Case 1:15-md RBK-JS Document 179 Filed 10/27/15 Page 1 of 13 PageID: 5027 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

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1 Case 1:15-md RBK-JS Document 179 Filed 10/27/15 Page 1 of 13 PageID: 5027 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY IN RE: BENICAR (OLMESARTAN) * MDL 2606 PRODUCTS LIABILITY LITIGATION * * THIS DOCUMENT RELATES TO * JUDGE ROBERT B. KUGLER ALL CASES * * MAG. JUDGE JOEL SCHNEIDER PROPOSED JOINT AGENDA AND REPORT FOR 28 OCTOBER 2015 STATUS CONFERENCE A. 10:00 AM Session before Judge Schneider 1. Document Production Schedule DEFENDANTS POSITION: Defendants estimate a 16-month schedule is required to produce these categories of documents: (1) documents from the 86 Daiichi U.S. and Forest custodians; (2) documents from the 54 Japan custodians; and (3) the non-custodial categories of documents (as detailed below). This schedule, which estimates production at a rate of two-to-four million pages per month, is ambitious but achievable. This production rate is higher than the other MDLs referenced during the October 16 telephone conference with the Court. The enormous volume of documents is based on Plaintiffs growing and ever-changing demands relating to custodians (presently 216 custodians, excluding the 58 newly proposed Japanese custodians and another dozen or more newly proposed U.S. custodians), search terms (606 variations), non-custodial documents, and systems. One hundred English language and 50 Japanese language reviewers are working full time on this body of documents. Defendants also are collecting documents and data from the 76 1

2 Case 1:15-md RBK-JS Document 179 Filed 10/27/15 Page 2 of 13 PageID: 5028 newly identified Daiichi U.S. and Forest custodians, and will provide a reasonable estimate relating to productions once the volume of documents is known. To date, Defendants have produced approximately eight million pages of documents in discovery. Based on the Court orders and Plaintiffs demands, in the next 120 days Defendants plan to produce over 10 million additional pages of documents in the following categories: rolling production for 216 custodians; 9,500 adverse event reports; documents relevant to the DOJ subpoena; foreign regulatory documents; DSC development files, DSC complaint files, DSC regulatory submissions; 2010 ROADMAP study trial master file documents (approximately 1.5 million pages of paper documents which are located in Germany); file share data; system data; DFS documents; and other categories of documents. See Letters to Judge Schneider, October 14, 2015 and October 21, 2015 The parties met and conferred on October 19, 22, and 26, 2015, and Plaintiffs refused to reduce the requests, reduce the custodians, or eliminate search terms. Around 4:30 p.m. on October 22, plaintiffs finally provided a list of custodians they wish to prioritize. This won t reduce the time discovery takes, it will simply give plaintiffs what they want most sooner. Given the facts here, the time for document production is reasonable if not aggressive. The process takes so long because the plaintiffs want so much, not because of anything the defendants are doing for their own purposes. PLAINTIFFS POSITION: Plaintiffs have attempted to meet and confer with the Defendants regarding the production of discovery, but Defendants have refused to provide important information to the Plaintiffs, making it impossible for Plaintiffs to fully understand the true status of the Defendants document productions. Defendants have not justified their repeated demands that Plaintiffs agree to modify the agreed search terms, or to forego important discovery. In fact, it 2

3 Case 1:15-md RBK-JS Document 179 Filed 10/27/15 Page 3 of 13 PageID: 5029 appears that the primary reason that the custodial productions are not being produced more quickly is the Defendants reviews for their own purposes, including relevancy reviews and coding of documents for their own litigation purposes. Plaintiffs believe that the Defendants can produce documents far more efficiently and quickly than predicted, if they are ordered to forego steps that are not productive and to meet aggressive deadlines. Notwithstanding, Plaintiffs have agreed to prioritize the production of custodial documents, providing a list of 27 custodians to be prioritized from the initial lists of 86 US custodians and 55 Japanese custodians. Plaintiffs have also agreed to staged productions of documents from the 75 additional US custodians, with the documents from the servers to be produced initially, and the documents from the laptops and paper documents to be produced in a secondary phase within a reasonable period following the initial phase of production. Plaintiffs are also working to prioritize the production of non-custodial files and documents, including for example sharepoints and databases, and have identified specific databases/applications that are presumably in line for production and requested they be produced on a priority basis. In further efforts to prioritize discovery, Plaintiffs have requested identification and production of a discrete set of adverse event reports and source files referenced in a November, chain regarding internal concern over a number of Celiac cases, and information regarding the ROADMAP Trial Master File to expedite discovery of the critical features such as the patient level case report forms ( CRF s ), which have been requested, draft and final protocols and study reports, data compilations and analyses, tables, and other critical features. Plaintiffs expect that the parties will continue to exchange proposals and information prior to the hearing. 3

