Bueno v. Merck & Co., Inc.

• Court: District Court, S.D. California
• Decided: March 11, 2024
• Docket: 3:22-cv-00522
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 22-cv-522-H-BLM 11 SPENCER BUENO et al.,

12 Plaintiffs, ORDER DENYING PLAINTIFFS’ MOTION TO MODIFY 13 v. SCHEDULING ORDER

14 MERCK & CO., INC., et al.,

15 Defendants. 16 Currently before the Court is Plaintiffs’ March 1, 2024 Motion to Modify 17 Scheduling Order (“Motion”). ECF No. 77. On March 3, 2024, Defendants filed an opposition to 18 Plaintiffs’ Motion (“Oppo.”). ECF No. 78. For the reasons set forth below, Plaintiffs’ Motion is 19 DENIED. 20 RELEVANT FACT & PROCEDURAL BACKGROUND 21 On November 16, 2022, the Court issued an order regulating discovery and other pretrial 22 deadlines. ECF No. 25. On July 28, 2023, the Court granted the parties’ Joint Motion to Amend 23 Scheduling Order. ECF No. 65. Pertinent to the instant Motion, the new deadline for Plaintiffs to 24 serve supplemental expert rebuttal designations and reports was March 1, 2024. Id. at *2; see 25 also Motion at *2. 26 On January 5, 2024, Plaintiffs served reports from two experts, Dr. Dima Qato, whom 27 Plaintiff identified as a general causation and warning expert, and Dr. David Healy, a psychiatrist 1 E. Marshall in Support of Defendants’ Opposition to Plaintiffs’ Ex Parte Motion to Modify 2 Scheduling Order (“Marshall Decl.”) at ¶ 3. On January 19, 2024, Plaintiffs served a second 3 general causation and warnings report from a third expert, Dr. Jack Fincham.1 Id.; Marshall 4 Decl. at ¶ 4. 5 Between January 8, 2024 and January 17, 2024, Defendants’ counsel on three occasions 6 requested that Plaintiffs identify when and where they were willing to produce Dr. Qato and Dr. 7 Healy for depositions. Id. at *4; Marshall Decl. at ¶¶ 7-9, Ex. A. On January 18, 2024, Plaintiffs’ 8 counsel provided deposition dates and locations for Dr. Qato and Dr. Fincham, but not for Dr. 9 Healy. Id.; Marshall Decl. at ¶ 10, Ex. B. Defendants’ attorneys attempted to solidify a date for 10 Dr. Healy’s deposition on three more occasions, on January 22, 26, and 29, 2024 before Plaintiffs’ 11 counsel provided dates he was available on January 30, 2024. Id.; Marshall Decl. at ¶ 12, Ex. B. 12 On February 2, 2024, Defendants served Expert Designations naming four experts, Dr. 13 Steven Epstein, who offered two reports for both Plaintiffs, responding to the opinions of Dr. 14 Healy, and three general causation experts, Dr. Lydia Gilbert-McClain, Dr. Robert Platt, and Dr. 15 Patrick Ronaldson, who addressed the opinions asserted by Plaintiffs’ experts Dr. Qato and Dr. 16 Fincham. Id. at *3-4; Marshall Decl. at ¶ 5. Dr. Ronaldson’s report was 131 pages and included 17 over 200 scholarly article references; Dr. Gilbert-McClain’s report was 126 pages and included 18 references to thousands of bates-stamped documents, over 60 documents that are not bates- 19 stamped, and over 90 scholarly articles; Dr. Epstein’s two reports totaled nearly 70 pages and 20 included over 50 references to scholarly articles each; Dr. Platt’s report was 56 pages and 21 referenced over 80 scholarly articles. Motion at *3; Declaration of Kimberly L. Beck in Support 22 of Plaintiffs’ Ex Parte Motion to Modify Scheduling Order (“Beck Decl.”) at ¶ 3(a)-(e). Plaintiffs’ 23 counsel “immediately” provided Defendants’ experts reports to Plaintiffs’ experts upon receipt. 24 Id.; Beck Decl. at ¶ 7. 25

