0001 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS 2 3 4 IN RE: ) ) CA No. 04-10981-PBS 5 NEURONTIN MARKETING, SALES PRACTICES, ) MDL No. 1629 AND PRODUCTS LIABILITY LITIGATION ) Pages 1 - 29 6 ---------------------------------------) This document relates to: ) 7 EGILMAN V. PFIZER, et al, 07-11426-PBS ) 8 9 10 JURY TRIAL - DAY THREE 11 BEFORE THE HONORABLE PATTI B. SARIS UNITED STATES DISTRICT JUDGE 12 13 14 15 United States District Court 16 1 Courthouse Way, Courtroom 19 Boston, Massachusetts 17 July 29, 2009, 8:50 a.m. 18 19 20 21 22 23 LEE A. MARZILLI OFFICIAL COURT REPORTER 24 United States District Court 1 Courthouse Way, Room 7200 25 Boston, MA 02210 (617)345-6787 0002 1 A P P E A R A N C E S: 2 FOR THE PLAINTIFFS: 3 W. MARK LANIER, ESQ. DARA HEGAR, ESQ. 4 ROBERT LEONE, ESQ. Lanier Law Office 5 6810 FM 1960 Road W Houston, TX 77069 6 ANDREW G. FINKELSTEIN, ESQ. 7 KENNETH B. FROMSON, ESQ. Finkelstein & Partners, LLP 8 436 Robinson Avenue Newburgh, New York 12550 9 JACK W. LONDON, ESQ. 10 Jack W. London & Associates, P.C. 3710 Bee Cave Road, Suite 200 11 Austin, TX 78746 12 FOR THE DEFENDANTS: 13 WILLIAM S. OHLEMEYER, ESQ. 14 Boies, Schiller & Flexner, LLP 333 Main Street 15 Armonk, NY 10504 16 DAVID B. CHAFFIN, ESQ. White and Williams, LLP 17 100 Summer Street, Suite 2707 Boston, MA 02110 18 CHARLES P. GOODELL, JR. 19 RICHARD M. BARNES, ESQ. Goodell, DeVries, Leech & Dann, LLP 20 One South Street, 20th Floor Baltimore, MD 21202 21 MARK S. CHEFFO, ESQ. 22 Skadden, Arps, Slate, Meagher & Flom, LLP Four Times Square 23 New York, NY 10036 24 25 0003 1 P R O C E E D I N G S 2 THE COURT: So it's ten of 9:00. Should we be 3 discussing this at side bar? What do you want to do? 4 MR. LANIER: I think probably we should briefly, 5 if that's okay? 6 THE COURT: Yes. 7 SIDE-BAR CONFERENCE: 8 (Discussion off the record.) 9 THE COURT: Can we just go on the record for one 10 minute. There has been a proposal for a nonsuit, and with 11 no Court blessing or anything, as I understand it. Is that 12 right? My concern is, on the one hand, an estate can 13 dismiss a suit like anything else. On the other hand, I 14 don't think it's within my authority to say that whatever 15 money went into the estate would be given to one child as 16 opposed to the other child, or I don't know that I could say 17 at this point it's a fair settlement. I'd have to think a 18 whole lot more about it because it isn't a settlement; it's 19 essentially a gift from one attorney, as I understand it, 20 into the estate for an amount of money that would be 21 significantly less than if she recovered. On the other 22 hand, as I've said, and everybody here agrees, this is the 23 hardest case for plaintiffs. It's the hardest probably of 24 the thousand. I don't know that because I haven't looked at 25 the thousand, but it's the one that Pfizer has picked of the 0004 1 thousand. And I understand why you'd prefer this than a 2 goose egg, but I can't say I approve it. 3 MR. LANIER: Your Honor, from that perspective, 4 things have changed since we were last in front of you. At 5 the conclusion of court yesterday, after we had had a 6 side-bar discussion of this, I was approached by a friend of 7 the family, who doesn't know the family closely but wishes 8 to remain anonymous. This gentleman came up to me, and he 9 offered to personally fund what he thought we were seeking 10 in this case, or a good bit of it, into an account for this 11 girl, as long as it was held in trust under Dr. Egilman for 12 the care and nurture of the girl. He offered to do that to 13 keep from having to rehash through all of this in a trial. 14 If the case was ultimately going to be dismissed, he thought 15 he could meet some needs of the girl. So we've got the 16 attorneys removed from this. And this was not anybody 17 related to Pfizer. We don't need the Court to bless a 18 settlement. We don't need the Court to direct where the 19 money goes. It will be set up in a way that is -- 20 THE COURT: As long as I don't have to bless it. 21 Now, here's the other question. I mean, we were sitting 22 there looking through case law under the wrongful death 23 action. I mean, I don't know if you all were doing it. I 24 don't know that you can dismiss it unless I have 25 Dr. Egilman's approval. 