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IN THE UNITED STATES DISTRICT COURT
2 FOR THE DISTRICT OF MARYLAND
IN RE: PROTEGEN SLING AND
5 VESICA SYSTEM PRODUCTS
8 MDL-1387/ 01-CV-1726
Wednesday, December 5, 2001
9 Baltimore, Maryland
Before: Honorable Benson Everett Legg, Judge
13 On Behalf of the Plaintiffs:
Ernest Cory, Esquire
14 Todd Harvey, Esquire
C. Anthony Graffeo, Esquire
15 M. Clay Martin, Esquire
Jon Conlin, Esquire
16 Brenda F. Fulmer, Esquire
C. Todd Alley, Esquire
17 Jose L. Estrada, Esquire
18 On Behalf of the Defendant:
Steven Glickstein, Esquire
19 James D. Herschlein, Esquire
Paul L. Weisbecker, Esquire
20 Paula Krahn Merkle, Esquire
23 Mary M. Zajac, RPR
Room 3515, U.S. Courthouse
24 101 West Lombard Street
Baltimore, Maryland 21201
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1 THE CLERK: The matter now pending before this Court
2 is Civil Number MDL 1387, ProteGen Litigation. Seated at the
3 counsel table for the plaintiffs are Ernest Cory, Todd Harvey,
4 Tony Graffeo, Jose Estrada, Todd Alley, Brenda Fulmer, Jon
5 Conlin and Clay Martin.
6 Seated at counsel table for the defendant is Paula
7 Merkle, Paul Weisbecker, Jim Herschlein and Steve Glickstein.
8 This matter comes before the Court for a status
10 THE COURT: Thank you, and good afternoon to all.
11 The first item that I have on my agenda is the update
12 on deposition scheduling issues and other scheduling matters.
13 And why don't I hear first from Mr. Cory on this?
14 MR. CORY: Good afternoon, Judge.
15 THE COURT: Good afternoon.
16 MR. CORY: Unfortunately, this is kind of a draft of
17 an agenda, and so I don't know that it's perfect. But let me go
18 through the deposition schedules.
19 We have worked to try to get the depositions moving.
20 As we sit here today, Your Honor, no depositions have been
21 taken. Things have developed to where the first deposition is
22 scheduled on December the 17th, and it will be a deposition that
23 will probably go several days. I would doubt that any
24 depositions will happen after that, between Christmas and New
1 We have sent the defendants lists of witnesses, of the
2 first 15 that we discussed with the Court earlier, that we're
3 trying to get scheduled in January and February. I'm sure that
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4 they're going to try to get with us to try to get some of the
5 depositions moving.
6 THE COURT: I forget. I don't have the schedule that
7 we worked out last time in front of me. When are all the
8 depositions to be finished?
9 MR. CORY: The Court had asked, I don't think there's
10 an order to that effect yet, which is one of the things I
11 noticed in your letter of the 26th, asked about a scheduling
12 order. We had contemplated the first 15 depositions being done
13 by the end of February and that all discovery be done by
14 September, I believe. I think that's my recollection of how we
15 left things.
16 I think, Your Honor, at this stage, that we won't get
17 the first 15 depositions done by February. And one of the
18 things that may impact on that is Item B on the agenda, and that
19 is a trial in state court in Philadelphia by the name of Lizzy
20 Jackson versus Boston Scientific and a physician.
21 Are you familiar with that case? You know nothing
22 about it at all?
23 THE COURT: I was going to ask what the Jackson trial
25 MR. CORY: There is a case set in state court in
1 Philadelphia by the name of Jackson versus Boston Scientific and
2 her physician, I believe, that is on a status docket for a
3 hearing on January the 7th. It is a case that, based on our
4 previous visit to the state court in Philadelphia, will be tried
5 sometime soon thereafter. The parties are going to try to sit
6 with the Court and see if we can come up with a date in March
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7 for the trial of that case.
8 THE COURT: Now, is that one of your cases?
9 MR. CORY: Not, not by design, Your Honor. It was,
10 I'm not trying to be cute. But what happened was it was a case
11 that was filed by another law firm in Philadelphia and members
12 of the Plaintiffs' Steering Committee decided it would be in the
13 best interest of the litigation not to, to assist that lawyer in
14 the case. And so that's the decision that was made.
15 THE COURT: Not to assist?
16 MR. CORY: No. To assist.
17 THE COURT: To assist.
18 MR. CORY: And it was a case that was initially on the
19 list by the defendants to the case, that they did not want
20 coordination with. So that's how it got to where it is.
21 THE COURT: I think we've decided, didn't you tell me
22 last time that you all didn't think that there would be any
23 collateral estoppel or res judicata effects from an individual
25 MR. CORY: Well, that would be the plaintiffs'
1 position, Your Honor.
2 THE COURT: Unless you win.
3 MR. CORY: Well, then, if we win, Your Honor it will
4 be --
5 THE COURT: Res judicata.
6 MR. CORY: It would set the bar for all other cases.
7 MR. GLICKSTEIN: We take precisely the opposite view.
8 MR. CORY: Unless we get a dollar verdict, Your Honor.
9 But it's our thought, and we're talking today, is that that case
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10 could last several weeks. It's our thought that we might have a
11 discovery moratorium for a period of time prior to that trial so
12 that we could prepare for it.
13 And I don't think that trial, Your Honor, is a case
14 that will decide this national litigation because it is going to
15 trial without the benefit of a lot of discovery. It's going to
16 trial without claims for punitive damages. It's just a case.
17 And they've tried several of them before this one but this is
18 the first one that we've been asked to assist in.
19 THE COURT: So that the Jackson case isn't likely to
20 cause any problems to the MDL?
21 MR. CORY: I guess it depends on who loses it. But I
22 wouldn't think so. I think that after that case, we may
23 reassess. But I think it's our goal, Your Honor, it's the
24 plaintiffs' position that we should begin depositions after we
25 take this biomaterial engineer's depositions next, the week
1 after next, and we begin depositions in full earnest after the
2 new year, and that we take as many depositions as we can in
3 January and February, both for the MDL purpose and for class
4 issues. And we stop where we have to stop, do the Jackson case,
5 and then resume thereafter.
6 THE COURT: So you'd probably stop at the end of
7 February and start back again in the beginning of April?
8 MR. CORY: Or maybe two week -- I guess none of us
9 knows what the Court will do. I will just tell you the last
10 time we were there, the judge asked if we were going to settle
11 the case, and the response was no. And he said, well, can you
12 all be there Monday to try it.
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13 So we really don't know how those, we're learning the
14 Philadelphia court system now.
15 But we would imagine that the case would take several
16 weeks, that it will be late February, first of March, that we'd
17 like to have several weeks prior to that to get ready. So I
18 think there's going to be a three or four, it could be a five to
19 six week hiatus where we stop discovery for that case.
20 I think given that and depending on how the defendants
21 respond to our deposition request, we may be able to get some of
22 the depositions completed by, most of the 15 depositions
23 completed by April. Is that optimistic, Jim?
24 MR. HERSCHLEIN: I think that's optimistic.
25 MR. GLICKSTEIN: Why don't I wait until you're done to
1 address the point?
2 MR. CORY: Okay. With respect to depositions, Your
3 Honor, the plaintiffs, the only thing I can tell you about that
4 is we're willing to do that with the exception of several, I
5 think they've asked to depose some folks that have already been
6 deposed and we would object to that. But other than that, we're
7 willing to work with them on getting plaintiffs' depositions
8 moving forward.
9 THE COURT: Now, you'll have to correct me if I'm
10 wrong because I can't remember the schedule that we worked out.
11 But you were going to do 15 and then decide at the end, after
12 you'd done the 15, how many more you wanted to do.
13 MR. CORY: Right.
14 THE COURT: So I take it that these 15 are the major
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16 MR. CORY: Right.
17 THE COURT: So that you would try to get them out of
18 the way by the end of April.
19 MR. CORY: I would say that we, from the plaintiffs'
20 perspective, Your Honor, we will do everything in our power. I
21 freed up my calendar to do nothing but Boston Scientific
22 January, February, and March. So with the exception of a three
23 day period that I can't do it, there's nothing else going on on
24 my calendar.
25 Mr. Alley's firm from Tampa, who's also on the
1 Plaintiffs' Steering Committee, who's here today, has agreed to
2 assist us. So we're mobilizing so that we can get all this
4 THE COURT: By when?
5 MR. CORY: If they can put the people up, we'll be
6 done by the end of April.
7 THE COURT: Well, what you can do is -- I don't know
8 whether we discussed this mechanism the last time. But I think
9 that the easiest way to do it, when you have a number of
10 attorneys on both sides, you obviously have the person power to
11 do it. You can take all the depositions.
12 You know, if you were ordered to do it, if I said all
13 depositions are going to occur on January the 15th, you could do
14 it because you could find 15 lawyers to do it. So I think the
15 best way to do it is you give them the 15 names. They give you,
16 let's say, 30 dates, days or, depending upon, 30 start dates in
17 the months of January, February, and April. In the interim
18 they've consulted the deponents and their own schedules in
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19 choosing the dates. It might be 45 days or something like that,
20 a certain number of days.
21 You then pick the days out of the ones they give you
22 and those are the days on which the depositions will go forward.
23 And then that way they get the first bite at figuring
24 out what are convenient days for them, but they have to give you
25 multiple days for each deposition, at least two. And then you
1 pick the ultimate date. And then you're off to the races. And
2 that becomes the schedule. And you don't keep going back and
4 And the other thing is that the deposition date isn't
5 a moving target because when you're trying to schedule something
6 else, depositions are always something you can give up because
7 they're time consuming. Once they're on the calendar, they're
8 on the calendar.
9 So that would be my suggestion. And I'm happy to
10 order it if you all want me to. But if you don't, then I won't.
11 MR. CORY: I guess what my suggestion would be, Your
12 Honor, is that I would like an order so that we both feel, we're
13 both obligated to do it. I would like to see if Steve and I
14 can't submit a proposed order for you to sign after we have a
15 chance to meet and confer and figure out a mechanism to do that.
16 THE COURT: The last in that section, the last concept
17 would be that those will be the dates unless there's mutual
18 agreement to change them. So that way if something comes up,
19 you want to change a date, you can. But you always have the
20 option of saying no, that's the date, it's going forward,
21 because that's just the date. So I'm happy to do that.
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22 MR. CORY: Well, we would be willing to work with the
23 defendants in any way possible. I would prefer an order, just
24 so we can get it done.
25 THE COURT: So that's the regimen, then. Fifteen
1 depositions. They know the names. They get to pick. So let's
2 say they get to pick 40 days out of the 90 -- well, you've got
3 Saturdays and Sundays. But they get to pick 40 days. Or at
4 least -- why don't we do it this way? At least two days on
5 which each deposition could take place. They can't be the same
6 two days. Then you get to select. Then that's when the
7 deposition is.
8 So if it's Mr. Jones, the dates would be January the
9 15th and February the 8th. You get to select.
10 And unless there is an agreement to the other, to the
11 contrary, the depositions are all taken where the witness is.
12 So if the witness is in Kalamazoo, that's where the deposition
13 takes place, unless there is an agreement that that witness will
14 be flown to New York or to Washington or to Alabama or some
15 other place.
16 MR. CORY: No one's made, no one's accepted my
17 invitation to come to Birmingham yet, Your Honor.
18 I guess that that works great with the exception that
19 several of these folks are subpoenaed folks and a couple of them
20 are physicians. Those may be the loose ends that we need to tie
21 up through cooperation of the parties.
22 THE COURT: Well, what you can two is, I'm happy, if
23 you've subpoenaed them, the only way they can get out from under
24 the subpoena is either by agreement or by getting a protective
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25 order. And I'd be happy to put in, you can write into the order
1 that, with respect to third parties, that they should, that
2 whoever the doctor is should give you two, three dates in
3 January, February, and April, and you get to select one, and
4 select one. And that's the date that it's going to be.
5 Any more on depositions, then?
6 MR. CORY: I think we're done.
7 MR. GLICKSTEIN: May I just --
8 THE COURT: Yes, sir.
9 MR. GLICKSTEIN: -- address a couple things that Mr.
10 Cory said, just so that the record is clear?
11 First, I think that Mr. Cory indicated that the first
12 deposition was Ms. Jean Goggins. Dr. Jean Goggins is scheduled
13 to take place over several days. It's a little bit of an
14 overstatement. The CMO has court-imposed time limits with
15 respect to deposition. In this case, the parties have agreed
16 that those time limits will be spread over two different days,
17 the 17th and 18th.
18 I am not sure that five to six weeks of the discovery
19 moratorium is feasible. I think we need to go and discuss that
20 more with Mr. Cory. It seems a little bit on the long side to
22 THE COURT: I thought that there was -- there's no
23 agreement on the moratorium itself?
24 MR. GLICKSTEIN: Well, no, I think there is an
25 agreement that during the pendency of the Jackson trial.
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1 THE COURT: You mean when Mr. Cory is in court.
2 MR. GLICKSTEIN: And for some period before, there
3 will be a moratorium of depositions, at least if we're talking
4 about the 15 depositions. I think we have to also consider that
5 Mr. Cory has promised that he is going to have 500 cases before
6 the end of the line. And there may be a need for some
7 plaintiff-specific discovery, which was always on a different
8 track, to which Mr. Cory has assigned a different firm during
9 that period. So I think that's something we need to talk about.