4 Case 1:15-md RBK-JS Document 179 Filed 10/27/15 Page 4 of 13 PageID: Newly Identified Japan Custodians DEFENDANTS POSITION: Plaintiffs identified 58 new Daiichi Sankyo Company, Limited (DSC) Japan custodians on October 19, 2015, essentially doubling the current list of 54 DSC custodians. This would bring the number of total custodians in this litigation to 275 people. This is not a reasonable number in accordance with Court s instruction at the October 16, 2015 teleconference. Moreover, Plaintiffs provided no information as to where these additional 58 names came from or citations to the organizational chart, shifting the burden to Defendants to locate and provide a basis to dispute the new custodian requests. Plaintiffs should be required to narrow their list of additional Japan custodians in accordance with the Court s prior instructions, the proportionality principles of Fed. R. Civ. P. 26(b), and the guidelines of the Sedona Conference on Proportionality in Electronic Discovery. PLAINTIFFS POSITION: Plaintiffs carefully reviewed the records available to us, and information from other sources, to compile a list of 58 potential additional custodians to be searched from Daiichi Japan. This number is far less than what was presented in connection with Daiichi US. The letter serving the list asked the Defendants to advise us as to any custodians they had questions or concerns about, with the expectation that we would meet and confer as necessary, and reach agreement on the list. Defendants refused to discuss this issue, instead demanding that Plaintiffs serve a written explanation of the basis for including each potential custodian. Plaintiffs advised that we remain ready to have a discussion in order to facilitate agreement, and we remain willing to do so. A call took place on October 27, 2015 in the afternoon. We will be prepared to engage in a detailed discussion with the Court and counsel at the hearing. 4

5 Case 1:15-md RBK-JS Document 179 Filed 10/27/15 Page 5 of 13 PageID: Deposition Protocol and Deposition Plan DEFENDANTS POSITION: Defendants sent Plaintiffs a proposed Deposition Protocol on October 6, On October 16, 2015, Plaintiffs returned a redline version of the Protocol. The parties will meet and confer on plaintiffs proposed changes to the Protocol and report to the Court on the areas of disagreement. There are a number of important and fundamental areas of disagreement between the parties that will require a briefing schedule. As of October 22, Plaintiffs have not yet provided Defendants with a Proposed Deposition Plan as directed by the Court. It is Defendants view that the number of depositions should be limited to 5 individual depositions and 5 30(b)(6) depositions per each of the three defendant groups (U.S. Daiichi, Japan Daiichi and Forest). Defendants do not agree with Plaintiffs suggestion for scheduling. The traditional method which has worked without a hitch in all other MDLs should be employed here the plaintiffs supply a list of the people they want to depose 60 to 90 days before the deposition period, and the defendants offer dates for those depositions. PLAINTIFFS POSITION: The parties conferred on October 26, 2015, reaching agreement on certain contested provisions. A number of provisions will need to be determined by the Court. For example, Plaintiffs included language to ensure that counsel and witnesses will cooperate during depositions and eliminate obstruction and delay. Plaintiffs disagree with Defendants proposal to prematurely set limits, especially the unreasonably small limits provided, on the number of corporate witness depositions. Plaintiffs do not see the need for briefing. 5