0005 1 MR. LANIER: And we have him here ready to do 2 that. We agree with you on that point. That was our read 3 of the law as well. 4 THE COURT: Okay, so we may all be on the same 5 page. As I was stewing about it at 3:00 in the morning, 6 walking in, I wasn't sure you could fund it; I wasn't sure I 7 could carve out Ron, Jr. from an estate. I'm not even 8 sure -- I would like him to -- where is Ron, Jr.? 9 MR. LANIER: Ron, Jr. cannot be located right now. 10 He's being kicked out of the home by his father, and he 11 doesn't have his cell phone. We do have his verbal 12 agreement that he wouldn't take any money, but that's all we 13 have from him is his verbal agreement. Ron, Sr. has heard 14 about what's going on today and has signed off on it and 15 agreed and has given his clearance to it as well. 16 THE COURT: Dr. Egilman, could you please come up. 17 I, by the way, looked only at the Globe, the Times 18 and the Wall Street Journal and saw nothing about the case. 19 MR. LANIER: Bloomberg had an article last night 20 that we came across, but other than that -- 21 THE COURT: For some reason, it hasn't been picked 22 up, right? 23 MR. FINKELSTEIN: I don't think so. 24 THE COURT: Doctor, are you the administrator of 25 this estate? 0006 1 DR. EGILMAN: I am. 2 THE COURT: Have you heard what the proposal is, 3 just to simply nonsuit this case? 4 DR. EGILMAN: Yes. 5 THE COURT: Do you view yourself as a 6 representative of Ron, Jr. as well as of the little girl? 7 DR. EGILMAN: Yes. 8 THE COURT: So what do we do about that? 9 DR. EGILMAN: Well, based on my assessment of the 10 case and the value of the case and the potential expenses of 11 the case, it's unlikely that there will be a recovery to the 12 estate if we proceed. If we proceed, the amount of money 13 that will go to the girl will go away. 14 THE COURT: Why? 15 DR. EGILMAN: Well, because I don't think the case 16 will win. 17 THE COURT: All right, all right. 18 DR. EGILMAN: Okay? So from the estate 19 perspective, my options are to take $50,000 that go to 20 Regina or get nothing and be at risk for expenses. The 21 estate has no assets to cover expenses. So from my 22 perspective, it's the best thing for the estate and the best 23 thing for both parties that I'm responsible for. 24 THE COURT: Okay. Now, have you ever done this 25 before? 0007 1 DR. EGILMAN: Been an administrator of an estate? 2 THE COURT: Of a wrongful death estate? 3 DR. EGILMAN: No. 4 THE COURT: I understand that I can't approve 5 this. Essentially you live at the mercy of the Probate 6 Court. 7 DR. EGILMAN: Yes. 8 THE COURT: And I plan to take no action 9 whatsoever. If she were to win, of course, she would have 10 substantially more, putting aside punitives. The issue is, 11 as we've all recognized now since we all started focusing on 12 the facts of this case, it's a tough case to win. So that's 13 something you need to tell the probate judge. I can't bless 14 that. Are you prepared to do that? 15 DR. EGILMAN: Sure. 16 THE COURT: So essentially what's in it for the 17 estate, in your view, is -- can I just play it out? 18 DR. EGILMAN: You may. 19 THE COURT: My guess is, she has nothing. My 20 guess is, she has no money. 21 DR. EGILMAN: Correct. 22 THE COURT: So essentially, even if Pfizer could 23 collect costs from the estate, there's nothing there. So 24 the real issue here is whether you use an extreme amount of 25 resources with a, you know, disputed issue. I mean, I told 0008 1 my law clerks that they were outstanding openings, and they 2 were lucky to have witnessed both of them. But essentially 3 as I hear you say, it's not worth going through it for a 4 likely recovery of zero, but there's not a real likelihood 5 that there's any estate, is there, that I know of? 6 DR. EGILMAN: No. 7 THE COURT: I mean, she doesn't have any trust 8 fund sitting somewhere, does she, that goes into this 9 estate? 10 DR. EGILMAN: No. 11 THE COURT: So -- 12 DR. EGILMAN: There's the clothes off her back. 13 THE COURT: Huh? 14 DR. EGILMAN: There's the clothes off her back. 15 THE COURT: There's the clothes off her back, so 16 as a practical matter, Pfizer couldn't collect from this 17 estate. 18 DR. EGILMAN: I don't think he'd look good in the 19 dress. 20 THE COURT: That's right, so -- I just want to 21 make sure everybody's on the table with what's going on 22 here. 23 DR. EGILMAN: I wouldn't put it past him, but I 24 don't think it's his color. 