26 27 1 Dr. Fincham was ill before and on the January 5, 2024 production deadline, so the parties mutually agreed that his report would be accepted on January 19, 2024. Oppo. at *2; Marshall 1 Dr. Healy’s deposition occurred on February 20-22, 20242, Dr. Qato’s deposition took 2 place on February 26-27, 20243, and Dr. Fincham’s deposition is noticed for March 13-14, 2024. 3 Id.; Beck Decl. at ¶¶ 4-5; Oppo. at *3; Marshall Decl. at ¶¶ 13-14. 4 Plaintiffs request a 21-day extension of the deadline to serve their supplemental expert 5 contradictory/rebuttal reports, explaining, “[d]ue to the extensive length and complexity of the 6 Defendants’ expert reports and the time spent preparing for, traveling to, and participating in 7 depositions in this case, Plaintiffs experts have simply been unable to render their supplemental 8 expert contradictory/rebuttal reports by the deadline originally contemplated in the scheduling 9 order.” Id. The Court notes that this is the second request to continue the deadlines in the 10 scheduling order. See ECF No. 65. 11 LEGAL STANDARD 12 Once a Rule 16 scheduling order is issued, dates set forth therein may be modified only 13 “for good cause and with the judge’s consent.” Federal Rule of Civil Procedure (“Fed. R. Civ. 14 P.”) 16(b)(4). Essentially, “the focus of the inquiry is upon the moving party’s reasons for seeking 15 modification.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). The 16 district court may modify the pretrial schedule “if it cannot reasonably be met despite the 17 diligence of the party seeking the extension.” Lien v. City of San Diego, 2022 WL 1143548, at 18 *1 (S.D. Cal., March 9, 2022) (quoting Johnson, 975 F.2d at 609). If the moving party fails to 19 demonstrate diligence, “the inquiry should end.” Johnson, 975 F.2d at 609. To establish “good 20 cause,” parties seeking modification of a scheduling order must show that even with the exercise 21 of “due diligence,” they still cannot meet an order's timetable. Citizens Development Corporation, 22 Inc. v. County of San Diego, 2019 WL 13166661, at *1 (S.D. Cal. June 7, 2019) (quoting 23

24 2 Dr. Healy’s deposition took place over three days as he provided testimony regarding three 25 reports, two for the Plaintiffs in this case, and one for a Plaintiff in a related case pending in the District of Massachusetts. Oppo. at 4, n.3; Marshall Decl. at ¶¶ 13-14. Dr. Healy traveled from 26 his home in the Republic of Ireland to New Jersey for his deposition. Motion at *3; Beck Decl. 27 at ¶ 4. 3 Dr. Qato traveled from Chicago to New Jersey for his deposition. Motion at *3; Beck Decl. at 1 Johnson, 975 F.2d at 609). “The good cause standard typically will not be met where the party 2 seeking to modify the scheduling order has been aware of the facts and theories supporting 3 amendment since the inception of the action.” Morales v. Health, 2016 WL 3443664, at *1 (S.D. 4 Cal. June 23, 2016) (citing In re Western States Wholesale Natural Gas Antitrust Litig., 715 F.3d 5 716, 737-738 (9th Cir. 2013)). 6 PLAINTIFFS’ POSITION 7 Plaintiffs argue that “[g]ood cause exists here to enlarge the time period by 21 days” as 8 “Plaintiffs have been diligent in attempting to determine whether supplemental expert 9 contradictory/rebuttal reports are appropriate, and how to most efficiently and effectively 10 articulate the information for each such report.” Motion at *3. Plaintiffs further contend that 11 “Defendants’ five expert reports are extremely voluminous” such that “Plaintiffs’ experts have 12 simply been unable to render their supplemental expert contradictory/rebuttal report by the 13 deadline originally contemplated in the scheduling order.” Id. Plaintiffs assert that “Defendants 14 have not claimed that the requested modification to the scheduling order will prejudice them. 15 Nor do Plaintiffs see any potential prejudice.” Beck Decl. at ¶ 11. 