Kessler Sets Trial Schedule: Remedies till June?

April 17, 2005 7:23 pm by Gene Borio

Judge Kessler on Sunday issued Order #924, setting the schedule for production of remedies witnesses, documents and depositions for each side.

She notes in her order that Defense remedies witnesses will be called the week of May 23.

She denied most of the Defense requests for discovery, but allowed limited discovery of Dr. Gruber documents, and extensive discovery for Dr. Fiore documents–but these will be limited to the area of federal government actions in connection with Dr. Fiore’s National Action Plan and the 2004 DHHS quitline, including the cost of implementation, and effectiveness.

Barring pending issues, court will be in recess the week of April 25.

PDF file of Order 924

Text follows of Order 924:

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,

PHILIP MORRIS USA INC.,

f/k/a PHILIP MORRIS INC., et al.,

Defendants.

Civil Action No. v. : 99-2496 (GK)

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ORDER #924

Upon consideration of Defendants’ Motion and Incorporated Points and Authorities Regarding Discovery Necessitated by Plaintiff’s Identification of New Remedies, Witnesses and Evidence, the United States’ Memorandum in Opposition thereto, discussions with the parties in open court, and the entire record herein, it is hereby:

ORDERED that the following procedures and deadlines will apply to the remedies phase of this trial:1

1. No later than 5:00 p.m. on Thursday, April 21, 2005, Defendants shall serve and file an identification of all witnesses it will offer in their remedies case, including a detailed

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1 Parties should understand that, in terms of scheduling, the Court does not know the availability of witnesses for depositions or even how many witnesses Defendants intend to call. Given that situation and the compressed schedule, some flexibility in deadlines may be necessary.

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statement for each witness disclosing the subject matter of the proposed testimony.

2. The Government shall file and serve the written direct testimonies of Dr. Wyant and Surgeon General Carmona no later than 5:00 p.m. on Monday, April 25, 2005. The Government shall file and serve the written direct testimony of Dr. Bazerman no later than 5:00 p.m. on Wednesday, April 27, 2005.2 The Government shall file and serve the written direct testimonies of Drs. Eriksen, Gruber, and Fiore no later than 5:00 p.m. on Monday, May 2, 2005. The Government shall file and serve the written direct testimony of Matthew Myers no later than 5:00 p.m. on Monday, May 9, 2005.

3. No later than 5:00 p.m. on Saturday, April 30, 2005, Defendants shall serve and file expert witness reports for all expert witnesses Defendants seek to call in their remedies case regarding all opinions that have not been previously disclosed and an identification of all materials relied upon by each expert for such opinions. All such reliance materials will be produced to Defendants no later than April 30, 2005. Any quantitative data, formula and programs used and/or relied upon by an expert in connection with newly disclosed opinions shall be produced to the

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2 If the United States elects not to call Dr. Bazerman to testify during the week of May 2, 2005, the the normal Monday filing requirement of Order #471 will apply to his written direct testimony.

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Government in a reasonably accessible and usable electronic format no later than April 30, 2005. All expert reports served and filed by Defendants shall comply with Fed. R. Civ. P. 26(a)(2)(b).

4. The trial will be in recess the week of April 25, unless there are procedural issues and/or evidentiary rulings to be completed.

5. No later than 5:00 p.m. on Monday May 16, 2005, Defendants shall file and serve the written direct testimony of all witnesses they intend to call the week of May 23, 2005.

6. One week prior to the start of the United States’ remedies case-in-chief, the United States shall disclose its proposed order of witnesses pursuant to Order #471, ¶ IV.B.

7. One week prior to the start of Defendants’ remedies case, Defendants shall disclose their proposed order of witnesses pursuant to Order #471, ¶ IV.B.

8. With respect to Dr. Carmona, Defendants’ request for additional discovery is denied.

9. With respect to Dr. Gruber, the United States shall produce the 115 documents authored or received by Dr. Gruber and withheld by the United States on grounds of deliberative process privilege (identified in Attachment A to Defendants’ Proposed Order) no later than 5:00 p.m. on Monday, May 2, 2005. All other discovery requests pertaining to Dr. Gruber are denied.

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10. With respect to Dr. Fiore, the United States shall produce the following documents related to actions taken by the federal government after the February 2003 National Action Plan: (a) Documents that reflect consideration as to whether or not to proceed with the National Action Plan in whole or in part;3 (b) Documents that relate to the decision to implement the November 2004 HHS quitline, including cost analyses; and (c) Assessments or evaluations by the federal government, considered in connection with implementation of the National Action Plan or the HHS quitline, of existing state-sponsored smoking cessation programs and private and government insurance coverage for cessation service.

Such production must be completed by 5:00 p.m. on Monday, May 2, 2005.

The United States shall make Dr. Fiore available for one seven-hour day deposition at least two (2) days prior to his live testimony. All other discovery requests pertaining to Dr. Fiore are denied.

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3 Such documents shall come only from the files of the Interagency Committee on Smoking and Health, the Office of the Surgeon General, the Office of the Secretary of Health and Human Services, the Substance Abuse and Mental Health Services Administration, the Center for Disease Control’s Office of Smoking and Health, and the Health Division of the Resources Management Office for Human Resources Programs of the Office of Management and Budget.

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11. The United States shall make Dr. Eriksen available for a four (4) hour deposition limited to the subject of the four new reliance materials identified on March 21, 2005 related to the opinions he intends to offer on remedies.

12. All depositions shall take place in Washington, D.C. unless otherwise agreed by the parties or ordered by the Court for good cause shown.

IT IS SO ORDERED.

April 17, 2005 /s/

Gladys Kessler

United States District Judge

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