6 Case 1:15-md RBK-JS Document 179 Filed 10/27/15 Page 6 of 13 PageID: 5032 Based on the assumption that Defendants will produce documents at a rapid and steady pace, Plaintiffs believe that depositions of corporate witnesses should begin on February 1, 2016, with the parties to set aside dates now for the depositions, with the deponents to be assigned to the pre-set dates as discovery progresses. A schedule for expert depositions will be dependent on the deadlines to be set for expert reports. 4. Diversity Jurisdiction DEFENDANTS POSITION: Plaintiffs who reside in New Jersey continue to file their complaints in the MDL where no diversity exists. These plaintiffs should be required to dismiss their Complaints and re-file in an appropriate venue. Case No. Plaintiff name Plaintiff counsel Town and State of Residency 1:15-cv Ashley Arguelles Golomb and Honik Passaic, NJ 1:15-cv Constance Douglass Golomb and Honik Jersey City, NJ 1:15-cv Kevin Graham McEwen Law Firm, LTD Williamstown, NJ 1:15-cv Raymond Romsdahl Orlando Firm, P.C. Lambertville, NJ 1:15-cv Lourdes Vigier McEwen Law Firm, LTD Scotch Plains, NJ 1:15-cv Sharon Leone- Deitch, 1:15-cv Irma Marrero Golomb and Honik, P.C. Golomb and Honik, P.C. Ventnor, NJ Newark, NJ 6

7 Case 1:15-md RBK-JS Document 179 Filed 10/27/15 Page 7 of 13 PageID: 5033 The Golomb & Honik law firm has agreed to dismiss their four cases which lack diversity jurisdiction and refile them in New Jersey State court but have not yet done so and Defendants have not heard from the other firms who were notified of the lack of diversity early this month. PLAINTIFFS POSITION: Plaintiffs leadership has notified all Plaintiffs counsel of this issue. 5. Objections to Plaintiff Fact Sheets Notwithstanding Plaintiffs lead counsels representations, Defendants are receiving increasing numbers of Plaintiff Fact Sheets with objections to questions. For example, in a Fact Sheet received from the Abbott Law Group, in response to the question Do you allege spruelike enteropathy?, plaintiff did not answer and instead stated Plaintiff objects insofar as this question is vague and seeks a medical expert opinion, and further reserves the right to supplement the answer based on subsequent discovery. As Plaintiffs and the Court have agreed, a plaintiff cannot object to Plaintiff Fact Sheet questions and all questions must be answered. Defendants respectfully request entry of an order stating that no objections are permitted and all questions must be answered. 6. Defendants PFS Deficiency Notices Defendants Position: Core deficiency letters are sent in cases which are lacking the basic information necessary to prepare a DFS. Not a single plaintiff has challenged a core deficiency letter. Defendants should not have to go to the expense and time of producing a DFS where the plaintiff has not demonstrated that he or she has used the Product or had the event, as the Court Order 7

8 Case 1:15-md RBK-JS Document 179 Filed 10/27/15 Page 8 of 13 PageID: 5034 recognizes, nor can a DFS be completed without basic information about the prescribing physician. Defendants will be prepared to discuss this issue further with the Court if necessary. Plaintiffs Position: Defendants have been serving deficiency notices, stating that a Plaintiff has not adequately claimed or documented sprue-like enteropathy. These criticisms are misplaced in many cases, since the plaintiffs have in those cases alleged sprue-like enteropathy, and documented clinical symptoms such as diarrhea and abdominal pain, which are claimed to be due to the intestinal condition. Defendants also state that they reserve additional deficiencies for later. These practices should stop, with only substantial deficiencies raised, and with no reservation of deficiency notices for a later date, so that Defendants will timely serve their DFS s. Plaintiffs also see this tactic as an effort by the defense to artificially narrow the scope of cases in this MDL, despite the fact that this Court has previously stated that the definition of cases in this MDL is broad. Plaintiffs leadership has been informed that deficiency letters have been challenged. 6. Production Log Issue Defendants Position: The weekly production index provides all information required by the ESI Protocol, specifically: the date, Bates ranges, source of documents for each Bates range (e.g., custodian, database), document or discovery request responded to, and date of withdrawal of protected designation and replacement of document or image with no protected designation, where applicable. To the extent that Plaintiffs are now again demanding that Defendants prepare a documentby-document source identification index, such an undertaking is overly burdensome, expensive, time consuming, and outside Defendants obligations under the ESI Protocol. Plaintiffs can identify this information themselves using the agreed-upon 68 metadata fields that Plaintiffs demanded for each individual document, including CUSTODIAN, DUPLICATE_CUSTODIANS and AUTHOR. 8