25 THE COURT: And maybe that's why they're waiving 0009 1 because, as a practical matter, they would never collect 2 against. From my point of view, it would be a huge amount 3 of resources to pour into it. I would have the other 4 benefit of just getting a jury read on some of the other 5 issues, but I think that you're right to focus on the 6 interest of the parties rather than that. And I will make a 7 commitment to try and move the other case as quickly as 8 possible, both to Tennessee and the one here, because I do 9 think we need to try a few of these cases. You know, I've 10 got to get a read on it from some of these juries. And I 11 don't know anything about the other case, zero, really 12 nothing. Was that the lead case, the other one? 13 MR. FINKELSTEIN: Smith? 14 THE COURT: The reason I have it? 15 MR. FINKELSTEIN: Shearer? 16 THE COURT: Shearer? 17 MR. FINKELSTEIN: You had asked for all 18 Massachusetts cases, and that was one of them. 19 THE COURT: What brought them to me, do you 20 remember, from the MDL? 21 MR. FINKELSTEIN: No, they were filed in 22 Massachusetts. 23 THE COURT: They were all -- 24 MR. CHEFFO: Shearer is a D. Mass. case, so you 25 don't have to send it back anywhere. 0010 1 THE COURT: No, no, I understand. I'm wondering 2 why the Multidistrict Litigation Panel sent it to me. Is it 3 because it was related to my Neurontin case back in 1995? 4 MR. FINKELSTEIN: Judge, I appeared at that 5 hearing. You did not request it. All counsel -- Pfizer had 6 counsel and I think requested it in Puerto Rico or 7 Philadelphia, another counsel, Puerto Rico. Two counsels 8 requested here because you had familiarity with it, and then 9 they just issued a decision and gave it to you. 10 MR. CHEFFO: It's kind of like that little ball 11 sometimes, you know, they have a -- 12 THE COURT: All right, so anyway. All right, so I 13 think the jury should be here any minute now. There's a 14 third matter while I've got you here that I -- 15 MR. CHEFFO: Could we just talk about the -- 16 THE COURT: Do you have a yellow script? 17 MR. CHEFFO: I do. On the point, we've had 18 some -- I think we're in general agreement. There may be -- 19 we're going to work together. But with respect to Shearer 20 and Smith, to your Honor's point from yesterday, we've 21 talked more, Mr. Lanier and I, and we've agreed that the 22 first case should be before the Court, which would be the 23 Shearer case. Right now, the schedule is very tight. I've 24 asked for 60 days. He's agreed to 30 days because all 25 discovery -- 0011 1 THE COURT: What are we talking about now? 2 MR. CHEFFO: The Shearer -- 3 THE COURT: I know, but have you done individual 4 discovery on it yet? 5 MR. CHEFFO: No. We just got the order on 6 July 24, and it says basically that all discovery needs to 7 be done by September 30, which is very, very tight. 8 THE COURT: Absolutely, yes, but I think that the 9 hope was that it wouldn't be starting from scratch, right? 10 MR. CHEFFO: Essentially, I mean, we have a few 11 depositions. We're not asking for months and months. We're 12 basically saying 30 days and -- 13 THE COURT: What's that situation? 14 MR. FINKELSTEIN: It's a completed suicide. 15 THE COURT: And? It's just a random case? It 16 doesn't favor one side or the other? 17 MR. CHEFFO: Nobody picked it. It's a random 18 pick. And what we're proposing is that, of course, that 19 should be the first case you hang onto, the Smith case. You 20 try the Shearer case, and then -- 21 THE COURT: As a practical matter, that's going to 22 happen anyway because I still need to write up 23 Maris-Kruszewski, because that will be common across the 24 cases, before I send everything off. I was actually hoping 25 to hear them first, but that won't happen. So do you agree 0012 1 with that? What I'll do is, I'll send Smith as soon as I'm 2 done with the opinion, which will probably be by the end of 3 the summer, and I'll leave it up to the Tennessee case. But 4 I will hold onto Shearer, and I will try it as soon as 5 possible. That's what I will do. I can't schedule the -- 6 MR. CHEFFO: Can we at least get the 30 days so we 7 can all work on the scheduling? 8 THE COURT: Yes. 9 MR. CHEFFO: Great. 10 THE COURT: But let me just, there's one other 11 issue. Is Dr. Franklin here? 12 MR. FINKELSTEIN: Yes. 13 MR. CHEFFO: Yes. He's in the back with Ken 14 Fromson. 