16 DEFENDANTS’ POSITION 17 First, Defendants argue that Plaintiffs’ Motion is procedurally defective as Plaintiffs did 18 not meet and confer with counsel for Defendants by telephone as required by Civil Local Rule 19 26.1(a), and failed to explain “any specific details as to what steps were taken to comply with 20 the [scheduling order] deadline or to assess whether such reports are appropriate in this 21 context.” Oppo. at *5. Second, Defendants contend that Plaintiffs do not identify any permissible 22 basis for seeking relief as Plaintiffs do not articulate how they will be irreparably harmed 23 if this motion were heard according to regular noticed motion procedures, and that Plaintiffs 24 created their own emergency because they did not request an extension from Defendants until 25 two days prior to the deadline. Id. at 9; Marshall Decl. at ¶ 17. Finally, Defendants assert that 26 no good cause exists to grant “Plaintiffs the 21-day extension as Plaintiffs’ only justification for 27 the requested modification, that Plaintiffs’ experts have simply been unable to render their 1 conclusory excuse that is belied by the actual facts and is an insufficient reason to adequately 2 demonstrate good cause to modify the scheduling order. Id. at 10. 3 DISCUSSION 4 A. Meet and Confer Requirements 5 Defendants argue that the Motion should be denied because Plaintiffs failed to 6 telephonically meet and confer regarding the Motion and failed to include the prior amendment 7 to the scheduling order. Oppo. at *5. Section III(B) of Judge Major’s Chambers Rules states 8 [b]efore requesting an extension of any date or deadline, the attorneys must “meet and confer” and the request should then be made by filing a joint motion. The 9 joint motion must establish good cause for the request and shall include a declaration from counsel of record detailing the steps taken to comply with the 10 date(s) or deadline(s), the specific reason why the identified deadline cannot be met, and whether any prior extensions or modifications to the Scheduling Order 11 have been requested or approved. A party seeking a modification may move ex parte if the other parties will not join in a motion to amend the schedule. In an ex 12 parte motion, the declaration must address the steps counsel took to meet and confer with opposing counsel to obtain authorization to file a joint motion, as well 13 as the subjects required for the joint motion.4 14 Plaintiffs’ counsel only discussed the requested extension with counsel for Defendants via email, 15 and not by telephone or in person. Marshall Decl. at ¶ 15. Plaintiffs’ counsel’s declaration does 16 indicate that meet and confer efforts occurred regarding the filing of the instant Motion, but fails 17 to specifically identify the steps taken to meet and confer. Beck Decl. at ¶ 8. However, the Court 18 declines to deny Plaintiffs’ Motion based on Plaintiffs’ failure to meet and confer via telephone 19 as they did attempt to obtain Defendants’ consent to file a joint motion prior to bringing the 20 instant Motion. 21 B. There is No Good Cause to Amend the Scheduling Order 22 The Court finds that Plaintiffs have not demonstrated good cause or reasonable diligence 23 such that a modification of the scheduling order deadline is warranted for several reasons. 24 Plaintiffs’ main argument is that they were unable to comply with the original deadline 25 for supplemental expert contradictory/rebuttal reports because Defendants’ expert reports 26 totaled 381 pages. The mere fact that there were five expert reports and that the total number 27 1 of pages in all of the reports was 381 does not establish an inability to comply with the court’s 2 deadline or good cause to extend the deadline. See Burton v. Fonseca, 2023 WL 2717326, *3 3 (D. Nev. Mar. 30, 2023) (declining to amend the operative scheduling order to extend deadline 4 for defendant to provide supplemental expert contradictory/rebuttal reports despite defendant’s 5 expert’s claim they could not “prepare the report in the given timeframe.”). The scheduling order 6 provided the standard 30-days for designation of supplemental expert contradictory/rebuttal 7 reports pursuant to Fed. R. Civ. Proc. 26(2)(D)(ii). Plaintiffs state that they provided the 8 Defendants’ experts’ reports to their experts “immediately upon receipt” [Beck Decl. at ¶ 7] and 9 argue that the length and alleged complexity of the Defendants’ experts’ reports and the fact 10 that Plaintiffs’ experts had to attend depositions prevented their supplemental expert 11 contradictory/rebuttal reports from being timely. However, Plaintiffs do not provide facts to 12 support their argument. They do not explain what efforts their experts made to comply with 13 the current deadline or provide any facts supporting the assertion that the reports were too 14 lengthy and complex to address in the allotted time period or why the 2-3 days of deposition 15 testimony made it impossible to respond in a timely manner. Moreover, as noted by Defendants, 16 on February 26-27, 2024, a week before the deadline at issue in this dispute, Plaintiffs’ expert, 17 Dr. Qato, testified at her deposition that she had only “quickly scanned” Defendants’ reports 18 prior to her deposition but “didn’t review them.” Oppo. at *11; Marshall Decl. at ¶ 18. As such, 19 Plaintiffs have not established that they were reasonably diligent in their efforts to comply with 20 the Court’s scheduling order and have not established good cause to continue the requested 21 deadline. See Hernandez v. Winstar Properties, Inc., 2017 WL 3741258, at *2 (C.D. Cal. Aug. 22 30, 2017) (finding no good cause to modify the scheduling order where the defendant’s expert 23 claimed he had inadequate time to prepare a meaningful report, but plaintiffs provided their 24 reports in a timely manner). 25 Plaintiffs also do not provide an explanation for their delay in requesting an extension of 26 the deadline for supplemental expert contradictory/rebuttal reports. The scheduling order in its 27 current form has been in place for over eight months and Plaintiffs offer no explanation as to 1 such as this. If Plaintiffs’ experts began to review the reports immediately upon receipt, 2 || Plaintiffs would have had a month to request the extension now sought, and nearly three weeks 3 || to review Defendants’ expert’s reports prior to Plaintiffs’ experts’ depositions. Instead, Plaintiffs 4 || waited until the day of the deadline to request the extension without any explanation as to why 5 || they delayed for so long. See Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 493 6 ||(C.D. Cal. 1995) (denying ex parte motion as plaintiff delayed in requesting relief, therefore 7 || causing the crisis that necessitated the ex parte relief). That is not reasonable diligence. 8 Finally, the Court also finds that granting the Plaintiffs’ Motion may prejudice Defendants. 9 ||See Johnson, 975 F.2d at 609 (“[T]he existence or degree of prejudice to the party opposing 10 ||the modification might supply additional reasons to deny a motion.”); Hendrix_v. Novartis 11 || Pharmaceutical Corp., 2013 WL 12124091, at *2 (C.D. Cal. Aug. 17, 2013) (Indeed, any party— 12 the Court—is prejudiced by a tardy expansion of the case.”). Plaintiffs assert that 13 ||“Defendants have not claimed that the requested modification to the scheduling order will 14 || prejudice them. Nor do Plaintiffs see any potential prejudice.” Beck Decl. at 4 11. Defendants 15 || argue that they will be “severely prejudiced if Plaintiffs’ relief if granted” as “Defendants would 16 to contend with and re-depose Plaintiffs’ experts on completely new reports[.]|” Oppo. at 17 || *8-9. The Court agrees with Defendants that the requested modification to the scheduling order 18 || may prejudice Defendants and likely would impact the remaining court deadlines. 19 CONCLUSION 20 For the reasons set forth above, Plaintiffs’ Motion is DENIED. Plaintiffs have not 21 || established reasonable diligence or good cause for the requested continuance. Plaintiffs must 22 || produce the reports no later than tomorrow, March 12, 2024. The deadline to complete expert 23 discovery is continued to May 8, 2024. All other deadlines and requirements remain as 24 || previously set. See ECF No. 65 at *2. 25 IT IS SO ORDERED. 26 || Dated: 3/11/2024 lobe Mager 27 Hon. Barbara L. Major United States Maqistrate Judde 28