10 I think if we, I think if we suspended discovery of
11 plaintiffs during that period of time, then the schedule would
12 certainly be in jeopardy.
13 With respect to your question on, with respect to your
14 question on res judicata/collateral estoppel, I will say
15 unequivocally that the Supreme Court has said that there is no
16 such thing. For Your Honor's information, Mr. Cory has
17 mentioned that there are two trials. One is a federal trial in
18 East St. Louis, the other is a state court trial in Bakersfield,
19 both resulting in defense verdicts.
20 THE COURT: So let me, just to recap. You're agreed
21 that the deposition or that the first 15 should be finished by
22 the end of April. You'd like to have a shorter moratorium and
23 you'd like to have any depositions you want to take of
24 individual plaintiffs proceed on a separate track because they
25 wouldn't necessarily involve Mr. Cory.
1 MR. GLICKSTEIN: For the first time, this is the first
2 time I've heard five to six weeks. I would like to give it more
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3 thought. I'm not rejecting it out of hand. My first reaction
4 is that it seems a little long. But it's something I need to
5 discuss with the clients.
6 Mr. Herschlein reminds me that I didn't address the
7 question of third party witnesses. To the extent we can, we are
8 getting in touch with third party witnesses who are former
9 employees of Boston Scientific and hope in most cases to be able
10 to have them cooperate with us without the necessity of a
11 subpoena, in terms of deposition dates.
12 I think we are already aware of one or two instances
13 where that might not be possible. If that's not possible, we'll
14 let Mr. Cory know.
15 THE COURT: And then you would have to subpoena them.
16 Well, it probably makes sense, with a third party, to have the
17 mechanism be that you can accept the subpoena on their behalf so
18 that they are actually under subpoena. Because if they're not
19 actually under subpoena, they can always get up and leave if
20 they want to.
21 MR. GLICKSTEIN: Right. Of course. But in those
22 instances, of course, we contact them and make sure that they
23 authorize us to do so.
24 THE COURT: Now, I think I just saw, my recollection,
25 within the last week or two, that the Maryland Court of Appeals
1 has either issued some rule or is contemplating issuing a rule
2 governing the ability of a lawyer to contact a present or former
3 employee of the opposition. There's been a great deal of
4 confusion about it in Maryland. And I think that this rule is
5 designed to cure the confusion. And I can't remember what the
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6 outcome was.
7 But generally speaking, if it's a former employee who
8 is within, you know, the management group, who could bind the
9 company by an admission and who would be seeking and receiving
10 advice from either in-house or outside counsel, it's that sort
11 of thing. But just be aware that there is either an actual or
12 contemplated rule. And I can't remember what the rules are
13 governing the applicability of rules like that in Federal Court.
14 If you need me to tailor some rule, I'll be happy to.
15 But it seems to me that with respect to these 15, at least,
16 they're all going to be contacted by you to see if they want to
17 be represented by you or somebody else.
18 Let me go back to Mr. Cory, then. End of April is
19 fine. It seems to me that the depositions of the individual
20 plaintiffs who usually are going to be, many of whom will be
21 represented by their own attorneys, could proceed on a separate
22 track. I think you'd mentioned last time that you would like to
23 know when those depositions are happening so that defense
24 counsel would let you know, send you a letter, we're going to be
25 taking these depositions on these dates, so that you'll know
1 they're happening but that you don't necessarily need to be
2 there. So they can be separately tracked.
3 Third party witnesses, it looks like that's going to
4 work out. And then we simply have to, you have to agree on the
5 time of the moratorium. If you can't agree how long the
6 moratorium is going to be, then my thought would be that the
7 moratorium would last while you were actually in trial and then
8 the week preceding, which may be four weeks. If you can agree
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9 upon a longer period, that's fine. But if you can't, it's that
10 week and then the weeks that you're actually in trial.
11 MR. CORY: I guess maybe Steve didn't understand me,
12 Your Honor. I guess my contemplation was a two week trial,
13 three week trial, and two or three weeks prior to that. It was
14 the five or six weeks collectively for both, not six weeks prior
15 to trial moratorium.
16 THE COURT: I thought it was talking about a five or
17 six week total. If you all can agree, that's fine. If you
18 can't agree, the week before and the weeks of.
19 MR. CORY: The only other thing, Your Honor, is this,
20 we would have no objection to the defendants moving forward,
21 taking depositions of plaintiffs that are not represented by the
22 lawyers who are members of the PSC, who are preparing for the
23 trial in Philadelphia. And we would work with them in any way
24 possible to contact other lawyers.
25 We would, however, object to, for example, for the two
1 or three weeks preceding the trial and during the trial, getting
2 notice of 30 depositions of our clients, be it myself or other
3 members of the PSC who are working on those cases.
4 THE COURT: Why don't you do this? Just work it out
5 with Mr. Glickstein. There shouldn't be a problem. There are
6 plenty of plaintiffs whose depositions he can take.
7 So I don't think it should be a problem. If there is
8 a problem, you can get back to me.
9 MR. CORY: Thank you, Judge.
10 THE COURT: What about the national court reporting
11 service? I've got that down here on the agenda.
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12 MR. CORY: I guess, basically, we have an arrangement
13 with a national court reporting company to take all the
14 depositions. I don't know that it's really anything else that
15 needs to be said.
16 THE COURT: Good. That's all I need to know.
17 The next item is evidence preservation order.
18 MR. GRAFFEO: Tony Graffeo for the plaintiffs, Your
19 Honor. Just real quickly. As you had instructed, we prepared
20 an evidence preservation order and a proposed order and have
21 forwarded it to the defendant for their review. It's based
22 largely on the form out of The Manual for Complex Litigation.
23 So we're moving forward on that, hope to have something soon.
24 THE COURT: Good. Thank you. Mr. Glickstein, have
25 you had an opportunity to take a look at it?
1 MR. GLICKSTEIN: Very recently. And we certainly, we
2 do have some issues with it. And we're happy to discuss those
3 with the plaintiffs before --
4 THE COURT: Let me ask this. Am I right or wrong in
5 assuming that virtually everything that has to do with the
6 litigation is in the document repository?
7 MR. GLICKSTEIN: Here are the -- yes. But here are,
8 here are the issues and the difficulty I have with the order as
9 drafted. And I want to arrange my thoughts into two areas. One
10 has to do with documents relating to the ProteGen sling itself,
11 and the other is documents relating to other products.
12 With respect to documents relating to other products,
13 we've now had Motions to Compel and Your Honor's rulings. And
14 Your Honor has ordered production of very targeted materials.
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15 And the order as drafted, I think, could be construed as putting
16 a permanent kibosh on document preservation, not only with
17 respect to the documents Your Honor ordered to produce, but
18 anything having to do with any product about which they sought
19 discovery, including documents which Your Honor has ruled that
20 we haven't had to turn over. And that would paralyze the
21 company's business and is impractical.
22 I'm not sure that that's what the plaintiffs really
23 had in mind. That's why I think we need to discuss it.
24 THE COURT: So the way it's drafted, that all
25 documents that relate, essentially, to the document request --
1 MR. GLICKSTEIN: Right.
2 THE COURT: -- with respect to other products must be
4 MR. GLICKSTEIN: That's how I construe it. It may not
5 be their intent. But that's how I construe it.
6 THE COURT: My initial thought about evidence
7 preservation is that through the document requests, the
8 plaintiffs have requested just about everything that anybody can
9 think of. It's hard to think of any categories of documents
10 that you haven't requested. And we've had a very thorough
11 review of the document requests and any objections. And I think
12 that I've been relatively generous in terms of what the
13 plaintiffs can get.
14 So my initial thought would be that if it's a document
15 that has to be turned over, then it's going to be automatically
16 preserved because you have, you're going to get a copy of it.
17 The original should be preserved. But anything that's not
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18 subject to a document request, they can throw out so long as
19 it's in the ordinary -- well, I would think that they get to
20 throw out.
21 There's always the fear in the back of your mind that
22 they're going to throw out something that might be useful. But
23 it's hard to think of what that would be, given the
24 broad-ranging discovery that's taken place.
25 I'm reluctant to go through another hearing on
1 document production in the guise of figuring out what they can
2 throw out and what they can't throw out. I can see, just like a
3 document request, categories of documents, going through the
4 whole thing. We've already done it once and my inclination
5 would be if they have to produce it, they can't throw out the
6 original. If they didn't have to produce it, they can throw it
8 So that's my general thought. Nobody's asked me to
9 rule yet. I'll rule the next time we get together. But that
10 seems to me to be a practical way to do it.
11 MR. GLICKSTEIN: With respect to the ProteGen, Your
12 Honor is correct. We've done a sweep. And everything that I
13 can think of should be there. The only two potential issues
14 are, one, the time limitation. We've now been in litigation
15 with Mr. Cory for nearly two years. We did our sweep on October
16 15th, 1999.
17 And basically there's been, I think I just got a
18 recent request from Mr. Cory to update the medical device report
19 files. But obviously, there has to be a cutoff point in time
20 that dates back to the first request. And I want to make sure
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21 that that's incorporated into the order.
22 Similarly, through two years of litigation, we've had
23 a geographic scope of search. For example, we have not searched
24 international, you know, overseas locations. There's been no
25 issues raised with respect to the geographic scope. I just want
1 to make sure that the order is parallel to what has been the
2 consensus in terms of the document production.
3 THE COURT: So you want an end date.
4 MR. GLICKSTEIN: Correct.
5 THE COURT: That you can stop looking at some point.
6 MR. GLICKSTEIN: Well, I think the end date has been
7 by consensus. In fact, we have disclosed from very early on
8 that the documents were compiled as of October, I think, 15th.
9 Whether it's October 1st or October 31st, I can't tell you. But
10 sometime around October, 1999, which was nine months subsequent
11 to the recall of the product. That has never been challenged.
12 That was not the subject of a Motion to Compel. I can't imagine
13 that we would start reopening that issue.
14 Again, I think Mr. Cory has made one recent request to
15 update the MDR production. I would be willing to consider that
16 on a one time only basis. At some point there has to be a
17 cutoff date in terms of production.
18 Similarly, with respect to geographic scope. Those
19 have been in place since the earliest time. There have been no
20 Motions to Compel. I can't imagine we're going to reopen those
21 issues at this point.
22 THE COURT: Good. Thank you. Mr. Cory.
23 MR. CORY: Your Honor, I'll address them one at a
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25 Mr. Glickstein has represented to the Court that each
1 time a complaint is lodged and each time there's a complaint
2 file opened and that there's, it's investigated and if
3 necessary, and a medical device report is submitted to the FDA.
4 As a matter of fact, I think he's briefed the Court on
5 confidentiality of these medical device reports.
6 Mr. Glickstein created a document depository, or his
7 clients did, in 1999. At the time they did, they gave us the
8 complaint file that existed at that time. It has been two years
9 plus. There have been lots of complaints and lots of lawsuits.
10 Mr. Glickstein says every time a lawsuit is filed, a complaint
11 is prepared and something is submitted to the FDA.
12 Our discovery with respect to stuff that occurs
13 tomorrow is ongoing. I'm not, it's with respect to complaints
14 and MDR's, and that as new stuff is developed by them, we would
15 expect that every single complaint and every single medical
16 device report that is submitted in redacted form would be
17 forwarded to us in a periodic fashion. And I guess that that's
18 the normal scope of the way document discovery is done in
19 Alabama, anyway.
20 THE COURT: Well, can you tell me, if you look at the
21 document requests that you've filed, can you tell them which
22 categories the documents, in your view, should be continuing and
23 which shouldn't? Because it seems to me that if the issue is
24 these medical device reports, if those are complaints as they
25 occur, then that seems to me something that should be revealed
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 20 of 81
1 on an ongoing basis or a periodic basis.
2 But for a lot of it, all your files about how the
3 product was developed, it seems to me that for most of the
4 categories, there's a finite date when the response was made and
5 the sweep was made, and there's really nothing to update.
6 MR. CORY: And we absolutely agree with you, Your
7 Honor. We're not going to go back and ask them to give us stuff
8 that has already been asked and produced. What we're saying is
9 stuff that is received by them after the production of documents
10 or the creation of the data base of the document depository.
11 And we will look at these document requests, sit down and send
12 them a letter that says, we think questions one, two, five, and
13 ten, whatever, we think those are of a continuing nature.
14 And I will try to get that to them in the next week.
15 But Your Honor --
16 THE COURT: Before we get to that. Just, it would
17 seem to me that what you ought to do, it ought to say that
18 unless new documents, if a new document comes to light some
19 place that's responsive to one of the old categories, they would
20 have to turn it over. So what we're really addressing is the
21 obligation to keep on looking. So that it would say that, you
22 know, if something comes to light that's within a category, you
23 have to produce it. With respect to categories, you know, you
24 enumerate them, there is no obligation to conduct new reviews
25 because they've all been produced. And that here is a residual
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 21 of 81
1 number of categories that they have to provide, produce on an
2 ongoing basis.
3 MR. CORY: We have no objection to providing them that
4 kind of information, Your Honor.
5 There's one other issue, though, that is out there and
6 nobody can speculate. At this stage of the game, Your Honor, I
7 have no way to speculate where it's going to go. Let me explain
8 to you how, what I'm talking about.
9 Boston Scientific on their own decided to create a
10 document depository. Instead of -- in any event, they did it by
11 individuals who had information that they thought was relevant
12 to the ProteGen sling. And they went through all their, my
13 understanding is they went through the individual files of these
14 employees or third parties and they put together documents. And
15 they're identified by Hugh Tripp's files, Arthur Friedman's
16 files. And that's how they're identified. And they're Bates
17 stamped by employee initials plus numbers.