15 THE COURT: Let me just tell you what he reported 16 to Mr. Alba. Whatever that guy, whoever he was and whatever 17 he said, I think Dr. Franklin is terrified, and, more 18 importantly, I think his daughter is terrified, and we have 19 a thousand more cases. I can't imagine Dr. Franklin is 20 going to travel around the country testifying in all of 21 them, but maybe he will in a few of the lead cases. I just 22 don't know. 23 I think we need to have a stay-away order from him 24 from any private eye. I don't know who the man was, but 25 apparently he said -- what were the words? I can bring him 0013 1 up here and have him say it himself. 2 THE CLERK: You may want to because he was very 3 upset. 4 THE COURT: Yes. Dr. Franklin, come on up here. 5 (Dr. Franklin at side bar.) 6 THE COURT: Hey, how are you? Actually, you look 7 taller when you're sitting up there. 8 (Laughter.) 9 THE COURT: Anyway, let me just say this to you, 10 sir: I'm really taken by what you told Mr. Alba this 11 morning, so why don't you repeat it for the -- 12 DR. FRANKLIN: I recognize that there are two 13 sides to every story and that I need to be fair and 14 balanced. 15 THE COURT: Don't worry about that. Just -- 16 DR. FRANKLIN: But sending a thug to my home to 17 wave at the window at my eight-year-old daughter was 18 unreasonable, guys. It was unreasonable. 19 THE COURT: Well, let me ask you, what were the 20 words? Mr. Alba said they said something about, "We know 21 where your daughter lives"? 22 DR. FRANKLIN: On the telephone, he said, "We know 23 all there is to know about you," and then cited the location 24 of my daughter 200 miles away at college. How the hell am I 25 supposed to remain unbiased when you do that? It feels like 0014 1 a threat. It feels like a threat. Look, I know that you 2 guys didn't tell this person to do it, but you've got to -- 3 I believe, your Honor, that it was horribly inappropriate, 4 and there was very few other ways of interpreting it other 5 than really scary. 6 THE COURT: Dr. Franklin, this is what I'm going 7 to do. This case, I don't know if you've heard about the 8 resolution of it. It's likely to be dismissed. 9 DR. FRANKLIN: Yes. Yes, I understand. I 10 understand, and I don't want to in any way complicate it. 11 THE COURT: But there are hundreds, maybe a 12 thousand more cases, and you may be called upon to testify 13 again. What would you like me to do at this point? Would 14 you like a -- 15 DR. FRANKLIN: I don't know that there's anything 16 you can do. I would like -- 17 MR. CHEFFO: I can make a representation. I can 18 apologize to the extent -- see, I don't know the facts, your 19 Honor, but profusely, I mean, to the extent that that 20 happened, and I take you at your word. We -- 21 DR. FRANKLIN: This can't happen 1,200 more times. 22 MR. CHEFFO: It's not going to happen. I'll give 23 you my word that that's not going to happen. 24 DR. FRANKLIN: And I'll give you the benefit of 25 the doubt about what happened, and I recognize -- 0015 1 MR. FINKELSTEIN: May I suggest, because I think 2 it's not just Dr. Franklin, it's the rest of his family, and 3 I think it will give him comfort to be able to walk away 4 with this -- 5 THE COURT: I think this is what I'm going to do 6 right now. Until -- I understand there are two sides to 7 every story, and Pfizer probably needs -- 8 DR. FRANKLIN: And you had the right to 9 question -- 10 THE COURT: Has the right to question, I 11 understand that. But until further order of the Court, 12 there should be a stay-away order from any private eye with 13 respect to Dr. Franklin or his family. And you should -- I 14 don't know that you want to give me the names and addresses 15 of your family. Let me just make it that specific. He's 16 been deposed a gazillion times. Isn't that "gazillion" your 17 term? 18 MR. LANIER: Yes, your Honor. It's an appropriate 19 word. 20 THE COURT: And people know what he has to say, 21 and there will be a stay-away order from anybody from Pfizer 22 having to do with Dr. Franklin. 23 And you may want to do your own investigation and 24 put your own version on the record for future -- you know, 25 like, it may come up in Texas or Tennessee, you know, 0016 1 whatever. I mean, this is not the -- but I'm not 2 necessarily saying that there isn't another side to the 3 story. I am saying I see a terrified witness. Something 4 happened. So whether or not he's overreacting or not, I 5 don't know, but he's terrified, and there was a reference to 6 his child. 