IN RE PREMPRO PRODUCTS LIABILITY LITIGATION

WILLIAM WILSON, District Judge

One would have thought that plaintiffs — who allege that they are at increased risk of breast cancer, heart attack, stroke, dementia and more — would have some sense of urgency about getting the medical monitoring they claim is so important to their health. But these plaintiffs appear to be in no more hurry than those plaintiffs in lawyer-driven securities fraud cases who are trying to recover for the slightly diminished value of stock they long ago wrote off in their minds as a loss. It is now almost two and a half years since the Women's Health Initiative study was halted, prompting this spate of lawsuits, and the class plaintiffs continue to dawdle — most recently, concerning the naming of plaintiffs' experts and producing those experts and putative class representatives for deposition.

1. At plaintiffs' request, the Court modified the class certification schedule on July 26, 2004, to give plaintiffs more time to name their experts on class certification issues. The new schedule required plaintiffs to name the experts and produce their reports by August 31.

2. When that deadline was imminent, plaintiffs asked the Court to move it again — to September 14 — and, over Wyeth's objection, the Court did so. On that date, plaintiffs disclosed the names of six experts, but provided reports from only five of the named experts. Even the five reports were not complete. We did not receive a curriculum vitae for one expert until November 4, 2004, and still do not have a listing of the materials on which she relies for her opinions, or of that expert's previous experience as an expert, as Fed.R.Civ.P. 26 requires.

3. We requested deposition dates for the experts. Shortly thereafter, counsel informed us that plaintiffs would have to withdraw one of the experts (Dr. Martino) and asked Wyeth's consent to name a substitute. (Not long after, class counsel advised us that a second expert (Dr. Grady) would be withdrawing.) We agreed, subject to plaintiffs' promptly disclosing the substitute, providing his/her expert report, and offering dates for his/her deposition. We reiterated our request for depositions dates for the remaining experts, saying by e-mail on October 11: "The delay in getting these dates creates a ripple effect of delays, and we want to minimize that."

4. As of the MDL hearing on October 21, more than a month after the revised deadline for disclosing plaintiffs' experts, we did not have a report from the substitute expert and did not have proposed deposition dates for every expert. On October 22, we e-mailed again: "Time's a wasting. We need deposition dates for the experts and the class reps. Plus the expert report for the new guy. Please call."

5. Plaintiffs' counsel then withdrew some of the originally proposed dates and was unable to provide alternatives for the very limited dates offered for some of the experts. For example, Dr. Jockelson's deposition was originally set for October 22; the new alternatives offered were two Saturdays and a Sunday. (We agreed to depose her on a Saturday — a date later canceled by plaintiffs' counsel.) Class counsel still did not have the substitute expert's report.

6. For the next ten days, there was further back-and-forth about alternative dates. Then, on November 11, class counsel advised us that he had to re-schedule all the expert depositions because of a conflict with an unexpected trial setting. As of the filing of this motion, new dates have not yet been offered for the experts, nor do we have deposition dates for any of the putative class representatives.

7. This delay makes it unreasonable for Wyeth to have to disclose experts in December, as the current schedule requires. The earlier July 26 class certification schedule did not require Wyeth to disclose its experts until October 26, two months after plaintiffs' August 31 deadline for naming experts. Wyeth's expectation was that it would depose plaintiffs' experts in September, then have one month to prepare responsive reports. Now — with the prospect that plaintiffs cannot produce all their experts for deposition until sometime in January — Wyeth should not be called upon to name its experts until the end of February, and the follow-on dates should be delayed accordingly (as set forth in the proposed order attached hereto).

8. Even if the schedule had not ground to a halt over plaintiffs' experts, it would still be stalled because class counsel has yet to provide dates when Wyeth can depose any of the fifteen putative class representatives.

In sum, Wyeth should not be penalized by reason of plaintiffs' inability to comply with the schedule. We request that the Court enter the revised schedule set forth in the proposed order. Class Counsel consents to the proposed order, subject to the roll-out of additional documents, but does not necessarily agree with the reasons put forward in this memorandum.