9 Case 1:15-md RBK-JS Document 179 Filed 10/27/15 Page 9 of 13 PageID: 5035 Defendants have repeatedly told Plaintiffs, as far back as December 2014 when negotiations related to the ESI protocol began, and as recently as October 22, 2015, that they would not provide a document-by-document source identification index. Plaintiffs Position: The ESI Protocol provides for the Defendants to provide a production log, updated with every production. Among other things, the log is supposed to set forth the source of the documents identified, for example which custodian, sharepoint, database, or other specific source the documents came from. Plaintiffs are not requesting a document by document index, since documents are/should be produced in groups for particular custodians, databases, and other sources. Instead, the Defendants are simply identifying the source in generic terms, i.e. custodial documents, custodial electronic mail, Marketing. This is in violation of the ESI Protocol, and fails to provide Plaintiffs with important information both to prioritize and assign documents for review, and to have the detailed information regarding each production that was negotiated and intended. Plaintiffs request that this deficiency be remedied immediately and on a going forward basis. B. 2:00 PM Session before Judge Kugler and Judge Schneider 1. Report on Docket. Defendants Position: There were 1,118 complaints on file with the clerk s office as of October 26,, 2015, and the U.S. Daiichi defendants had been served with 656 complaints. 2. State Court Litigation. There are currently 65 cases pending in the New Jersey MCL. Judge Nelson C. Johnson, J.S.C. has scheduled a telephone conference for November 12, 2015 at 11:00 A.M. 9

10 Case 1:15-md RBK-JS Document 179 Filed 10/27/15 Page 10 of 13 PageID: Plaintiff Fact Sheets. Defendants Position: As of October 23, 2015, 270 PFSs have been received. Of the 63 which have gone through the core deficiency review process, approximately one third do not have medical records showing plaintiff had sprue like enteropathy or something close and/or do not have pharmacy records showing that an olmesartan medicine was dispensed. At the request of Mr. Slater and Mr. Coffin at the last conference, they are now copied on all the core deficiency letters. Further, Mr. Slater and Mr. Coffin have their own mail box sent up to receive copies of all PFSs; Defense Counsel is aware of this because some Plaintiff lawyers copy the database on service s. Plaintiffs Position: Plaintiffs leadership has not seen the PFS responses alluded to by Defendants. Plaintiffs are concerned that Defendants are not reading the PFS requests in a reasonable fashion, and are seeking to create issues to delay the service of DFS s. For example, it is difficult to interpret what the defense means in referencing sprue like enteropathy or something close. Plaintiffs lead counsel do not read the PFS s as they are submitted to the PSC repository. 4. Bellwether Selection Process The parties have submitted separate orders for the Bellwether Selection Processes. The parties met and conferred on this issue on October 15 and 26, The parties have submitted competing proposals with this Agenda. (Plaintiffs proposal as Exhibit 1, Defendants proposal as Exhibit 2). 5. Service on Daiichi Japan Defendants Position: 10

11 Case 1:15-md RBK-JS Document 179 Filed 10/27/15 Page 11 of 13 PageID: 5037 Service by is not required by any rule, law or treaty and this is the first litigation we are aware of which has tried it. Defendants decline to extend this to the Japanese defendant, having already relieved Plaintiffs of their obligations under the Hague Convention. Defendants further object to the entry of a Court order with instructions on how to serve the Japanese defendant. Plaintiffs Position: Plaintiffs have asked Defendants to agree to service on Daiichi Japan in accordance with the recent Order providing for service on Daiichi US, and Forest. Defendants previously agreed that service upon Daiichi Japan via certified mail will be accepted, once service was made via Hague Convention in one case, which has been completed. Daiichi Japan has refused to now accept service via , in accordance with the procedure now in place for the other defendants, without explanation. This step would simplify service of process, through a uniform process for all Defendants, and allow the cases to move forward more efficiently. In either case, Plaintiffs request entry of an Order so that counsel will know the proper method of service, and address. 6. Medical Records The parties are meeting and conferring on medical record collection processes. 7. Dismissals Without Prejudice Defendants Position: All dismissals of improvidently filed cases should be with prejudice. Defendants object to the plaintiffs process which simply leads to red shirting of cases. Plaintiffs Position: Plaintiffs initiated discussions with Defendants regarding cases that Plaintiffs may want to voluntarily dismiss. In order to avoid motion practice, Plaintiffs proposed a procedure wherein a 11

