United States District Court, D. Kansas
IN RE EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation (This Order Applies to Consumer Class Cases) MDL No. 2785
MEMORANDUM AND ORDER ADOPTING SCHEDULING ORDER NO.
D. Crabtree United States District Judge
putative class plaintiffs have moved to extend all remaining
deadlines by 90 days. Doc. 1740. Both the Mylan (Doc. 1776)
and Pfizer defendants (Doc. 1782) have filed a Response
opposing the motion. The court heard arguments from counsel
during a telephone conference on August 12, 2019, and, at the
end of the conference, took the motion under advisement. The
court is now ready to rule.
explained in this Scheduling Order No. 9, the court grants
plaintiffs' motion in part and denies it in part. In
summary form, the putative class plaintiffs have shown the
requisite good cause, as Fed.R.Civ.P. 16(b)(4) requires.
See Gorsuch, Ltd. v. Wells Fargo Nat'l Bank
Ass'n, 771 F.3d 1230, 1240-41 (10th Cir. 2014)
(“In practice, [Rule 16's] standard requires the
movant to show the scheduling deadlines cannot be met despite
[the movant's] diligent efforts.” (internal
quotation marks omitted)); Stonebarger v. Union Pac.
Corp., No. 13-CV-2137-JAR, 2014 WL 5782385, at *2 (D.
Kan. Nov. 6, 2014).
provides an example that is important to the court's
analysis here. “Rule 16's good cause requirement
may be satisfied, for example, if a plaintiff learns new
information through discovery . . . .” 771 F.3d at
1240. Plaintiffs have shown that a non-party's recent
production has provided new information that is material to
their case theory. Specifically, Teva Pharmaceuticals
produced documents on June 14, 2019, in response to a
subpoena served by plaintiffs in August 2018. These
documents, plaintiffs plausibly argue, refer to Mylan's
CEO and the alleged pay-for-delay settlement involving-they
contend-Pfizer, Teva, and Mylan. Teva produced these
documents in the final 8, 000-plus page installment of the
“just under [one] half million pages of
documents” that it produced “on a rolling basis
through no [fewer] than 22 individual productions . . .
.” Doc. 1745-1 at 5-6. Plaintiffs didn't control
the pace or sequencing of that production, and Mylan's
arguments to the contrary are not well-taken.
Mylan argues that Teva's recent documents can't
provide good cause to permit more discovery on any subject.
Plaintiffs, they say, haven't shown that they have
discovered the case diligently. See Doc. 1776 at
4-8. This argument is hard to reconcile with defendants'
other arguments about the voluminous discovery record and the
burdensome discovery obligations plaintiffs have forced them
to bear. See, e.g., Doc. 1782 at 1. The case's
docket and progress refute defendants' argument that
plaintiffs haven't discovered the case diligently.
Indeed, the docket convinces the court that counsel on both
sides of the caption have moved with appropriate dispatch and
Mylan and Pfizer's arguments carry the day in other
respects. Namely, they persuade the court that 90 more days
of unfettered, open-season discovery is unwarranted.
Plaintiffs have failed to demonstrate good cause for
permitting discovery to proceed on every front for another 90
days. All things-good or otherwise-indeed must come to an
end. The court thus denies plaintiffs' request for the
broadscale relief requested by their motion. Instead, the
court has decided to permit certain discovery-as
outlined below-for 60 days. The 60 days will begin on August
16 and continue until October 15, 2019. The court starts the
60-day clock on August 16 and not on August 1, 2019, because,
in effect, the discovery window closed on July 31 under
Scheduling Orders No. 2 (Doc. 61) at 3 & 7 (Doc. 1517) at
2. It has remained closed until this Order reopened it on the
limited basis specified by this Order.
these reasons, the court amends the schedule of deadlines
governing this case, as specified below. Unless modified by
this Scheduling Order No. 9, all deadlines established in the
court's earlier Scheduling Orders remain in effect.
ORDER NO. 9
Merits Discovery Deadlines: The court orders that
the following discovery can continue to proceed from August
16, 2019 until October 15, 2019:
(1) discovery regarding any non-privileged matter that is
proportional to the needs of the case and relevant to the
claim or defense of the allegation that the April 2012
settlement of patent infringement claims involving EpiPen and
Nuvigil amounted to a reverse payment or pay-for-delay
(2) depositions and other forms of discovery that the parties
have agreed to conduct after the July 31, 2019 discovery
deadline established by Docs. 61 & 1517. This discovery
includes (but is not confined to) the second deposition of
Heather Bresch (Doc. 1762), Phillip Lieberman, John Wilmot,
Jill Ondos, Joe Haggerty, Tom Jenkins, and Paul Muma.
parties may continue to use Fed.R.Civ.P. 29(b) if
appropriate. The court reminds the parties, however, that any
“stipulation extending the time for any form of
discovery must have court approval if it would interfere with
the time established for completing discovery, for hearing a
motion, or for trial.” Id. The court will not
be available to resolve any disputes that may arise during
any such extended discovery if it does not have court
approval. Also, the court reminds the parties of the 30-day
deadline established by D. Kan. Rule 37.1(b) for filing any
motion to compel.
accommodate the new deadline for completing merits,
non-expert discovery established in this Scheduling Order No.
9, the court extends deadlines for putative expert witnesses
in the class cases. The new ...