7 And so why don't we do this: There will be a 8 stay-away order until further order of the Court, and we 9 will inform you of any -- I'm sure you'll want to talk to -- 10 has anyone here talk to the private eye? 11 MR. CHEFFO: Well, we had a conversation last 12 night, and, I mean, there are two sides to the story, but I 13 think we're kind of past that right now. And, as I said, I 14 can't say it any more, I do apologize if there was anything 15 inappropriate. That was never an intent. Certainly we 16 didn't advise that. There will be no more private eyes. 17 The only thing I would ask is, to the extent that he is 18 going to be a witness, we would like a mechanism, if he has 19 a lawyer, a place that we can serve so there is no disputes. 20 THE COURT: Yes, I think Mr. Greene has 21 historically been his lawyer, right? Tom Greene has been 22 here since 1995. I mean, I had this case before any of you 23 existed, so -- I think it's been that long. Isn't it Greene 24 still? I saw him sitting back there. 25 DR. FRANKLIN: Yes. And in this case, I don't 0017 1 understand why Mr. Greene wasn't asked to talk. I had 2 already told him, I told everybody that I will talk to 3 anybody -- 4 THE COURT: Yes, from now on, all communications 5 should be through Mr. Greene. 6 DR. FRANKLIN: I don't understand why a private 7 detective showed up at my home. 8 THE COURT: All right, so there's a stay-away 9 order from you or any member of your family. All 10 communications should flow through counsel. And if Pfizer, 11 because I haven't heard the other side of the story, and if 12 Pfizer should for the record want to put anything in and 13 oppose this and move to vacate it, they can do that. Okay? 14 But right now, I want to respect what you've said to me 15 under oath yesterday and your continuing concern. And I am 16 going to dismiss this case, but there will be another one in 17 January-ish, February. 18 MR. CHEFFO: February or March we're thinking. 19 DR. FRANKLIN: And the only reason why I spoke to 20 you this morning is, I know that this needs to be 21 sustainable, if you would, like, this is going to take a 22 long time for me -- 23 THE COURT: I should probably get the jury, yes. 24 DR. FRANKLIN: All right, thank you. 25 MR. LANIER: Your Honor, if I might add one thing 0018 1 on the record. When you were asking about the cost to the 2 estate of proceeding through this trial, we looked at the 3 economic cost, and I think we failed to understand that 4 there is a value to the children, and to everyone involved 5 in the Susan Bulger case, in not having a negative jury 6 finding after an ordeal that rehashes through the life of 7 Susan Bulger. 8 THE COURT: Bulger. You're in Massachusetts. 9 It's like "cohog." 10 MR. LANIER: It's killing me. But I do think the 11 emotional cost of this trial and the long-term ramifications 12 of a jury finding on the fragile state of the young lady 13 might also be something in play, and so I just add that for 14 the record. 15 THE COURT: Well, I remember when I first read 16 this case, I understood why Pfizer picked it. So I do 17 think, for the record, there was at least a likelihood of a 18 defense verdict. That having been said, you both gave 19 fabulous opening statements. 20 MR. LANIER: You should see me with my slides. 21 (Laughter.) 22 MR. CHEFFO: Hopefully you never will. 23 THE COURT: And you were just wonderful with those 24 openings. So, I mean, you could just say "yes," and then 25 you say "no." It was in play. 0019 1 MR. LANIER: Thank you, Judge. That is 2 appreciated. 3 MR. FINKELSTEIN: I didn't hear it on the record. 4 I just wanted to make sure that all parties are in agreement 5 this is without cost to any party. That's all. 6 THE COURT: Right, right. 7 MR. CHEFFO: And just while we're here, and really 8 this will just take a second, just the restraining order, 9 we'd like to just ask -- I don't think there's any 10 dispute for -- with respect to Terrie Slater and Marie 11 MacDonald. 12 THE COURT: That should stay in play too, and if 13 you could pass that on. He's been a wild card, Mr. Bulger, 14 in this. And the one thing I am concerned about is, as I 15 understand it on the record, no one has been able to get in 16 touch with the son. 17 MR. CHAFFIN: He was served, your Honor. 