18 Now, we are about to depose, as you've been told,
19 four, five former employees. A lot of those former employees
20 did not, half, worked on the sling, worked on this ProteGen
21 sling product. One them was the inventor. But in the document
22 depository, there is not a single piece of paper responsive to
23 that individual in his ordinary business files. So evidently,
24 all of his documents relating to the ProteGen sling were not
25 collected at Boston Scientific. I don't know if there are
1 documents. I can only know that when I take the man's
3 We have asked, for example, with respect to Dr.
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 22 of 81
4 Goggins, who's being deposed --
5 THE COURT: What's his name?
6 MR. CORY: It's Jean Goggins. I think it's a female.
7 It's a female.
8 THE COURT: She's going to be the doctor --
9 MR. CORY: On the 17th.
10 THE COURT: On the 17th.
11 MR. CORY: We've asked them to identify the documents
12 produced up to now, that were her documents, that she maintained
13 in the ordinary course of business.
14 THE COURT: This is, if I could stop you. There are
15 two issues at work here. Number one is if there are documents
16 that were subject to the document requests that are within the
17 possession of Boston Scientific, they had to produce them
18 whether the person was, the person who wrote them was with the
19 company or not. So if Dr. Goggins wrote a memo or received a
20 memo or wrote a letter or received a letter or did something,
21 and it's in the file, they had to produce it. And I'd be amazed
22 if the defense took the position that they didn't have to
23 produce it.
24 So I'm operating under the assumption that if there's
25 a void with respect to a person, it's because the person took
1 her files with her and that they don't have them. Mr.
2 Glickstein, is that correct?
3 Basically, what Mr. Cory is saying is that with
4 respect to certain people, there aren't any documents and he's
6 MR. GLICKSTEIN: I'm going to answer the question in
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 23 of 81
7 several ways because there are several possibilities.
8 In some instances, it will be that the former employee
9 turned over some of their files to someone else and those files
10 are now contained in that other person's files.
11 In other instances, it is, as is true with every
12 American business in this country, when an employee leaves and
13 there's no litigation pending, many of these employees left
14 before the first ProteGen sling case ever came into existence,
15 people just don't save their files. And in those instances,
16 there isn't going to be a file.
17 In Ms. Goggins -- excuse me -- Dr. Goggins, in Dr.
18 Goggins's case, she did not have a ProteGen sling file. Mr.
19 Cory has just asked me whether she had any other files relating
20 to Hemashield. Hemashield is one of the products where we
21 produced discrete documents.
22 I am advised that there are some archive files related
23 to Dr. Goggins. I don't know what's in them yet. But to the
24 extent that, I do know that they don't relate to ProteGen
25 because we did look at that once upon a time. Once I see what's
1 in them, I will discuss with Mr. Cory whether it's appropriate
2 to produce them. I'm sure that that will be worked out.
3 And he's asked for it, I think, by December 10th. But
4 I think I need until December 11th to get him physically the
6 THE COURT: Well, you can trade him that extra day for
7 a couple of weeks during his trial.
8 MR. GLICKSTEIN: Thank you. But one thing I want to
9 avoid, and we started here by, we started here by simply talking
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 24 of 81
10 about an evidence preservation order. And I didn't intend for
11 that to become an opportunity to engage in sort of another
12 roving round of discovery, which I'm afraid it may have.
13 THE COURT: Well, the general -- if I could just stop
14 you for a minute. We've been through document requests. One of
15 the problems with informal discovery is that it tends to creep
16 along. In the spirit of accommodation, you can produce any
17 documents you want to produce. But in the MDL you only have to
18 produce the documents that are responsive to the document
19 requests that you've either agreed to produce or you've been
20 required to produce.
21 MR. GLICKSTEIN: Okay.
22 THE COURT: That's essentially it. But if you agree,
23 you can do whatever you want. But if you don't agree, you can
24 say, I'm not going to produce them, with no hard feelings.
25 The representation that you're making, just so that
1 the record is clear, is Mr. Cory said, why weren't there more
2 documents with respect to Dr. Goggins? And the answer is that
3 you've produced everything that you're required to produce.
5 MR. GLICKSTEIN: Correct.
6 MR. CORY: Your Honor, I guess one of the reasons for
7 our preservation order is that this week was the first time that
8 we became aware that there are archived files on former
9 employees. We would hate to see a week before someone is about
10 to be deposed, that the archive files are destroyed because
11 they're not in the preservation order. That is kind of where
12 we're headed. Not that we think they would do that. Or by
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 25 of 81
13 inadvertent normal scheduling of destruction of documents, that
14 archive files relative to an individual who's about to be
15 deposed, whether we've asked for it or not, we still could seek
16 leave of court to ask for it if we think it is relevant and
17 there's a good reason to come before you and ask for it.
18 THE COURT: You could always ask leave of court. But
19 it just seems to me that in terms of document preservation, that
20 what I said earlier makes sense. Otherwise, they just never
21 know what they can throw away.
22 MR. CORY: I guess we can streamline it in a way --
23 we'll work on that. But I guess, there's nothing else I can say
24 about that. Are we done on that?
25 THE COURT: Good. Let's move, then, to finance
2 MR. CORY: Yes, Your Honor. If I might have an
3 opportunity to give you a little background.
4 What I've provided to Your Honor is a copy of an order
5 entered by --
6 THE COURT: Looks like by Judge Bechtel.
7 MR. CORY: And it was an order that was designed to
8 protect work product by the PSC and also to create a mechanism
9 for assessment of costs and expenses in cases, and also which
10 you have absolute jurisdiction over with respect to federal
11 court cases, and also a mechanism to insure that the work
12 product for state cases that have agreed to coordinate, that
13 they have access to the work product and also that the time and
14 expense associated with it is protected.
15 And what we are asking the Court to do is to prepare
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 26 of 81
16 an order similar to this one. And we will prepare a draft of
17 it, if you'd like. I've just provided this to Mr. Glickstein
18 and he said he was going to look at it, and we would probably
19 try to sit down together and put together an order.
20 But basically -- I'll let you read it. But let me
21 just --
22 THE COURT: Well, if you just tell me basically what
23 it does. With the MDL cases, it seems to me that, I'm not sure
24 that if, let's say you all do work and you expend money. I'm
25 not sure I can order somebody else to pay part of it, but I can
1 certainly say that they're not entitled to whatever it is that
2 you've produced.
3 MR. CORY: Well, with federal court cases, you can
4 absolutely order them, you can absolutely order them to pay
5 their, you can order a percentage or a withholding of a portion
6 of the settlement to reimburse the common benefit lawyers.
7 THE COURT: But they don't have to pay up front, they
8 pay at the end.
9 MR. CORY: I think it's either way. But we're asking
10 to pay at the end. We were just recently involved in an MDL in
11 California. The day we filed the lawsuit, we were assessed
12 $15,000. It was a nice day for us. We had five cases, so that
13 made it even worse.
14 THE COURT: 15,000 per case?
15 MR. CORY: Per case. But what we're asking for is
16 this. The Court also said in this order that, with respect to
17 every state court case where the defendants, where the
18 plaintiffs have agreed that they want to coordinate, and there
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 27 of 81
19 is an order entered by that judge, that state court judge, that
20 specifically says, you agree to coordinate. And it goes on. It
21 further requires that the lawyers, the parties to agree that if
22 they agree, to be obligated to an assessment.
23 Now, where we are in this litigation, Your Honor, is,
24 is that with the exception of the Jackson case, the case in
25 Texas --
1 THE COURT: Could you say again about the state court
3 MR. CORY: That this order would require every state
4 court case who wants to coordinate, that we would go ask the
5 judge, the state court judge in that state to enter an order
6 that, number one, this case is being coordinated with MDL 1387,
7 and that all discovery is stayed pending the discovery that's
8 generated here; that that lawyer will get the benefit of all
9 this discovery, and that that lawyer agrees on behalf of his
10 client to an assessment.
11 I don't think at this stage of the game that we are in
12 a position to come up with what that assessment is. Most of
13 them are percentages. In the Fen-Phen litigation, it was 9% in
14 the federal court cases and 6% in the state court cases. I
15 don't know that I'm in a position to tell you what the actual
16 time and expense will be, nor do we know how many cases there
17 are out there. I think we're starting to get an understanding.
18 But I mean, we were contacted this week by several lawyers that
19 were getting ready to amend lawsuits and had cases.
20 But we think that we can do it in a way that protects,
21 I'm asking to protect the lawyers of the PSC as well as protect
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 28 of 81
22 the lawyers with the cases, that they're not going to get gouged
23 or that their clients won't get gouged.
24 What this does is it protects everybody. Number one
25 is, is that if defendants decide after we enter this order to
1 settle with somebody else besides, with the case, that the money
2 is paid to an escrow agent, that that number is confidential so
3 that I can't do the math and figure out what they paid them.
4 Okay. That that money sits there until such time that you
5 decide, if we're due, if what we've done is worthy of being
7 And that, lastly, that with respect to the state court
8 cases, there is an understanding as to what they're going to
9 get. There is an understanding that, for example, we have taken
10 all the documents that the defendants have given us and have put
11 them in an objective and subjective data base. We have created
12 time lines. We have created a lot of things that I don't want
13 to tell them about.
14 THE COURT: You put it all together.
15 MR. CORY: And so that --
16 MR. GLICKSTEIN: I'll pay for it.
17 MR. CORY: He'll take a 6% assessment right now. He
18 may not think it's worth it. Who knows? But we would like to
19 be able to know --
20 THE COURT: Depends what twelve people think it's
22 MR. CORY: We would like for the lawyers to know what
23 they're going to get and also for them to know that there would
24 be an assessment.
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 29 of 81
25 Jim, Mr. Herschlein told me that several lawyers who
1 have agreed to coordinate have called us and they're fine with
2 coordination, but they want to know what the percentage is going
3 to be.
4 THE COURT: It's the percentage of the total recovery?
5 MR. CORY: Right. Generally, Your Honor, the way it
6 works is this. And I'm going to speak hypothetically.
7 Let's assume that you agree that the assessment was 6%
8 and 1% was going to be for costs and 5% was going to be for our
9 time. And a lawyer had a case and these guys paid, easy number,
11 MR. HERSCHLEIN: 10,000.
12 MR. CORY: A hundred thousand dollars. You see a
13 little difference in the value of the cases. And the fee was a
14 third, $33,000. A 5% assessment would cost that lawyer $5,000.
15 The plaintiff is not, this clearly says that it doesn't cost the
16 plaintiff the money. It comes out of the lawyer, the plaintiff
17 lawyer who is sitting at home, waiting on me to give him the
18 work product, it comes out of his fee. He pays 5% to an escrow
19 agent who holds that money until you decide how it's going to be
21 For example, in breast implants, after the common
22 benefit lawyers were paid, the remainder was refunded back to
23 the women. There's been a refund, I think one or two, I think.
24 THE COURT: Now, does that take into -- it depends
25 upon, how much you get paid depend upon whether it's 6% of, you
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 30 of 81
1 know, 10,000 cases or 6% of, you know, a hundred thousand cases.
2 Is there some sort of a governor on it?
3 MR. CORY: I think this, Your Honor. I think, I would
4 imagine that in the next, that this litigation is slowing down
5 as far as new cases. I think that there aren't going to be a
6 whole lot of new cases filed and that we probably, within the
7 next 30 to 60 days, will probably get, you know, a gauge of how
8 many lawsuits are out there. Steve said 500. It may be 500.
9 It may be 600.
10 MR. GLICKSTEIN: I was quoting you. I have no idea.
11 MR. CORY: Yeah. I think that there will at least be
12 500 cases, and I think that there won't be a thousand. And I
13 guess it's hard, if we knew that they were going to all settle
14 for a half a million dollars a case, we could come up with a
15 real low percentage. If they're going to settle for $10,000 a
16 case, then we don't, the percentage might be a little different.
17 And I think that we would like to put something in
18 place. We would like to get it back to the lawyers. We would
19 like to get orders in the state court cases. And we'd like to
20 put this issue to bed so that we're comforted that we're going
21 to get paid.
22 The other thing about this is, is this. This protects
23 us from -- and I could tell you right now, there are two
24 inconsistent orders, in the Rezulin litigation and the Fen-Phen
1 In the Rezulin litigation, they're saying that
2 depositions are not work product protected by the PSC. That's
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 31 of 81
3 what Jim just told me. I haven't read it.
4 In the Fen-Phen litigation, they said it is. If I
5 spent 200 hours preparing for a deposition, this protects so
6 that if a lawyer who has not agreed to coordinate, calls the
7 court reporter and says, send me the deposition, that we're
8 notified. And then we can decide whether or not, you know, we
9 have an opportunity to, it gives me an opportunity to object if
10 I want to. And it protects the defendants from doing something
11 that they don't want -- you know, the judge says, give it to
12 them, they're protected as well.
13 We'd like you to review it. I would like to sit down
14 with the defendants and submit to you a proposed order.
15 THE COURT: Well, why don't you do that? It seems to
16 me that what you propose is more than reasonable. I would like
17 to see if it's -- now, in these cases, do you all keep any time
19 MR. CORY: Yes, sir. There's an order that's been
20 previously entered by you that requires us to keep time records
21 of our time and our expenses. We can't stay at the Ritz Carlton
22 and we can't drink martinis and we can't -- well, we can, but we
23 can't do it on the MDL's nickel.
