ORDER

DAVID R. HERNDON, District Judge.

A dispute has arisen between the parties regarding the requirements under CMO 83, Section III(5).1 Under Section III.4, case-specific fact discovery concluded September 22, 2016, or 150 days after CMO 83's Effective Date. Under Section III.5, "[p]laintiffs' additional case-specific expert reports . . ., if any, shall be served no later than 30 days after the conclusion of case-specific fact discovery." This put the deadline for any additional case-specific expert reports on Monday, October 24, 2016.

Bayer understands the October 24, 2016 deadline to apply to all of plaintiffs' additional case-specific expert reports, if any. Plaintiffs understand the deadline to apply only to case-specific causation reports and have informed Bayer that they intend to serve additional expert reports on damages after remand. Bayer maintains that such post-remand expert discovery would be untimely under CMO 83 and that all expert discovery should be conducted before this Court in advance of any remand.

Plaintiffs urge the Court to interpret CMO 83 in the context of CMOs previously entered in this MDL. Doing so, the plaintiffs argue, demonstrates that the overall purpose of CMO 83 is to further develop fact and expert witness discovery relevant to the filing of Daubert and/or summary judgment motions on causation prior to remand. Additionally, plaintiffs comment that, when considering remand, the general custom is to allow further non-dispositive case specific fact discovery to occur after remand.

The Court agrees that customarily case-specific discovery is accomplished following remand. However, that custom generally includes all case-specific discovery not just damages or a portion of damages. Obviously, this is not what was contemplated by CMO 83. Further, CMO 83 should not be interpreted in the context of previous CMOs. Rather, CMO 83, an agreed to order of the parties adopted by the Court, must be viewed in the context of the parties' mutual agreement that this Court preside over the case-specific discovery. The Court and the parties agreed to proceed in this manner in order to ensure that when a case is remanded, it is remanded ready for trial. The plain language of CMO 83 memorializes this goal and bellies the plaintiffs' claims to the contrary: "[T]his Order establishes a schedule for the efficient progress of those cases to be prepared for trial. All such work-up shall be conducted before this Court prior to the Court entertaining any motion for remand."

The Court further notes that CMO 83 provides a path for relief from its strict application. See CMO 83 Section III.11. It does not appear that the plaintiffs have utilized this procedure.

Accordingly, the Court finds that Bayer's interpretation of CMO 83 is the correct one: Under CMO 83 all expert discovery should be conducted before this Court in advance of any remand.

IT IS SO ORDERED.

Dear Judge Herndon:

I am writing on behalf of the Bayer defendants to ask for clarification of the requirements under CMO 83.

Under Section III.4, case-specific fact discovery concluded September 22, 2016, or 150 days after CMO 83's Effective Date. Under Section III.5, "[p]laintiffs' additional case-specific expert reports . . ., if any, shall be served no later than 30 days after the conclusion of case-specific fact discovery." This put the deadline for any additional case-specific expert reports on Monday, October 24, 2016.

Bayer understands the October 24, 2016 deadline to apply to all of plaintiffs' additional case-specific expert reports, if any. CMO 83 does not contain any subject matter limitation.

Plaintiffs' counsel in the Blasius and Evans matters, after initially saying they would file a motion for an extension to file a damages report (see Ex. 1), takes the positon that CMO 83 applies only to expert reports on causation, indicating that they intend to serve additional expert reports on damages after remand. See Ex. 2. Bayer's view is that such post-remand expert discovery would be untimely under CMO 83 and that all expert discovery should be conducted before this Court in advance of any remand.

We therefore request clarification from the Court whether the October 24, 2016 deadline for plaintiffs' additional case-specific expert reports under CMO 83 applies only to expert reports on causation, as plaintiffs contend, or to all additional case-specific reports, as Bayer interprets the order. In the latter case, Bayer has already indicated to plaintiffs that it would not oppose a reasonable extension of time for them to serve any additional reports.

Dear Judge Herndon:

Please accept this letter in response to Bayer defendants' November 10, 2016 letter asking for clarification of the requirements under CMO 83.

I am one of the attorneys representing Plaintiffs in the above matters, and I have been primarily responsible for handling case-specific discovery. As a preliminary matter, the Parties have been actively engaged in discovery. Plaintiffs have provided updated Plaintiff Fact Sheets and/or updated authorizations pursuant to CMO 83, Section III(2); the Parties have taken the depositions of the plaintiffs, relatives of the plaintiffs, certain medical providers identified in the Plaintiff Fact Sheets, and/or Bayer's sales representatives; and Plaintiffs have also provided case-specific causation expert reports.

I have communicated with counsel for Bayer regarding case-specific discovery deadlines and have explained that I interpret CMO 83, Section III(5) to apply only to case-specific causation reports. I have interpreted CMO 83 in this manner for several reasons.

First, CMO 83 incorporates by reference the Court's previous CMO 79, which required Plaintiffs to provide case-specific causation expert reports pursuant to Rule 26(a)(2). Second, taken in the context of CMOs 78 and 79, the remaining cases subject to CMO 83 are non-participating ATE cases, negotiation track VTE cases, and other non-VTE and non-ATE injury cases or "other cases." Thus, the overall purpose of CMO 83 appears to be to further develop fact and expert witness discovery relevant to filing Daubert and/or summary judgment motions on causation prior to remand. Third, because Plaintiffs' cases involve cardiac arrhythmia injuries, Plaintiffs understood the purpose of CMO 83 to be to further vet the viability of such cases on Daubert and summary judgment. Fourth, Plaintiffs understand that when considering remand, the general custom is to allow further non-dispositive case specific fact discovery to occur after remand. Therefore, Plaintiffs assumed the Court's intention was to have the Parties devote their time and resources to case specific causation fact and expert discovery in the MDL Court, and if eligible for remand after Daubert and summary judgment motions were heard, that further discovery would be allowed to occur on remand. As such, Plaintiffs interpret CMO 83 to be limited in scope and do not interpret it to include expert reports on damages.

Plaintiffs acknowledge that the Parties have different interpretations regarding the scope of expert disclosures under CMO 83, and as such Plaintiffs also seek the Court's clarification. To the extent Plaintiffs misinterpret the purpose of CMO 83, and in the event all case-specific expert reports are contemplated by CMO 83, including those on damages, Plaintiffs respectfully apologize to the Court for such misinterpretation. In such event, Plaintiffs respectfully request that the Court grant Plaintiffs an extension of time to serve additional expert reports. Defendants have already agreed not to oppose such an extension, and Plaintiffs should not be barred from presenting expert testimony on damages under these circumstances.