18 THE COURT: Maybe. I'm just saying, he doesn't 19 know about the settlement, so that's a problem, but that's 20 your problem. 21 MR. OHLEMEYER: Dismissal, not a settlement. 22 THE COURT: Yes. So I'm not approving it just 23 because I don't know what his status is. 24 (End of side-bar conference.) 25 THE COURT: We're missing a juror. I propose, 0020 1 even though we're missing a juror -- 2 THE CLERK: She called and said she was running 3 like ten minutes late. 4 THE COURT: She's running ten minutes late. Does 5 anyone have a problem with me simply bringing in the 6 remainder of the jury? 7 MR. LANIER: No problem from the plaintiffs' side. 8 MR. CHEFFO: No, your Honor. Do you have a 9 preference, would we be able to poll the jury if they would 10 like to talk to us? 11 THE COURT: That would be just fine with me. 12 Would you all be interested in that? 13 THE CLERK: She's here. 14 MR. LANIER: I think that could be done privately 15 instead of publicly. 16 THE COURT: Not poll them here. Go into the jury 17 room. I'll ask them if they want it. 18 MR. CHEFFO: That's fine. 19 THE COURT: Privately. Is that of interest to you 20 all, everybody? 21 MR. LANIER: Yes, that would be fine. 22 (Jury enters the courtroom.) 23 THE COURT: Good morning to everyone. 24 THE JURY: Good morning. 25 THE COURT: I have a surprise for you. This 0021 1 morning the attorneys informed me that plaintiff decided to 2 dismiss the case. Pfizer didn't settle it and has not paid 3 plaintiff to dismiss it, and that is what I am about to tell 4 you. So you need not sit for three weeks. On the other 5 hand, the attorneys have asked for the opportunity, since 6 you heard those fabulous opening statements yesterday, to 7 talk to you. And I put this in the context that this isn't 8 the only case like this, and so they both -- not both -- all 9 of them could learn from you about your reactions one way or 10 another. And I know you've allocated the morning, at least, 11 to this case. You are not required to stay. You can leave, 12 and you can reject it, you can decide not to. 13 I will come back and thank you personally anyway, 14 but one thought I would like to ask you to do, since this is 15 your last morning of service is, your first bit of 16 deliberations is to decide whether or not you want to talk 17 to the lawyers because there's absolutely no requirement. 18 You can also talk to the press. You can talk to whomever 19 you want about this case now, your family, one another. 20 So why don't you go back. Mr. Alba will ask you 21 whether you want to talk with them. If the answer is "no," 22 I'll come back anyway and thank you personally. 23 THE CLERK: All rise for the jury. 24 (Jury excused.) 25 THE COURT: Do you have any young associates out 0022 1 there who have worked on this case who might enjoy this? I 2 hope you'll come. And is there anyone from your team? 3 MR. LANIER: Dara likes to be called young. 4 (Laughter.) 5 THE COURT: Of course. 6 MR. CHEFFO: Your Honor, we'd be remiss also if we 7 didn't thank the Court, and, frankly, your staff and clerks, 8 for the tremendous amount of paper and orders and things you 9 essentially churned out in a short period of time. We do 10 appreciate that. 11 THE COURT: You're welcome. Thank you, and we'll 12 all be together again. 13 (Discussion off the record.) 14 THE COURT: Okay, come on in. 15 (A recess was taken, 9:17 a.m.) 16 (Resumed, 8:52 a.m.) 17 MR. LANIER: Your Honor, may I take leave of 18 Court? Can I go home? 19 THE COURT: Well, No. 20 MR. LANIER: They're here to handle everything. 21 THE COURT: Yes, but just hold on one second 22 because I just don't -- are you going to be the trial 23 lawyer? 24 MR. LANIER: Yes, ma'am, so I'll stay right here. 25 THE COURT: Yes, all right. It will just take 0023 1 another few minutes. What have we agreed on? 2 MR. FROMSON: Your Honor, we have a proposed 3 scheduling order for the discovery and trial of the Shearer 4 case. I've conferred with Mr. Cheffo, and I would like to 5 recite those proposed dates to you, if you would be kind 6 enough to listen. 