24 THE COURT: It seems it might be too complicated to do
25 it. But it seems to me that it would be better if you could do
1 the -- let me think. If you have, in the normal case, the
2 garden variety is 33 and a third percent of whatever it is. If
3 the settlement of the verdict is a little, then the lawyer takes
4 a bath. If it's large, then the lawyer reaps a reward.
5 So one way of looking at this is that 5 and 6% sound,
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 32 of 81
6 or 6 and 9%, whatever it is, sounds reasonable in light of the
7 number of cases that are filed and you'll probably have some
8 sense for what these cases are worth, based upon past
9 settlements and recoveries.
10 So one way, the neat way to do it and the easy way to
11 do it is just that it's 6%, and I think you said the other
12 figure was 9%.
13 Without any kind of retroactive recalculation, if it
14 turns out that you would be paid some unconscionable amount,
15 there may be in some -- what I'd like you to do is to think
16 about, with defense counsel, this idea of having, if it turned
17 out that the litigation was the goose that laid the golden egg,
18 so to speak, I think it would be embarrassing, certainly be
19 embarrassing to me if I were to read in the paper about how you
20 just retired in the Bahamas on your new yacht from all the money
21 that you've gotten.
22 MR. CORY: That was Fen-Phen, Your Honor.
23 THE COURT: That was Fen-Phen. That if that, it would
24 seem to me if there's some way to pay back at the end of the
25 case, that would be --
1 MR. CORY: What this says, Your Honor, s no way by
2 entering this order does the Court determine that you're going
3 to pay us these percentages; that at some point in time, there
4 will be a full accounting. And let's assume that the escrow
5 agent collects $10 and that, based on our time, expenses that we
6 submitted, we've only spent time and expenses that are worth $8,
7 and you only approved $7. The rest would be refunded back to
8 the plaintiffs.
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 33 of 81
9 THE COURT: So that that's not -- what I've raised as
10 a problem isn't a problem.
11 MR. CORY: No. You're protected. The plaintiffs are
12 protected. And I can assure you that this is not the golden,
13 this is not the yacht case. Maybe an 18 foot runabout
14 somewhere, but not a yacht.
15 THE COURT: Well, we live in a city where the baseball
16 team is own by a plaintiffs' personal injury lawyer, so it's
17 certainly possible.
18 MR. GLICKSTEIN: We look at it more as a rubber
19 dinghy, Your Honor.
20 MR. HERSCHLEIN: Your Honor, Jim Herschlein, just very
21 quickly, for the defendants on this point. Much of what Mr.
22 Cory is suggesting, I understand we're going to work out and try
23 to submit a proposed order. The one item I do want to raise
24 because Mr. Cory raised it, it's quite frankly the definition of
25 "work product." Mr. Cory referred to an order in the Rezulin
1 case entered by Judge Kaplan in the Southern District, I think
2 within the past couple months, maybe a month, basically saying
3 that work product does not include the transcript of the
4 deposition. It includes the outlines and data bases and
5 subjective stuff, but does not include the transcript.
6 And the reason why I think that's important -- and
7 obviously, we're going to talk about this. The reason why
8 that's important is that state court plaintiffs are saying, I
9 want to coordinate. In other words, I'm happy to live with the
10 depositions that are being taken in the MDL, but why should I
11 pay an assessment. I'm going to have my own trial. I'm not
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 34 of 81
12 getting any of their work product. That's the issue that comes
13 up. Looked at a different way --
14 THE COURT: Can't they get -- just out of curiosity, I
15 thought because Mr. Cory was talking about time lines and other
16 things that are work products. So if I signed up, if I were a
17 plaintiffs' lawyer in Michigan and I signed up for the MDL,
18 wouldn't I get a kit that had everything that I needed?
19 MR. HERSCHLEIN: I think that's right. But I'm
20 talking now the state court plaintiffs. So they can't literally
21 sign up for the MDL. They can agree to coordinate with the MDL.
22 THE COURT: Don't they get the same kit?
23 MR. HERSCHLEIN: It depends. If they agree to the
24 same kit, I have no problem. And whatever percentage they agree
25 to is fine. The problem is with the plaintiffs who don't want
1 the kit, but they also, we're asking them not to depose the same
2 15 witnesses 7 times each. And they say that's fine, we're
3 willing to live with that, but I don't want the kit, I just want
4 the transcript.
5 What the problem is, is if the transcript is defined
6 as "work product" and therefore within the kit, these plaintiffs
7 are going to say, I'm no longer going to coordinate, I need to
8 depose these 15 people, and then each person having to be
9 deposed 7 times, which is something that all of us are trying to
11 Looked at a different way, if the 15 people are
12 deposed and a state court plaintiff asks, sends me a notice to
13 produce documents and it says, produce to me any deposition
14 transcripts of current or former Boston Scientific employees
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 35 of 81
15 about ProteGen, they get around this process. And unless
16 there's some way to avoid that, I have to produce the
18 So that's an issue I hope we can work out. Again, the
19 Rezulin order is very short. And between the Fen-Phen order,
20 the Rezulin order, and six other orders, hopefully we'll propose
22 THE COURT: One thing I've lost track of over the
23 course of time, it's probably disputed as to who actually has
24 control over the transcripts. Because you have the court
25 reporters. They get upset -- if the deposition is taken and
1 somebody wants a copy, they call the court reporter and the
2 court reporter sells it at a copy rate, and the copy rate is
3 much less than what you could get paid for another lawyer to
4 simply put it through his or her photocopy machine. So that the
5 court reporter has an interest.
6 And I don't know whether, legally what interest the
7 court reporter has in the transcript. It could well be that if
8 you order the transcript, you've taken the deposition, you can
9 do whatever you want with it. I just don't know the answer to
11 MR. CORY: Your Honor, I think in most MDL's, it just,
12 it dawned on me that I don't think that, I think that we're not
13 supposed to xerox depositions and photocopy depositions and pass
14 them around. I think that that does violate our agreements with
15 our court reporters. I know with the MDL depositions it would.
16 That if somebody asks for a deposition who does not want to
17 coordinate, that they're to be directed to the court reporter
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 36 of 81
18 and let them worry about it with the court reporter and pay her
19 charge or their charge.
20 The only thing that I was going to say is this. I
21 have no objection to working with Mr. Herschlein. I don't know
22 of any case out there, you may know of one that I don't know
23 about where somebody says, I'm going to coordinate but I don't
24 want to pay an assessment, I'll live with Mr. Cory's depositions
25 but I'll do my own work product the rest of the way.
1 What Judge Bechtel did in the Fen-Phen cases was this.
2 He said that if anybody, if any state court lawyer confers a
3 benefit from the MDL discovery and has not agreed to coordinate,
4 then that wouldn't prohibit me, if necessary, from filing an
5 attorney's lien. And he actually cites the case where it says,
6 if I spent 200 hours preparing for a deposition and I do a
7 deposition and somebody else who hasn't coordinated takes that
8 deposition and plays it to a jury and gets a big verdict without
9 doing any work, that whether he's coordinated or not, he's
10 gotten a benefit for which I would be entitled, if I wanted to,
11 to file a lien. I'm not saying that the PSC would. But I'm
12 just saying that it would give us the right to file liens.
13 And I can't imagine this being a big issue because I
14 can't imagine there are two or three cases out there where this
15 could exist. If there are, we'll try to work them out. If we
16 can't work them out, I think that the best thing to do would be
17 to give those lawyers notice of the hearing date on this order,
18 and let them come tell you why -- because they're the people
19 that have the objection to it. It wouldn't be Mr. Herschlein
20 nor me.
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 37 of 81
21 THE COURT: Well, couldn't you -- I'm trying to think
22 through this. You've lined up the court reporters. So you
23 could have an agreement with the court reporter that they're not
24 to give the deposition transcript to anybody unless that person
25 has signed up for the fee sharing agreement. You could do that,
2 MR. CORY: Well, this order says that. The order that
3 the judge in the Fen-Phen entered says that.
4 THE COURT: And then the defense counsel could say,
5 could tell people who ask that you can't, I'm not going to give
6 you the transcript unless you get a court order, unless you can
7 -- well, they could say, I'm not going to give you a transcript,
8 if you want a transcript, go to Mr. Cory and you can get one
9 through the sharing agreement. So I'm not going to give one
10 voluntarily. If they get a subpoena, I could issue an order
11 which says that they're not to give, they're to file a
12 protective order motion if they get a request in some outlying
14 MR. CORY: I don't think it's going to be as hard as
15 we think. But it looks like the groups that put this order
16 together in the Fen-Phen thought it through. And I tried to
17 think of any scenario that I could imagine that wasn't
18 contemplated. And then the one that says depositions aren't
19 work product shows up.
20 Other than that, I think that, for the most part, we
21 ought to be able to work something out and we ought to be able
22 to identify every state court case out there and figure out what
23 they want to do.
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 38 of 81
24 MR. HERSCHLEIN: Judge, we can work it out. The
25 procedure you outlined is exactly the opposite of what Judge
1 Kaplan put it place. Let us try to work it out. The problem
2 with that procedure is that it ends up with state court
3 plaintiffs saying, fine, I'm not paying the assessment, just
4 produce to me those 15 witnesses again. Then when someone does
5 that in Texas and Colorado and Alabama, my 15 depositions have
6 now become 45 depositions.
7 Again, the reason for the MDL is to try to coordinate
8 and not have that problem. So hopefully we can come out with
9 some way -- I don't know how many of these, it's only state
10 court plaintiffs. So they're not attorneys before this court.
11 They're not in the MDL. They're in state court. Hopefully, we
12 can work something out somewhere, somewhere that we can all live
14 THE COURT: Because, I'm just thinking out loud, it's
15 a lot cheaper to go get the 15, Mr. Cory's 15 depositions than
16 pay the assessment, than to do them all over again. Do people
17 really --
18 MR. CORY: Absolutely.
19 MR. HERSCHLEIN: Your Honor, I guess I'm a defendants'
20 lawyer. I agree with you. But there are plaintiffs' lawyers
21 out there who tell me, maybe they won't take all 15, but they
22 want to take these 4 and they don't need the other 11.
23 So when I have five plaintiffs' lawyers each picking
24 four different witnesses, I'm still in the same boat. But
25 perhaps we can work something out.
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1 MR. ALLEY: Judge, Todd Alley.
2 THE COURT: Good afternoon.
3 MR. ALLEY: Their concept of coordination differs a
4 little bit from the plaintiffs. They're worried about their
5 people being deposed multiple times. All we're worried about
6 doing is trying to protect our work product, making sure we're
7 paid a fair amount for the work that's being done. It may very
8 well be that under the way that we do this, their people have to
9 be deposed more than once because there may very well be a state
10 court maverick out there who decides they don't want to do
11 anything with regard to our depositions or pay for our work
12 product, and they still want to take those depositions. That's
13 something we can't control.
14 But the whole concept of MDL, yes, is to limit those,
15 but it's not to end up with a situation where those people are
16 only deposed once and that's it. I mean, the reality is, you
17 only have a certain amount of control. This does give you as
18 much control as you possibly can to try and limit that. But
19 that scenario and the whole concept of coordination on their
20 part is, look, we only want to produce these people once, that's
21 it, they'll never be produced again, it's not a reality.
22 THE COURT: Let me ask this. It's been a long time
23 since I've looked at this. A deposition, it's not classic work
24 product because it's, in essence, a proceeding in the case. And
25 I know that, and it's sort of in limbo. It's not in open court.
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1 But it's not the lawyer sitting down writing, you know, an
2 outline. It's somewhere in the middle. I know that there's
3 been litigation as to whether members of the public have the
4 right to come in and attend the deposition. And I think that
5 there are rulings all over the place. The deposition isn't
6 automatically filed, so you don't have the sealing problems that
7 one --
8 MR. ALLEY: And that would be an issue, Judge, that
9 we're going to have to look at from both sides and see where it
10 falls and whether we can get the protection that we want, give
11 them the assistance that they want on coordination, and see if
12 it works out.
13 THE COURT: But the thing is it's ultimately, even if
14 -- I'm not sure there's going to be a big problem for the
15 defendants because it's ultimately subject to two controls.
16 The first is, enlightened self-interest from the other
17 plaintiffs lawyers in the state cases because why take, if you
18 are a plaintiffs' lawyer some place, you figure, here you have
19 the MDL team and they obviously know this case from soup to nuts
20 a lot better than I do. They've taken the deposition. That's
21 probably a lot better deposition than I could take.
22 And second, it's all subject to the regulation of the
23 state court judges handling discovery. I can issue an order
24 which says that you don't turn over the transcript unless you're
25 required to do so by a valid court order. You'd file a motion
1 for protective order. And you'd say, on the one hand, my
2 witness has already been deposed, you know, three straight days,
3 there's a transcript, and the plaintiffs' lawyer can get the
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4 transcript by paying for it. And the judge can either decide
5 pay for it or you have to just turn it over. And then you have
6 to do whatever you're required to do.
7 MR. ALLEY: More important than that, Judge, in this
8 particular litigation, there's such a limited, finite number of
9 cases. In the Fen-Phen and the other cases, you had attorneys
10 that were actually controlling 1,000, 1500, 2000 cases, who
11 economically, it makes more sense for that attorney to say, we
12 want to do those depositions in house.
