) Plaintiffs lack any evidence that Joanne Polt did not actually receive a medication guide and have no evidence of what she would have done had she received one; and (vi) Plaintiffs’ expert witnesses cannot rule out other causes of Joanne Polt’s death and thus cannot meet their burden of proving causation to a reasonable degree of medical probability. Given the number of dispositive issues determinable on undisputed facts and pure legal Case 2:16-cv-02362-ER Document 113 Filed 03/14/19 Page 17 of 20 - 14 - grounds, Sandoz is anxious to present the Court with a Motion for Summary Judgment and, if need be, to proceed to trial. It is not surprising, given the difficulty they have had in identifying any evidence to support their claims, that Plaintiffs would want to postpone summary judgment for four additional months in the hopes of unearthing any new fact or ambiguity they might use to their advantage in opposing summary judgment. But Plaintiffs have failed to show good cause, or any cause, why they should receive such a reprieve under the circumstances presented. B. There Is Not Good Cause for a 120 Day Extension of Deadlines or for Reopening All Discovery or Permitting New Discovery Requests. Even if Plaintiffs had shown good cause for some continuance of discovery, they have certainly fallen short of showing good cause for a 120-day continuance, much less for new or re- opened discovery. As already detailed, two of the rationales offered by Plaintiffs in their Motion for the 120-day continuance—Sandoz’ supposed delay in setting Rule 30(b)(6) depositions and supposed late disclosure of batch records—are misleading or false. See Procedural History §§ A– B. While the unfortunate passing of Mr. Williams’ stepfather certainly is a good reason to accommodate a request for a limited extension of the current discovery deadline, Sandoz has already stated its willingness to accommodate the associated delays with a reasonable and brief continuance just to complete previously-requested discovery. Sandoz only resists Plaintiffs’ demands for a longer than necessary continuance and for new and reopened discovery on any topic, neither of which can be justified under the circumstances of this case. For each of these reasons, though Sandoz does not oppose a short extension of time to complete the remaining depositions and to put this case on track for disposition on the merits, it respectfully submits this should be the last extension allowed, should be limited in time, and should be constrained to completing existing discovery with no new or reopened discovery. Moreover, Sandoz believes any further requests for continuance should be denied. Sandoz has Case 2:16-cv-02362-ER Document 113 Filed 03/14/19 Page 18 of 20 - 15 - submitted herewith as a proposed order the terms of such an extension that it previously proposed to Plaintiffs, and which Plaintiffs rejected. Sandoz submits its proposal is a reasonable compromise that will finally allow the parties to complete remaining discovery in this case. IV. CONCLUSION Sandoz requests that this Court deny Plaintiffs’ Motion, and instead grant Sandoz’ proposed new scheduling order providing a limited extension to complete remaining discovery. Dated: March 14, 2019 Respectfully submitted, GREENBERG TRAURIG, LLP /s/ Sara K. Thompson Gregory T. Sturges 1717 Arch St., Suite 400 Philadelphia, PA 19103 (215) 988-7820 sturgesg@gtlaw.com Sara K. Thompson (admitted pro hac vice) Lori G. Cohen (admitted pro hac vice) 3333 Piedmont Road NE, Suite 2500 Atlanta, Georgia 30305 (678) 553-2100 thompsons@gtlaw.com cohenl@gtlaw.com Attorneys for Defendant Sandoz Inc. Case 2:16-cv-02362-ER Document 113 Filed 03/14/19 Page 19 of 20 - 16 - IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CAROLINE POLT AND MONICA POLT, Individually and as Co-Executors of the Estate of JOANNE POLT, deceased, Plaintiffs, vs. SANDOZ INC., Defendant. Civil Action No.: 2:16-cv-02362 Hon. Eduardo Robreno CERTIFICATE OF SERVICE I certify that on March 14, 2019, a copy of the foregoing Defendant Sandoz Inc.’s Response in Opposition to Plaintiffs’ Motion for Continuance and all attached exhibits was filed electronically and served on all counsel of record via the Court’s ECF System and email. /s/Gregory T. Sturges Gregory T. Sturges Case 2:16-cv-02362-ER Document 113 Filed 03/14/19 Page 20 of 20