7 Working back from a proposed trial date of Monday, 8 March 29, these are the dates: Fact discovery to end on 9 October 30; the plaintiff expert disclosure, 30 days 10 thereafter, that being November 30; defendant's expert 11 disclosure, having 30 days following, that being 12 December 21, or we can work for additional days if we need 13 on that to make it 30 days. Deadline for expert depositions 14 to be completed would be January 11, Monday. A motion for 15 summary judgment would be filed, if at all, by February 2, 16 opposition by February 18, replies by February 22, oral 17 argument on a date to be set by the Court, thereafter 18 leaving the trial date of March 29, which would provide the 19 parties enough time to do their pretrial order, exhibit 20 submissions, and motions in limine, and begin the trial on 21 March 29. 22 THE COURT: The problem that I run into is, if you 23 do it that way, there's no way I'm going to be able to rule 24 on any motions, for starters. I had thought that the 25 discovery would be a lot closer to being completed. 0024 1 MR. FROMSON: The discovery, as I understand it, 2 has been limited to the prescribing physicians and the 3 plaintiffs and the sales reps, if any. Other medical 4 doctors within the practices or peers of the physicians 5 haven't been deposed. Friends, family, or character 6 witnesses have not been deposed, so that there are 7 additional depositions I envision will be done as well as 8 paper discovery. 9 THE COURT: Well, fact discovery I don't have a 10 problem with. I don't have a serious problem with that 11 whole schedule, but it can't be pushed back, and I won't 12 rule on the motions in that short a time period. That's 13 your biggest problem. 14 MR. FINKELSTEIN: We'd offer, if they want to just 15 do away with making motions, we can just speed up the trial 16 date. 17 THE COURT: No, they can't agree with that. 18 MR. FROMSON: I think you made a reference earlier 19 this morning that the motions would be preserved, and I 20 imagine the motions in limine on a general issue would be 21 the same. So therefore I don't know that the Court -- 22 THE COURT: Yes, but I'm not holding up Smith for 23 that. 24 MR. FROMSON: I appreciate that. We would ask 25 that you would not hold up Smith. It should be remanded and 0025 1 go to the Tennessee docket. 2 THE COURT: And all the other cases are going to 3 start being spun out. Is that what you're all aiming to do? 4 MR. FROMSON: "Spun out" meaning remanded, your 5 Honor? 6 THE COURT: As soon as I rule on Maris and 7 Kruszewski. I really have been deferring until I heard from 8 them. 9 MR. CHEFFO: Well, I think we had a fairly -- I 10 think we worked on a proposal with the Magistrate Judge 11 about the cases; in other words, working them up and having 12 them -- I think he's contemplated -- as opposed to just 13 sending all these cases back. Many of the cases haven't 14 been worked up at all. There's been no discovery. 15 THE COURT: Right, so he set a whole schedule for 16 every case, right? 17 MR. FROMSON: He set a schedule for the track 18 cases, not for every case in the MDL. 19 THE COURT: So how many cases are on a discovery 20 track? 21 MR. FROMSON: There's approximately ten to twelve 22 cases, I believe, that made up the discovery track of the 23 Track One cases or pilot cases, if you will, and that has 24 been whittled down to what was before you today, and the 25 Smith case, which is ready for remand. Those are the ones 0026 1 that were trial-ready, and these others are at that halfway 2 stage, that some fact discovery was done, but there's more 3 that needs to be done. 4 THE COURT: Okay. Well, what are you proposing I 5 do with respect to those twelve track cases? 6 MR. FROMSON: My position is, on behalf of 7 plaintiffs, they should be remanded back to their transfer 8 jurisdictions. 9 THE COURT: And then we start having trials around 10 the country? 11 MR. FROMSON: Yes, your Honor. 12 MR. CHEFFO: And I think our position is a little 13 different. I think it makes sense, from what your Honor 14 says, it's a lot of paper, not to have to deal with all the 15 dispositive motions in the individual cases. Our point 16 would be to get them worked up here. That's the proposal I 17 think we made with the Magistrate Judge, to get them worked 18 up at least to the point of being sent back. That's 19 consistent with -- 20 THE COURT: Well, Smith will be sent back right 21 away. 22 MR. CHEFFO: Smith is a separate issue, right. 