13 In this particular litigation, the PSC probably
14 controls 75 to 90% of the cases that are out there.
15 THE COURT: So you don't have somebody out there who's
16 going to get, who has a thousand cases who's going to have to
17 pay 6% times 1,000.
18 MR. ALLEY: Correct. And that's not going to happen
19 here, though, is what I'm trying to say. I think that's the
20 problem that you're really thinking about and one that would
21 rear its ugly head in a lot of these mass torts, is that
22 somebody out there who has a thousand case, I don't want to pay
23 6% of a thousand cases, I'm going to take those depositions on
24 my own. I don't think that will be a problem in this particular
25 litigation, though, Judge.
1 THE COURT: Well, I'm inclined to go the work product
2 approach. It just seems to me to be fairer.
3 MR. ALLEY: Thank you.
4 THE COURT: And if somebody has an argument that it's
5 a public record and they're entitled to it, they can go litigate
6 it in state court.
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7 Now the Drinkwater case. I wrote a letter to Judge
8 Murphy and I told her that I had the MDL and that I'd love to
9 coordinate with her and that I'd be giving her a call, you know,
10 soon. And I plan to give her a call. If I sent out the letter
11 today, Wednesday, I'd probably give her a call toward the end of
12 next week and see what she has to say.
13 MR. HERSCHLEIN: Thank you, Your Honor.
14 MR. CORY: We tried.
15 THE COURT: Pardon?
16 MR. CORY: We tried. We had no luck.
17 THE COURT: With her or with a lawyer?
18 MR. CORY: With a lawyer.
19 THE COURT: The next issue, what I would do is I would
20 tell her -- I'm just sort of thinking out loud -- that if it
21 would be helpful to her in understanding the issues and the
22 coordination issues, to set up a conference call where Mr.
23 Glickstein and Mr. Cory and I would be on the telephone and we
24 can all explain to her what we're doing up here in Baltimore.
25 Now, one thing I broached last week or last time we
1 met is whether it would make sense to try one case on the issue
2 of liability or one case on the issue of damages or one case on
3 the issue of liability and damages, or simply, the other
4 alternative would be to keep all the cases -- I forget how this
5 works under the name of the case that I forget -- that there are
6 going to be a batch of cases that are subject to whatever the
7 consolidated complaint, that I could just keep here and try or
8 to try and settle here.
9 So I need to know what, right now we're planning to go
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10 through the end of discovery and motions, if there are motions.
11 So that the question is, what do we do with the actual cases?
12 Do I have a show trial on liability and damages? A show trial
13 on just liability? A show trial on damages? Do I keep all of
14 the cases that are subject to the master complaint for which the
15 transferror judges want to say they're transferring here? Or
16 should they be sent back for trial? What do we do with all
17 these cases?
18 Hear from you first, Mr. Cory.
19 MR. GLICKSTEIN: Can I suggest with, I'll seek the
20 plaintiffs' consent, that this initial discussion be off the
21 record? My experience in this sort of thing is that we can sort
22 of brainstorm and freewheel and not be worried about being bound
23 by any proposals we're making now or thinking about, we're going
24 to get a better quality discussion. But I'll happy to do it on
25 the record if Your Honor prefers.
1 THE COURT: Well, I'm not sure whether, you know,
2 you've got, the problem is that in an MDL proceeding, where
3 you've got all these, you know, you're all representing a
4 constituent, not the defendants, but the plaintiffs are
5 representing a constituency, I'm just not sure I can go off the
7 I'm basically happy to do what you all think is, if
8 you've reached some agreement as to how --
9 MR. GLICKSTEIN: I want to do what makes Your Honor
10 feel comfortable. I've done it both ways. It's not uncommon, I
11 think, to have, even in chambers, discussion of these sort of
12 issues. But if Your Honor has the least bit of discomfort going
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13 off the record, I prefer to stay on it so that Your Honor feels
15 THE COURT: Because I normally, even if there's a
16 telephone call, it's usually recorded. The way we do it up here
17 in Baltimore is that the judges do not, the district judges
18 don't get involved in settlement. If you want a settlement
19 conference, then we assign one of the magistrate judges to do
20 it. If would you feel more comfortable brainstorming with one
21 of the magistrate judges, then I would be happy to refer it for
22 that purpose. But I think that because there's a constituency
23 out there, it's probably better to do it on the record so that
24 they don't think that we're plotting against them.
25 MR. GLICKSTEIN: That's absolutely fine, Your Honor.
1 THE COURT: Thank you. Mr. Cory?
2 MR. CORY: Your Honor, I was going to, I had two
3 suggestions or brainstorming ideas, none of them that I want to
4 be binding on me. But here are some thoughts.
5 Number one is, over the next, between now and the end
6 of April, a lot of discovery's going to get done. So we, both
7 sides should be in a better position to assess the liability
8 issues during that period of time.
9 With respect to damages, which possibly could be a
10 more difficult thing to get our arm around, our hands around,
11 between both parties, I was going to make a suggestion to the
12 defendants, subject to your thought about it, was this.
13 What if we took a cross-section of any number of
14 plaintiffs, 10, 15, 20 plaintiffs where the defendants have
15 filed motions saying that the statute of limitations has run and
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 45 of 81
16 to see whether it truly has run. Plaintiffs who we go through
17 and say have the full scale of damages. We give them a
18 cross-section of the folks who we think have minimal injuries,
19 the folks who we think have catastrophic injuries. And we work
20 up those 25 cases first. And those are the depositions that we
21 take. So that we are able to somehow, I hate to use the word
22 "categorize", but we could somehow come up with a way to
23 categorize injuries and damages so we'd have a framework from
24 which to put values on cases.
25 If we were to do that on one end and then, on the
1 other end, finish up the liability between now and April, then I
2 think that we would have a, some kind of a way of valuing the
4 I'm also going to suggest to you that what I may view
5 as a million dollar case, they may view as a $10,000 case. And
6 I was wondering for you to think about, I don't know if we want
7 to use a magistrate or a special master or a mediator or
8 somebody, just to look at, just from the damages standpoint and
9 say, Mr. Cory, I don't care what the liability is, assume the
10 liability was absolute, this case is worth, you know, these kind
11 of cases are worth what they're worth.
12 Let me tell you the reason why this is an issue.
13 You're talking about women who have had vaginal erosions, for
14 the most part. You're talking about women who have had urinary
15 stress incontinence. And a lot of these are things that are not
16 things that you easily talk about, number one. Nor are they
17 things that you could say, well, he broke his arm in a car
18 wreck, we can go to a table and put a value on it. I think that
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 46 of 81
19 they're hard to put values on cases that you don't see in your
20 courtroom every day.
21 And I guess those are my thoughts as to how, it's
22 something for you to think about.
23 At the end of that process, I'm willing to try any
24 case you want to try, be it on liability, damages. And I think
25 that we're probably looking at being in a situation to do that
1 by fall.
2 THE COURT: Well, would it make sense to try, let's
3 assume -- let's just talk about litigation or trying a case
4 rather than having it mediated. We'll talk about mediated
6 See, at this point I don't know how many categories
7 you have. Do you have minor, middle, major? Because it might
8 make sense to try --
9 MR. GLICKSTEIN: Can I address that, Your Honor, and
10 that way Your Honor will hear from both of us before you frame
11 your tentative thoughts.
12 Essentially, in terms of trying to put a value on
13 cases, there are several variables. One is, obviously, a
14 liability assessment. I think that trained litigators are
15 usually pretty good at both looking at the same evidence and
16 being able to reach consensus, if you will, in terms of how
17 risky or not risky the liability case is.
18 There are issues concerning the different types of
19 cases and what the values that might be attached to those are.
20 And Your Honor asked me what the categories are. Some
21 of the categories that I can tell you about are as follows. The
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22 cases range from women who have no injury, may not even have a
23 medical consultation concerning an injury, but simply have a
24 sling which to us is working perfectly fine, and all their
25 medical records indicate is working perfectly fine, but maybe
1 they're saying they have some subjective complaint about which
2 they've never even talked to a doctor. There are other women
3 who have -- these are no, to us, those are no injury cases.
4 There are women who may have at one time or another
5 complained of pain, been treated, and it's been resolved, and
6 there's no explant. As I think I indicated when I was here
7 before Your Honor in this courtroom the first time, the most
8 frequent complication that occurs is a non-healing, sometimes
9 it's called a vaginal erosion. Sometimes that can be treated by
10 antibiotics and the woman gets well. In other cases the sling
11 is removed in an outpatient procedure and the woman gets better.
12 That's another kind of case.
13 What we found is that in a large percentage of the
14 cases, even after the sling is removed, the woman remains
15 continent, meaning that they no longer leak. And so even though
16 it was an implant and an explant, the medical problem is, for
17 which they had the implant, is solved.
18 There are certainly cases which are more serious than
19 that and there are certainly cases which have resulted in
20 multiple operations. And I think we all recognize that those
21 kind of cases are a horse of a different color from the ones
22 that I talked about before.
23 THE COURT: Well, just thinking out loud. One way to
24 handle it is, you could take, you have all the cases that are
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25 transferred to here, of on which there are many. You could take
1 a representative sample, send them back, have them tried. I
2 keep the rest. Then get to see, you know, different areas, you
3 know, there might be ten cases or whatever. They get tried.
4 You don't have an avalanche of cases. You get to see what the
5 jury is doing with respect to liability and damages in these
6 categories of cases. You then come back and try to get them
7 settled, be it with a mediator, special master, or a magistrate
9 MR. GLICKSTEIN: I'd like to see if we can address a
10 way of seeing how, if at all, we can handle some of those issues
11 here before remanding the cases out to other jurisdictions to
12 try them.
13 THE COURT: By "issues", you mean trying a few cases
15 MR. GLICKSTEIN: Trying a few cases. Let me just,
16 there's another significant issue here, a couple of other
17 significant issues that need to be resolved.
18 The sling has now been off the market for nearly two
19 years. Many of the women have had complications two, three,
20 sometimes four years ago. There is a substantial issue with
21 respect to a large proportion of these cases, we feel, on
22 Statute of Limitations.
23 Now, even when you, these are the different, some of
24 the different damages scenarios.
25 My own view, again, as experienced trial lawyers and
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 49 of 81
1 litigators, and Mr. Cory is certainly experienced, and we are,
2 probably are able to come close to an agreement. Maybe I'm
3 wrong. Once you actually get into these fact patterns about
4 which ones fall where, and maybe within a range, I'm sure that
5 theirs will be higher than ours, sort of what are the magnitude
6 of what they're worth.
7 The real sticking point in these sorts of litigations
8 -- and that's why I disagree very strongly with Mr. Cory's
9 proposal to limit discovery to 25 plaintiffs -- is how many of
10 the high damage cases are there, how many of the middle damage
11 cases, and how many are really cases that are nuisance value, if
13 And the way that mass tort litigation typically
14 evolves, when we came before Your Honor and Mr. Cory was
15 litigating these cases individually, it was probably a degree of
16 screening that was going on in terms of the cases. And we were
17 probably seeing a higher percentage of what Mr. Cory would
18 consider to be high value cases.
19 Frequent times, when you have an MDL, that triggers a
20 mass of filings. And within a very short time we went from
21 about maybe 30 cases to now Mr. Cory is promising about 500
22 cases. And there has to be a mechanism for the parties to
23 ascertain and determine how many of those 500 cases are really
24 no injury cases or statute barred cases or low injury cases,
25 because that is really what drives the number here.
1 I'm going to use a hypothetical number. But if you
2 were to say that a high valued case is a thousand dollars and a
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 50 of 81
3 low valued case is zero or a dollar, then I know that those are
4 not the real numbers and Mr. Cory -- I'm just doing the math.
5 We would probably come very close to knowing what the value of
6 the high value, middle, and low is. Where we're really going to
7 be fighting about is what percentage of their cases are good and
8 what percentage of their cases are bad. And the job of the MDL
9 judge, it seems to me, is to separate out the wheat from the
10 chaff. And there's several ways that that occurs.
11 Some cases may be disposable on motion. We've filed a
12 Motion to Dismiss, I think, in about ten cases on the grounds of
13 Statute of Limitations. These are cases where the explant
14 occurred longer in time ago so that, from the time of the
15 explant of the device due to complication of the device and the
16 filing, the Statute of Limitations has run.
17 If those motions, if those issues can be disposed of
18 on Motion to Dismiss, that will say something. If we need to go
19 through discovery and have to attempt to resolve those issues on
20 summary judgment instead of Motion to Dismiss, then we'll have
21 to do that. But it seems to me that it's not practical, really,
22 to get our hands around what this litigation is all about until
23 the parties know whether or not a significant number of claims
24 are going to be barred by Statute of Limitations.
25 The second question is going to be women who have not
1 sustained any tangible, physical injury.
2 We filed a Motion to Dismiss some claims in Alabama.
3 That was the Bradford motion. I think the plaintiffs concede
4 that the Alabama Supreme Court has now resolved that issue.
5 There may be, as we get into it, other such cases. We
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6 may see in instances where, because the master complaint is
7 vague, instances where perhaps there's an allegation of injury
8 but when you get into the medical records there's no
9 demonstration of injury. And there will be Motions for Summary
11 So we really need to have discovery of all the
12 plaintiffs. I don't think that there's any way out of that. If
13 this was asbestos and we had 10,000 cases, maybe that would be
14 impossible. But we don't have 10,000 cases. And if the
15 plaintiffs are bringing those cases, they should be prepared to
16 provide discovery so that they can be evaluated and so that the
17 Court and the parties can ascertain whether it's wheat or it's
18 chaff. We think it's mostly chaff.