23 THE COURT: And we'll do Shearer, and then when 24 the track cases are done -- when did you say that was going 25 to be? 0027 1 MR. FROMSON: Well, when you say that they're 2 done, there's no -- I'm not aware of a current schedule 3 other than the one we just worked out for the other 4 remaining Track One cases, unless, and tell me if I'm wrong, 5 unless we're going to use this for the other -- 6 MR. CHEFFO: Frankly, I think the Magistrate 7 Judge, actually, this is under consideration. We actually 8 briefed this and argued this. 9 THE COURT: Oh, I see. It hasn't been ruled on. 10 MR. CHEFFO: I don't think he's issued a ruling 11 with respect to what he -- 12 THE COURT: I just think these cases are getting 13 old, and we needed this bellwether case today, and it didn't 14 happen. I mean, I'm worried about pushing this off so long. 15 I mean, you all need a break. Two months for fact discovery 16 isn't so crazy, nor the expert. I'm just wondering what you 17 say, six months is what it takes. I just don't want every 18 single time I have a case to have it six months from then. 19 So at least the track cases should be ready to go and have 20 me remand them to their various districts. 21 MR. FINKELSTEIN: The track cases are all in the 22 exact same position as Shearer, and really the only 23 distinction is, we're saying send that back to the 24 transferee court. 25 THE COURT: Absolutely. 0028 1 MR. FINKELSTEIN: That's all we want to do, and 2 then enter the same guidelines and then move forward 3 contemporaneously with this. We'll do it with the other 4 cases as well so we can tee up all these cases. 5 MR. CHEFFO: Our position, your Honor, and 6 certainly you can do that, but -- 7 THE COURT: Well, it's before the Magistrate 8 Judge, but my biggest issue is, I haven't issued at least 9 one of the big Daubert hearings. And it's not so big 10 actually, not compared to the biggest one. 11 MR. CHEFFO: You know, the practical matter is, we 12 understand both sides want the cases to move, the Court 13 does. There's a lot of efficiencies about having the 14 discovery, at least as it was done up until the Smith and 15 Bulger case, done here, just because of the way the process 16 works, access to your Honor, to the Magistrate Judge who 17 knows the issues. You know, certainly it's within your 18 Honor's discretion to -- 19 THE COURT: Well, I'll talk to Judge Sorokin about 20 it, but at the very least, the next Massachusetts case will 21 be in March, and the Tennessee case will be as soon as -- 22 I'll have to call the judge down there, but I'm not quite 23 ready to send it there yet. It will happen probably by the 24 end of August. And is all the discovery done in Smith, 25 everything? 0029 1 MR. FINKELSTEIN: Yes. 2 THE COURT: It's trial-ready? 3 MR. FINKELSTEIN: Yes. 4 MR. CHEFFO: I think that's generally correct. I 5 think that's right. 6 THE COURT: Okay. 7 MR. FINKELSTEIN: The same position that Bulger 8 was in. 9 THE COURT: And you're doing the March one? 10 MR. LANIER: Your Honor, I could at that date. 11 I've got spring break plans with the family, which for us 12 falls the second week of March, so if that's the date, then 13 I would like to try the March one. My request was that I 14 get to try the next one in your court. I'm still aiming for 15 redemption on the slides. 16 THE COURT: God knows what they would have said 17 about the slides. We should have shown them. Anyway, all 18 right, have a nice summer. 19 MR. LANIER: Thank you, Judge. 20 MR. CHEFFO: Thank you, your Honor. 21 MR. LANIER: Have a good vacation, your Honor. 22 (Adjourned, 10:00 a.m.) 23 24 25 0030 1 C E R T I F I C A T E 2 3 UNITED STATES DISTRICT COURT ) 4 DISTRICT OF MASSACHUSETTS ) ss. CITY OF BOSTON ) 5 6 7 I, Lee A. Marzilli, Official Federal Court 8 Reporter, do hereby certify that the foregoing transcript, 9 Pages 1 through 29 inclusive, was recorded by me 10 stenographically at the time and place aforesaid in Civil 11 Action No. 04-10981-PBS, In Re: Neurontin Marketing, Sales 12 Practices, and Product Liability Litigation, and thereafter 13 by me reduced to typewriting and is a true and accurate 14 record of the proceedings. 15 In witness whereof I have hereunto set my hand 16 this 30th day of March, 2009. 17 18 19 20 21 /s/ Lee A. Marzilli __________________________________ 22 LEE A. MARZILLI, CRR OFFICIAL FEDERAL COURT REPORTER 23 24 25