19 THE COURT: Well, how long would it take you to, do
20 you need to take a deposition of each plaintiff, and how long
21 would that take you?
22 MR. GLICKSTEIN: We need to acquire, we certainly need
23 to acquire the medical records.
24 THE COURT: Well, let's assume that you get the
25 medical records, you take depositions, and you've done all that.
1 Now what do you do? Do you try a few cases?
2 MR. GLICKSTEIN: My suggestion, my suggestion to Your
3 Honor is that at that point we come up with a mechanism for
4 identifying different fact patterns and trying several cases
5 before Your Honor.
6 THE COURT: Good. Thank you. Mr. Cory?
7 MR. CORY: Your Honor, first of all, I'm involved in a
8 number of these cases and I don't think I have any chaff cases.
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 52 of 81
9 Is that what your expression was? And I would like for him to
10 come tell some of my clients with vaginal erosion, that they
11 have a chaff case. And I look forward to telling the jury that.
12 But in any event, with respect to the cases that we
13 have, every single client that we filed a case on behalf of or
14 intend to file a case on behalf of, has had a vaginal erosion or
15 they won't be filed. Because we think the folks who have not
16 had a vaginal erosion are people who may, more than likely,
17 depending on which state they live in, be protected by the
18 monitoring class that is presently pending in federal court,
19 before you, that was filed originally in Florida.
20 Secondly, Your Honor, my suggestion about getting a
21 grasp on 25 cases was not in any means, by any means to say that
22 we wouldn't do them all. It was just, as Mr. Glickstein said,
23 for us to see if we can come up with a criteria for trying to
24 evaluate the ones who have real injuries. And if any lawyer out
25 there in the country has filed a case with no injury, then Mr.
1 Glickstein knows what to do with that case.
2 But I don't think that we have cases that are due to
3 be granted on summary judgment based on the fact that they don't
4 have an injury.
5 Thirdly, what I was suggesting would, I think since
6 we're all folks here and we know what we're doing, as Mr.
7 Glickstein suggests, if we do 25, we know how to answer. We get
8 to a point where we know how to answer the fact sheets, we know
9 how to provide medical records. We know exactly what they're
10 looking for. So we can cut, we can cut the wasted time out and
11 get them the information they need to evaluate cases.
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 53 of 81
12 And in the process we can depose, if they need to
13 depose 500 women, we'll put up 500 women. We're not saying that
14 we shouldn't. What we're saying is, let's come up with a way to
15 figure out how to value these cases. If that's a bad idea,
16 geez, this won't be the worst you've heard in this litigation.
17 THE COURT: Why don't we do this? It's about quarter
18 of. Let's take just a 15 minute recess. Then we'll figure out
19 where we go from here. Do we have the next hearing scheduled, I
20 believe? No?
21 MR. HERSCHLEIN: Not yet.
22 MR. CORY: We don't, Your Honor, but I was going to
23 suggest that we would want to do it in February, after we've
24 taken some -- would we need to do one in January?
25 THE COURT: I wouldn't think we need to do one in
1 January. I think it would be helpful to do it after we get into
2 the depositions.
3 MR. CORY: And there's some motions that need to be
4 responded to.
5 THE COURT: We've got the remand motions. Let's take
6 that up, come back at 4:00, then.
8 THE COURT: Before we get back to, why don't we
9 continue with this? It seems to me that what might make sense
10 is to have the next hearing in February. My secretary is going
11 to, I think she's on the line with Ms. West now.
12 THE CLERK: February the 15th at 2:00.
13 THE COURT: Or?
14 THE CLERK: Or February the 25th at 10:00.
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15 THE COURT: So which would you all prefer?
16 MR. GLICKSTEIN: It would make more sense to do it
17 sooner because the Jackson trial will be coming up probably.
18 THE COURT: Well, I can probably, there's got to be
19 some -- could you call?
20 MR. GLICKSTEIN: No. February 15, I think, is okay.
21 THE COURT: The 15th. Is 2:00 all right?
22 MR. CORY: Your Honor, I can tell you that, from our
23 perspective, 2:00, any time would be better than 10:00.
24 THE COURT: Good. Then 2:00 it is. The 15th at 2
1 It would seem to me that we ought, that you might do
2 two things between now and then with respect to the plaintiffs.
3 The first is perhaps to take some depositions of the plaintiffs
4 or to set a schedule where by the end of April, when the 15
5 depositions will have been taken, the 15 principal depositions
6 of the defense will be taken, to have taken X number of
7 plaintiffs' depositions.
8 Because I think if we take a smorgasbord of these
9 depositions, they'll start to fall into a pattern and you'll
10 also evolve a mechanism for how -- you may know how to do it all
11 already -- but you'll evolve a mechanism for taking the
12 depositions, what records you need. And I think we'd all be in
13 a better position in February or perhaps even later in April or
14 May or June, to figure out what we do with the cases after they
15 get through discovery and motions.
16 But there are a number of, and I'm just not sure yet.
17 And I think that you'll all have a better handle once we get a
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18 little bit farther down the line.
19 Let me ask Mr. Glickstein. If you were going to take
20 a number of depositions between now and either February or
21 April, how many do you want to take and do you want to have
22 taken them by the February date or the April date?
23 MR. GLICKSTEIN: I couldn't give Your Honor a precise
24 number. Actually, Mr. Weisbecker is more involved in the
25 plaintiff-oriented discovery than I am. A lot depends on how
1 quickly we get the fact sheets and the authorizations.
2 A concern that I have is that while hundreds of cases
3 are being filed, fact sheets aren't coming in nearly as fast as
4 the cases.
5 THE COURT: Why don't I ask Mr. Weisbecker? Good
7 MR. WEISBECKER: Good afternoon, Your Honor.
8 THE COURT: Don't you all have a representative, you
9 may not have everybody, don't you have a couple of hundred fact
10 sheets that you could look through and select a number of
12 MR. WEISBECKER: Unfortunately, we do not yet. And
13 I've been promised that they are on their way. However, we have
14 not yet received most of them. We have about 45. We should
15 have by now approximately a hundred.
16 THE COURT: Let's say, let me just ask Mr. Cory. Do
17 you know when you're going to get --
18 MR. MARTIN: Clay Martin. I believe the number is
19 more like 65 that he has now. And we are desperately trying to
20 catch up with the number we owe Paul. And they have been
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21 working with us. And we intend to catch up with the number that
22 we owe them by, within the next 30 days.
23 THE COURT: So when do you think you'll have a hundred
24 to them? A hundred releases and --
25 MR. MARTIN: By the end of this month.
1 THE COURT: By the end of the month?
2 MR. WEISBECKER: That would be helpful.
3 THE COURT: Let's say you have a hundred to work with.
4 Obviously, they have to give you as fast as possible all 500.
5 But let's say you had a hundred to work with and you were going
6 to take 25 depositions between now and, let's say, February. Is
7 this something you want to do or don't want to do?
8 MR. WEISBECKER: Oh, no, we definitely want to. We
9 could probably do 50 between now and the end of January if we
10 had a hundred fact sheets by the end of this month.
11 THE COURT: Why don't you do this? You've got
12 somewhere between 45 and 65. Why don't you pick, you could
13 start working on scheduling of 25 now. And when you get the
14 remaining X number to bring the grand total up to a hundred by
15 the end of the month, you can pick another 25. And that way you
16 should have a pretty good sample.
17 MR. MARTIN: Your Honor --
18 THE COURT: Yes, sir.
19 MR. MARTIN: I think that maybe 50 between January 1st
20 and February 15th is somewhat optimistic, just from the logistic
22 THE COURT: Well, I thought that for most of these,
23 you're really only worried about the local counsel because the
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24 local counsel for the plaintiff would represent her? Is that
25 true or not true?
1 MR. MARTIN: Your Honor, in these cases we would be
2 involved, on the ones that he's talking about that we owe him.
3 I don't know the other cases that this group is not involved in.
4 MR. WEISBECKER: My understanding, Your Honor, is that
5 they do have local counsel for most of the cases.
6 THE COURT: Let me ask this. You all represent, how
7 many MDL cases have now been filed and transferred here?
8 MR. MARTIN: I'm not positive on the exact number.
9 MR. GLICKSTEIN: I don't have a running total because
11 THE COURT: Do you have a ballpark?
12 MR. GLICKSTEIN: I believe it's over, I believe it's
13 over a hundred now.
14 MS. MERKLE: We have 130 that I'm aware of.
15 MR. GLICKSTEIN: Ms. Merkle says 130 that she's aware
16 of, and I defer to her. In case of a mistake, I can't be
18 THE COURT: Let me ask this. It's Mr. Martin?
19 MR. MARTIN: Yes.
20 THE COURT: Mr. Martin, how many could you all defend
21 between now and the end of February?
22 MR. MARTIN: I would think that 25 would be more in
23 line. I think, realistically, if the defense lawyers want to
24 think about it, that 50 is probably a stretch as well.
25 THE COURT: Why don't you do 25 between now and the
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1 end of February, but with the understanding that once the end of
2 February comes, particularly if there are a lot more cases that
3 are filed, the plaintiff is going, the plaintiff, the group is
4 going to have to gear up to figure out how you're going to get
5 these done in box car numbers because I think that -- and what
6 we can do is by the time we get together in February, there will
7 have been a number of these depositions. You've already taken
8 some in the cases that you've had. And you can start figuring
9 out, perhaps, is there a way to do each of the plaintiffs with
10 either a truncated deposition or no deposition, just on the
11 medical records?
12 So we'll talk about, how do you go about assessing
13 these cases? Do you need to take a deposition in each one? If
14 you do, then you're entitled to take them. And the plaintiffs'
15 lawyers would simply just have to accommodate, to figure out a
16 way to get it done.
17 MR. WEISBECKER: That's fine, Your Honor.
18 THE COURT: So 25 between now, and you can pick any 25
19 you want.
20 MR. WEISBECKER: From the fact sheets that we have
22 THE COURT: That's right. What you ought to do, the
23 understanding is that you're going to get the remainder, up to
24 hundred, by the end of the month. So you might want to cull
25 through the half. You've got half of that number. You might be
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 59 of 81
1 able to find a representative sampling now or you might want to
2 pick half now and half later. But I'll leave that up to you.
3 MR. WEISBECKER: We can certainly do that. Thank you.
4 THE COURT: Good. And the depositions will be taken
5 wherever the plaintiff is, unless you have some contrary
7 MR. WEISBECKER: That's fine.
8 MR. CORY: Your Honor, I wanted to clarify a point. I
9 was corrected at the break. Of the cases that we have filed,
10 every single lady has a personal injury. I was told that there
11 are some ladies that have not been explanted, with the sling.
12 THE COURT: Not been?
13 MR. CORY: Have not had explant surgery. So I wanted
14 to make sure that I corrected that on the record, that I was
15 corrected during the break.
16 THE COURT: Good. Thank you.
17 MR. GRAFFEO: Your Honor, before we leave the issue of
18 depositions, it falls in here. There are several plaintiffs who
19 have already given depositions. And I think the parties are
20 going to -- well, we may need to get Your Honor's guidance on
21 that, whether it's necessary for them to be put up again for a
22 deposition without some showing as to why it's necessary.
23 THE COURT: Well, let me ask this. You all are really
24 only interested in taking new depositions, I would expect?
25 MR. WEISBECKER: If I may, Your Honor. We did ask
1 for, I think, one or two depositions that, continuations of
2 depositions of cases that have previously been deposed about a
3 year, a year and a half ago, largely out of frustration for not
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 60 of 81
4 having received the fact sheets for new plaintiffs and in a
5 desire to keep moving. If we receive these fact sheets, the
6 hundred fact sheets that we've been promised by the end of the
7 month, and allowed to take 25 depositions by the end of
8 February, I think we can postpone that issue until a later date.
9 THE COURT: Good. We'll put it off to a later date.
10 The remand motions, the schedule has been set. The
11 defendants' opposition is due by January the 11th of the year 2,
12 and the plaintiffs' replay is due January 21st of the year 2.
13 And oral argument, we need a date in February.
14 How long do you all anticipate the oral argument will
16 MR. GLICKSTEIN: Should we not do the February 15th
18 THE COURT: I was just thinking, do we need more time?
19 Because we're not going to convene until two. We go two until
20 five, maybe we could go two until six. I don't know when you
21 all are going to be leaving.
22 MR. GLICKSTEIN: They tend to, I mean, there are a
23 number of motions but they tend to raise, I think, on the remand
24 issues, the same basic issue. I can't imagine that we would be
25 arguing those --
1 THE COURT: Thirty minutes a side?
2 MR. HERSCHLEIN: At the outside, I would say.
3 MR. CORY: Your Honor, we're talking about the laws of
4 three different states and that's, I think, Texas, Tennessee,
5 and Florida, are the issues, the three states in which there are
6 remand pending before the Court. And once we argue the law in
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7 those three states, the facts are probably generally the same,
8 probably 30 minutes a side.
9 But I just wanted you to know, every state has its
10 different laws that you'll have to deal with. And I guess if
11 you just, ten minutes a side per state, it will be 30 minutes, I
13 THE COURT: Good. So we'll do 30 minutes a side. I
14 have here the Balter issue.
15 MR. HERSCHLEIN: Your Honor, Balter is a case, Your
16 Honor, that was a class action filed in Florida. That was also
17 removed. Within the past week, a motion was filed, asking that
18 this Court strike a filing Boston Scientific made in the
19 District Court in Florida. I'm not sure that this Court can do
20 that. I'm not sure why this Court would do that.
21 The filing that was made in Florida by the defendants
22 requested that the District Court in Florida stay a decision on
23 a prior filed remand motion by the plaintiffs. And the reason
24 why the request was made was that the case was tagged and
25 conditionally transferred to the MDL court, to Your Honor.
1 That motion was granted. The brief that they're
2 actually asking to strike, I have the cover page of. The cover
3 page is endorsed by judge, I this it's pronounced Kovachevich,
4 of the U.S. District Court in Florida. I can show that to Your
5 Honor. The Florida court granted the stay motion.
6 Quite frankly, I was expecting last week to get a
7 motion to remand on the Balter case. Whether it's the same
8 brief they filed in Florida or not, they have to file something
9 before Your Honor, my humble opinion, before Your Honor can
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 62 of 81
10 actually read and rule on a motion.
11 Instead of filing the Motion to Remand, they basically
12 filed a motion claiming that what I filed in Florida was
13 deficient for some reason, should be stricken, and the case
14 should be remanded sua sponte, I guess.
15 I'm happy to brief Balter according to the remand
16 schedule that we've set out. I quite frankly thought that
17 that's what we talked about. If I could, Your Honor --
18 THE COURT: I thought that the issue that I have to
19 decide on the remand case has to do with the non-diverse --
20 MR. HERSCHLEIN: That's correct, Your Honor. And just
21 if I could, I don't have a copy. But that's the order of the
22 Florida court staying the case. As you can see, it's endorsed
23 on the brief, which is the brief that plaintiffs had requested
24 this Court to strike, which is, as I said, not on file in this
25 court but in the district.
1 Quite frankly, again, what I think should happen with
2 Balter is, plaintiffs can stand on their motion if they like.
3 They can supplement it. But I suggest they do it promptly. And
4 January 11th is the date for the defendants to file their
5 opposition to whatever motion they want to put forth before this
6 court. And we'll set that up for the February hearing as well.
7 THE COURT: Good. Thank you. Yes, sir.
8 MR. ALLEY: Judge, we will --
9 THE COURT: If you could, just for the reporter.
10 MR. ALLEY: Certainly. Todd Alley again. We will be
11 glad to do whatever this Court directs us to as far as refiling.
12 Whatever was filed in the District Court in the Middle District
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13 of Florida, of course, automatically transfers up to this
14 transferror court.
15 But one of the things that we were trying to make a
16 point of, Your Honor, is that what they filed was actually in
17 derogation of our local rules under the Middle District. First
18 of all, initially, the Balter case was filed and it was untimely
19 removed. It was removed months after it was filed. We filed a
20 Motion for Remand rather than responding within ten days, which
21 is what is required under our local rules.
22 A Motion to Stay was filed, which actually reads as if
23 it's a motion to, in response to our Motion for Remand. And
24 what we are just trying to do is point out to this Court that
25 this actually is a wolf in sheep's clothing. It's not a proper
2 THE COURT: Well, why don't we do this? If I can just
3 cut you off because we're running out of time. Just whatever
4 you want to file, file here.
5 MR. ALLEY: That's fine.
6 THE COURT: When can you file it?
7 MR. ALLEY: We'll have it filed by the end of this
9 THE COURT: That's fine. And then it will be subject
10 to the -- well, you can file it, why don't you give yourself
11 some more time, by the end of next week.
12 MR. ALLEY: That will be fine.
13 THE COURT: And then that gives the other side until
14 January the 11th to oppose it.
15 MR. ALLEY: Thank you, Your Honor.
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 64 of 81
16 MR. HERSCHLEIN: I don't anticipate -- I'm also
17 working on five briefs on remand due the 11th. If the brief
18 comes next week, I might need a couple days, but we'll work that
19 out. A couple days beyond the 11th.
20 THE COURT: That's fine. Then the Bradford motion to
22 MR. HERSCHLEIN: Just briefly, Your Honor. Bradford
23 is the case where there was a medical monitoring, no allegation
24 of injury. The Alabama Supreme Court, in a brilliant decision,
25 said there is no such claim. I'm big on Alabama. What the
1 plaintiffs have done recently is file a Motion for Leave to
2 Amend, claiming that two of the plaintiffs, I guess, now realize
3 that they do have an actual injury, Mrs. Bradford and Mrs.
4 Fulmer. Mrs. Fulmer, I believe it's alleged, had an explant
5 surgery in November. Mrs. Bradford I don't think did have an
6 explant, but claims that there's some injury of pain.
7 Obviously, those are issues, substantively, we're
8 going to want to take discovery of and get in, filed in, on the
10 However, the motion -- and we might be able to work
11 this out -- the Motion to Amend changes the original complaint
12 in two ways. One, by dropping, I believe, five plaintiffs.
13 There were five named -- the original complaint had, I believe,
14 six or seven plaintiffs. The amended complaint only has two or
15 three. It seems to me that that's an intentional decision to
16 drop several plaintiffs. And I believe those plaintiffs' claims
17 should be formally dismissed in an order.
18 The second item that I think is relevant from the
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19 original complaint to the amended complaint is that the medical
20 monitoring claims of Mrs. Bradford and Mrs. Fulmer have also
21 been omitted from the new pleading. So I think there should be
22 an order, similar, I think there should be one order, basically
23 dismissing the medical monitoring claims of the remaining
24 plaintiffs and dismissing the claims of the omitted and
25 therefore no longer remaining plaintiffs.
1 I don't know if that's, if that's a problem. Is that
3 MR. GRAFFEO: Well, I just want to clarify, there was
4 one other plaintiff who was originally filed as a personal
5 injury claim. And pleading is a little different from place to
6 place, I know. But my intent was to, as I discussed on the
7 phone when we had our hearing, Your Honor, was to allege these
8 injury claims for the two plaintiffs who now have injuries. Of
9 course, we're using the short form complaint so it makes it a
10 little different. But I was trying to use that mechanism to do
11 the amendment.
12 It would leave the original plaintiff who always said
13 she had an injury and always pled she had an injury, the lady
14 named Catherine Smith, I believe is her name. And then Ms.
15 Bradford would stay in on her injury claims and we would concede
16 that the monitoring claims would be subject to the Court's
17 order. Ms. Bradford and Ms. Fulmer. So we're really just left
18 with three plaintiffs with personal injury claims and, I
19 believe, one spouse with a consortium claim.
20 THE COURT: Well, it would seem to me that, if when
21 you amend a complaint, the amendment probably replaces the
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 66 of 81
22 original complaint. So what was ever in the original complaint
23 that's not in the amendment just doesn't exist any more. But
24 for the docket, it probably makes sense to have as part of, just
25 a short order stating that leave is granted to amend the
1 complaint. The effect of the amendment is to dismiss without
2 prejudice the claims of X, Y, and Z. A, B, and C remain as
3 plaintiffs. And the claim for medical monitoring has been
4 dropped. That way, on the docket, it might be, it will be
6 MR. GRAFFEO: And it may be necessary to redo the
7 amendment. And I apologize, Your Honor. I was trying to get it
8 to you as quickly as I could because I didn't know, I didn't
9 want to hold up your order, which was really only to addressing
10 those monitoring claims.
11 So I had no intention of dismissing the lady who
12 originally had an injury claim.
13 MR. HERSCHLEIN: Your Honor, what we'll do is, there's
14 some paperwork clearly that we have to do just to clean it up.
15 My understanding was the plaintiff that Mr. Graffeo just talked
16 about was getting dropped because she did not appear in the
17 original complaint. So we'll have to file something.
18 One point I think is that, is based on the Alabama
19 Supreme Court's decision, I think the dismissal is with
20 prejudice, not without prejudice, on the medical monitoring
21 claims. And I don't know --
22 MR. CORY: It would be on the medical monitoring but
23 it wouldn't prohibit them from filing a personal injury claim if
24 they had one in the future.
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 67 of 81
25 MR. HERSCHLEIN: I presume that you'll make that
1 argument in the future and I'll make whatever argument I might
2 have. But the claims that they've actually pleaded should be
3 dismissed without prejudice based on the Alabama Supreme Court.
4 THE COURT: Well, if it's strictly medical monitoring,
5 then it ought to be dismissed with prejudice. But if all of a
6 sudden, she woke up in great pain tomorrow, if she didn't allege
7 actual injury, then her actual injury claim, past or future,
8 would not be affected, it would seem to me.
9 MR. CORY: And it will reflect that way. Your Honor,
10 most importantly, I guess, the defendants want to make sure that
11 the class action allegations, an order from you dismissing
12 those, that those claims are dismissed.
13 THE COURT: In which case?
14 MR. CORY: In the Bradford case.
15 THE COURT: That's fine. Just add that. I've got
16 Statute of Limitations, motions scheduling.
17 MR. CORY: Motions were served on us this week. I
18 guess we need to respond. We'll respond. I guess, do you want
19 to hear those on the 15th as well? I think those are going to
20 take a little longer.
21 THE COURT: Well, we're talking about ten cases?
22 MR. GLICKSTEIN: Ten cases. The issue in each case
23 will be whether, at the time of explant, when a device is
24 explanted because of alleged complications, the person knew that
25 they had a complication and that the sling was the cause.
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 68 of 81
1 I would think it would be the same amount of time for
2 argument. I don't see any reason why the briefing wouldn't be
3 the same as on the remand. Actually, the Statute of
4 Limitations' motions were filed before the remand motions.
5 MR. CORY: Your Honor, in each case, first of all,
6 some of these cases, they are cases that have been stayed by the
7 filing of a class action. In other cases, Your Honor, there is
8 going to be a factual question as to when they discovered that
9 the reason why they had complications were related to the
10 ProteGen sling. Some of these women have been told that it was
11 a yeast infection, that it was not a complication associated
12 with the sling.
13 I think that there are going to be factual issues in
14 each case. And I don't know that we can argue ten complete
15 Statute of Limitations in 30 minutes a side.
16 THE COURT: Well, why don't we do this? If you can
17 get the briefing done by the 15th of February, that way all the
18 papers will be in. And we can schedule the argument at some
19 separate time. So if you get the briefing done. Just do the
20 briefing under the same schedule. That would mean that the
21 plaintiffs' opposition would be due by January the 11th. The
22 defendant's reply would be the 21st of January. Is that
23 feasible for the plaintiffs?
24 Destructive testing.
25 MR. GLICKSTEIN: First, I'm looking for some guidance
1 from Mr. Cory as to whether, whether or not this is a live
2 issue. A number of clients that Mr. Cory represents had their
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 69 of 81
3 slings explanted. We received a report from an expert in the
4 Jackson case that the expert had conducted destructive testing
5 with respect to some or all of those slings.
6 I don't know if any of those explanted slings were
7 from women that, for which destructive testing was done, were
8 women who have federal cases that are before Your Honor. But if
9 they are, then our viewpoint is that destructive testing is not
10 ordinarily supposed to happen absent court order, agreement of
11 the parties, opportunity for the other side to witness the
12 destructive testing.
13 So we propounded some discovery which said, tell us if
14 any of these explanted slings as to which destructive testing
15 was done is a person over whom Your Honor has jurisdiction, and
16 if so, please provide information with resect to that
17 destructive testing.
18 We were not able informally to get an answer as to
19 whether or not, or formally, because we've propounded an
20 interrogatory, to that question. So I suppose if Mr. Cory tells
21 me that, no, it was not anyone over whom Your Honor has
22 jurisdiction, then that motion's moot and we go away. If it is
23 so, then the motion is live and it ought to be briefed.
24 THE COURT: Good. Thank you. Mr. Cory.
25 MR. CORY: Your Honor, an expert in the Philadelphia
1 case submitted a report. The defendants cannot use the
2 Philadelphia venue to do discovery so they're trying to use your
3 courtroom as a mechanism to do discovery.
4 They didn't ask me, they sent interrogatories asking
5 me, did you do destructive testing -- excuse me. They sent me
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 70 of 81
6 interrogatories that asked me to give, have our expert give them
7 everything that he's ever looked at, everything he's ever done,
8 and everybody he's talked to that has a live blood pressure in
9 the last 15 years. I'm being facetious. But they've asked for
10 a lot of stuff.
11 They did not, the case management order required them
12 to seek leave of court before they filed any interrogatories and
13 they didn't.
14 Beyond that, today's not the day to hear that motion.
15 But their Motion to Compel is based on spoliation of evidence.
16 THE COURT: Let me ask this. The litigation in
17 Philadelphia, the Kaye Scholer firm is representing Boston
18 Scientific in the litigation. So don't they get all the
19 discovery in the Philadelphia case?
20 MR. CORY: Under their local rules, they can't. So
21 since they can't, they're trying to use your courtroom.
22 THE COURT: Let me ask this. Just if I could -- if
23 the expert's going to testify in the Jackson case, don't they
24 get discovery of the expert?
25 MR. CORY: No, sir.
1 THE COURT: The expert just walks into court and
2 testifies without any depositions or anything?
3 MR. CORY: No, sir. The experts are required to
4 submit detailed reports of everything they did, everything
5 they're going, and everything they reviewed and everything
6 they're going to say. And these experts submitted detailed
8 And I guess what I'm getting at, Your Honor, cut, make
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 71 of 81
9 it real short and sweet. The defendants have prepared fact
10 sheets. In the fact sheets they ask, do you have your sling. I
11 think there are questions they would ask, every single question,
12 would address every single issue they have in this Motion to
13 Compel. If there's a single witness, a plaintiff, in the MDL
14 who responds to that fact sheet and says, yes, I had my sling
15 explanted and yes, some testing was done on it, then they will
16 know. And then they will have an opportunity at that time to do
17 whatever discovery they want to do.
18 They're trying to use this as a mechanism to avoid the
19 normal discovery process, and it's just wrong.
20 THE COURT: Let me ask this. Are the plaintiffs in
21 the Jackson case, the plaintiff or the plaintiffs, are they also
22 plaintiffs in my case?
23 MR. CORY: No, sir.
24 THE COURT: In the Jackson case, did the expert round
25 up a bunch of explanted slings from people who would be in my
2 MR. CORY: The expert has a number of explanted slings
3 that are probably cases pending before your court. That's not
4 what they're asking. They're asking, did you do, did you do any
5 type of destructive testing on any slings.
6 THE COURT: Well, it seems to me that there are two
7 issues. The first is, will they get discovery eventually about
8 what these tests were? And the answer is yes. Because if the
9 slings were explanted from women who are in my case, then
10 they'll find out about the explantation. They'll find out,
11 they'll have to be given particulars of the testing. They can
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 72 of 81
12 take discovery. So that's not a problem.
13 The second issue is, will there be more destructive
14 testing of women who were in my case?
15 MR. CORY: There's never been any allegation that
16 there's been any destructive -- I mean, they're guessing that
17 there's been destructive testing.
18 THE COURT: Why don't I do that?
19 MR. CORY: I will make sure my experts don't do any
20 destructive testing on any slings in your case.
21 THE COURT: So if they do,, without, you know, a court
22 order or agreement. So that way the evidence is preserved.
23 MR. CORY: Thank you, Your Honor.
24 THE COURT: Now, what do you all need to get from me
1 MR. GLICKSTEIN: May I just address the timing issue?
2 I'm sorry to go back and forth like a ping pong ball.
3 This is a situation where discovery is relevant to
4 both cases. And this is, I think, a situation where what's
5 sauce for the goose is sauce for the gander.
6 Mr. Cory has told us that there's a number of things
7 that he wanted from the defendant before he started depositions
8 relating to testing. So we are gathering all sorts of, for
9 example, pathology slides, and produced those to Mr. Cory and
10 Mr. Cory's experts because he wants to see those before the
11 depositions start.
12 Now, if what happened in the Jackson case is the
13 expert explanted Mrs. Jackson's sling and did destructive
14 testing on it, I agree that's not Your Honor's concern.
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 73 of 81
15 THE COURT: If I could stop you. I thought the 15
16 depositions were of fact witnesses.
17 MR. GLICKSTEIN: Correct. They are of fact witnesses.
18 But if, in fact, the plaintiff has conducted destructive
19 testing, we're not talking about what should be work product
20 here. If it's destructive testing, the defendant has a right to
21 be at and see immediately when it's done. Then it seems to me
22 that we ought to be entitled to that right away.
23 The only thing that I ask at the outset of this is,
24 please give me an answer as to whether any of the explanted
25 slings of a woman who's in one of your cases has been
1 destructively tested. Because if the answer is no, then it's
2 moot, we don't have to fight about it.
3 I don't see why Mr. Cory can't say right now, or if he
4 doesn't know right now, make one phone call to his expert and
5 just tell me, are any of these slings in your cases? Because if
6 they are in your cases, we have a live issue and a Motion to
7 Compel that Your Honor ought to resolve.
8 It's a very simple question that all it needs to be
9 answered is yes or no, or, I don't know but I'll find out.
10 THE COURT: This is for Mr. Cory. If you're under the
11 Philadelphia rules, if your expert conducted destructive testing
12 and there's to be no deposition but you have to provide a
13 complete report, wouldn't that information be in the complete
15 MR. CORY: I think his findings and everything that he
16 give is in the complete report. I think he complied with
17 everything he's supposed to do in Philadelphia.
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 74 of 81
18 Your Honor, what they're really talking about is, is
19 that if we did, if we destroyed evidence in a case before you,
20 then maybe, maybe, possibly, there's a spoliation of evidence
21 claim that they can use in that, in a particular case when that
22 case comes before your court. To the extent that they can't, to
23 the extent that it's applicable in a state where spoliation of
24 evidence exists, so be it.
25 We have not had the opportunity to do any, respond to
1 their Motion to Compel. But in effect, what they want is for us
2 to give them our entire work product, an informal expert before
3 this court's, investigations and studies and all of his
4 findings, for an expert that has not even been disclosed before
6 THE COURT: Well, we're not at expert discovery yet.
7 MR. CORY: Right. Well, that's what they've asked
8 for, Your Honor.
9 THE COURT: My view is we'll cross this bridge. But
10 the order will be, you can't do any more destructive testing
11 unless you tell them about it. At some point you're going to
12 have to reveal the information. If expert depositions were
13 coming up, then you'd have to reveal it now. But since we're
14 just talking about fact witnesses for the next 15, then I'm not
15 going to get involved in it at this point.
16 But at some point relatively quickly, you're going to
17 have to answer the question, was there destructive testing and,
18 if so, what was done.
19 What I'd ask you to do is to collaborate on an order
20 which memorializes what we did today and sets the next hearing.
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 75 of 81
21 MR. ALLEY: Your Honor, could I ask just one quick
23 THE COURT: Yes, sir. I'll need your name for the
24 court reporter, please.
25 MR. HARVEY: Yes, Your Honor. Today Harvey for the
2 We had submitted to Your Honor by letter of Mr.
3 Herschlein a class action schedule. I think at this point,
4 given what's transpired today, clearly those dates are not going
5 to be workable. I don't think that the conversations that were
6 had at the time took into account any moratorium on discovery in
7 the Jackson case in Philadelphia. And I think we're in general
8 agreement that we'll get together and propose to the Court a
9 time schedule that would reflect that.
10 THE COURT: That's good.
11 MR. HERSCHLEIN: Your Honor, we're happy to withdraw
12 the letter and take another shot at them, to try to keep the
13 same dates. But we're happy to agree that we withdraw the
14 letter and report back to Your Honor, perhaps in a couple weeks,
15 as to whether we can come to an agreement on dates.
16 THE COURT: Good. If you can agree, just put it in
17 the order that you're going to prepare. And why don't you all
18 take the first cut, send it to Mr. Cory? And then if it's
19 approved, just send it to me.
20 MR. GLICKSTEIN: There is one last issue that I would
21 like to raise with Your Honor. And there is nothing pending
22 before the Court. But again, I'm trying to ascertain whether or
23 not we have a dispute with Mr. Cory as to something. And I need
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 76 of 81
24 certain information in order to ascertain whether or not the
25 dispute exists. And I don't think I'm getting enough
1 information in order to present, know whether or not to present
2 the issue to Your Honor.
3 It arises as follows. Your Honor has supervisory role
4 concerning communications with potential class members.
5 Ordinarily, there is a First Amendment right on the part of both
6 the plaintiffs and the defendants to communicate with class
7 members prior to class certification.
8 However, in instances where there is potentially false
9 or misleading communication, Your Honor has authority or
10 discretion to order some corrective communication.
11 Throughout the litigation, there has been extensive
12 advertising for plaintiffs. And we recognize that advertising
13 is also something that the United States Supreme Court has
14 sanctioned, for better or worse, and that ordinarily there's no
15 issue with respect to advertising.
16 There has been recently some advertisements which have
17 specifically targeted by name experts that we have designated in
18 the Jackson case. These are advertisements which infer, it
19 seems to me, that the doctors who we have designated as experts
20 and who most likely will be experts in this litigation as well,
21 committed malpractice. They don't say so in so many words but
22 that's the clear implication of the advertisements.
23 The ads are not run under the name of any member of
24 the Plaintiffs' Steering Committee. They're run under the name
25 of a, the Norris law firm in Birmingham, Alabama, Birmingham
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 77 of 81
1 also being where some members of the Plaintiffs' Steering
2 Committee are.
3 We have asked, we had some communication with Mr.
4 Cory's office concerning it. I did not personally have the
5 communication. I believe Mr. Herschlein did and Mr. Gunn, who
6 is a partner of Mr. Weisbecker. We just got a physical copy of
7 the advertisement today which, in our view, raises issues
8 concerning possible attempts at scaring witnesses who are
9 appearing on our behalf and may be portraying an inaccurate
10 picture to potential class members.
11 I am not at this point, because I only got the ad
12 today, raising a charge. I am not making a motion. But I need
13 to know whether or not any member of the Plaintiffs' Steering
14 Committee is in any way responsible for the placement of the ad.
15 I think Mr. Cory has said, well, we didn't place the ad. But
16 that, I'm not sure, covers all the potential parameters in terms
17 of behind the scenes was there Plaintiffs' Steering Committee
18 involvement concerning the ad.
19 Again, we're not seeking any specific relief. And if,
20 in fact, no member of the Plaintiffs' Steering Committee had
21 anything to do with the ad, then, of course, there's nothing for
22 Your Honor to decide.
23 But I don't want to have a whole discovery process
24 just to find out the simple question as to whether or not it's
25 an issue in this case or whether we have to go to a different
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 78 of 81
2 THE COURT: Good. Thank you. Mr. Cory.
3 MR. CORY: Your Honor, I'm trying to figure out what
4 exactly Mr. Glickstein is up here doing other than trying to put
5 me in a bad light.
6 THE COURT: He wants you to say whether you all have
7 anything to do with the ad.
8 MR. CORY: I guess, let's assume -- for what purpose
9 would that be, Your Honor? I guess he started up --
10 THE COURT: Why don't I just short circuit it, if I
11 can? I don't have the ad, I don't have anything else. If
12 there's a motion to be made, what you ought to do is make it
13 because it would be really a two-part motion. One is that you
14 would move for some corrective action to be taken with respect
15 to the ads. I don't know whether there's a state cause, court
16 cause of action, or whatever it is.
17 But if there are advertisements, I always have the
18 power to limit attorneys from saying things in the media or in
19 the press about a pending case if it's going to interfere with
20 the present case. So what you would do is if you're offended by
21 the ad, make a motion and then, in responding to the motion, the
22 plaintiffs' lawyers are going to be able to say, either, we had
23 nothing to do with it, so --
24 MR. GLICKSTEIN: I don't want to make a motion if the
25 plaintiffs had nothing to do with it.
1 MR. CORY: Your Honor, I guess, he's up here to put me
2 in a bad light, I think.
3 THE COURT: If somebody else did something about it.
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4 Let's assume that somebody else -- I just don't know what my
5 jurisdiction is. But just make the motion. We'll see what they
6 say in response. It could well be that if the plaintiffs don't
7 have, the lawyers don't have anything to do with it, then I
8 might have authority to sanction somebody else.
9 MR. GLICKSTEIN: Can I do this? Can I do this
10 instead, because it seems to me that I am not, I do not feel
11 comfortable, frankly, making a motion without information with
12 respect to whether the members of plaintiffs --
13 THE COURT: Why don't you do this? If I can just stop
15 MR. GLICKSTEIN: Could I have a --
16 THE COURT: What you can do is just write to Mr. Cory
17 as the head of the steering committee and say, we're offended by
18 these ads and we're contemplating filing a motion. And that way
19 you have an opportunity to work it out informally. If the
20 answer is, file your motion, then you just file your motion.
21 MR. CORY: Your Honor, I just want to be very brief.
22 I know it's time to go. Number one is, is Boston Scientific
23 offended? Is the doctor offended?
24 Assume hypothetically the doctor is offended or he was
25 put in a bad light or he was slandered or defamed. That doctor
1 should file his own law suit in the state court where the ad ran
2 and seek his own relief. I think that's what he should do.
3 Let me tell you what this is about, Your Honor. A
4 doctor filed an affidavit in state court in Philadelphia saying,
5 I put in umpteen number of slings and I had great response. An
6 ad runs now, and a hundred people called us, says, that we had a
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 80 of 81
7 sling put in by this guy and we had complications, problems, and
8 whatever. And now the problem is, is that the expert who is
9 giving an affidavit knows that his affidavit is worthless. And
10 they now know that we have or Norris has or somebody has 50
11 people who are going to come up and testify that they had a
12 sling put in by this man and had an erosion.
13 That's what this is about, Your Honor. They do not
14 want -- they can call it anything they want to call it. But the
15 truth of the matter is, is that it is, in any light they want to
16 look at it, is, first of all, if they think that it's not true
17 and it put the doctor in a bad light, the doctor should file a
19 THE COURT: Well, what I'll do is, there's nothing
20 before me at the present time. So I'll simply wait until there
21 is. Good. Thank you all.
22 (Conclusion of Proceedings.)
1 REPORTER'S CERTIFICATE
3 I, Mary M. Zajac, do hereby certify that I
4 recorded stenographically the proceedings in the matter of In
5 Re: ProteGen Sling, on December 5, 2001.
6 I further certify that the aforegoing pages constitute
7 the official transcript of proceedings as transcribed by me to
8 the within matter in a complete and accurate manner.
9 In Witness Whereof, I have hereunto affixed my
Case 1:01-md-01387-BEL Document 112 Filed 12/18/2001 Page 81 of 81
10 signature this day of , 2001.
Mary M. Zajac,
16 Official Court Reporter