12 Case 1:15-md RBK-JS Document 179 Filed 10/27/15 Page 12 of 13 PageID: 5038 plaintiff may voluntarily dismiss a case without prejudice. This would streamline the litigation. To date, Defendants have not agreed. 8. Entry of Case Management Order Implementing DFS Defendants Position: Defendants understand that the Court does not view the implementation order as being necessary. Plaintiffs Position: The plaintiffs request entry of the case management order and attached Defendants Fact Sheet submitted to the Court as agreed, implementing the DFS. This is needed so that all counsel can reference the Order and the form of DFS, and this can be placed on the Court s website. Dated: October 27, 2015 Respectfully Submitted, /s/ Susan M. Sharko Susan M. Sharko susan.sharko@dbr.com Lead Counsel for the Defendants DRINKER BIDDLE & REATH LLP 600 Campus Drive Florham Park, NJ PH: (973) FAX: (973) /s/ Michael C. Zogby Michael C. Zogby michael.zogby@dbr.com Defendants Liaison Counsel DRINKER BIDDLE & REATH LLP 600 Campus Drive Florham Park, NJ PH: (973) FAX: (973)

13 Case 1:15-md RBK-JS Document 179 Filed 10/27/15 Page 13 of 13 PageID: 5039 /s/ Christopher L. Coffin Christopher L. Coffin Co-Lead Counsel for the Plaintiffs Pendley, Baudin & Coffin, L.L.P Poydras Street, Suite 1400 New Orleans, LA PH: (504) FAX: (504) /s/ Adam M. Slater Adam M. Slater Co-Lead Counsel for the Plaintiffs Mazie Slater Katz & Freeman LLC 103 Eisenhower Parkway Roseland, New Jersey PH: (973) FAX: (973) /s/ Richard M. Golomb Richard M. Golomb Liaison Counsel for Plaintiffs GOLOMB & HONIK 1515 Market Street, Suite 1100 Philadelphia, PA PH: (215) FAX: (215)

14 Case 1:15-md RBK-JS Document Filed 10/27/15 Page 1 of 4 PageID: 5040 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE : IN RE: BENICAR (OLMESARTAN) : CIVIL NO (RBK)(JS) PRODUCTS LIABILITY LITIGATIO N : : HON. ROBERT B. KUGLER : THIS DOCUMENT RELATES TO : HON. JOEL SCHNEIDER ALL ACTIONS : [PROPOSED] CASE MANAGEMENT ORDER NO. BELLWETHER SELECTION PROTOCOL THIS MATTER, having come before the Court for consideration of the Parties proposed bellwether selection protocol; and the Court having considered the Parties submissions, and having heard the arguments of counsel; IT IS HEREBY ORDERED that the Parties shall proceed as set forth below in selecting cases consolidated within MDL No for inclusion in the Bellwether Discovery Pool and Bellwether Trial Pool. 1. The Initial Bellwether Discovery Pool shall consist of eighteen (18) cases. Those eighteen (18) cases shall be selected as follows: (a) Plaintiffs Counsel and Defense counsel shall each identify nine (9) cases for inclusion in the Initial Bellwether Discovery Pool. A case is eligible for inclusion in the Initial Bellwether Discovery Pool if Plaintiff s counsel has served the Plaintiff s Fact Sheet in the case on the Defendant by December 1, 2015, and the case is representative of those cases in the MDL litigation.

15 Case 1:15-md RBK-JS Document Filed 10/27/15 Page 2 of 4 PageID: 5041 (b) On or before February 1, 2016, Plaintiffs will select nine (9) cases to be included in the Initial Bellwether Discovery Pool and will send their selections in list format (including Plaintiff name and MDL Docket No.) to the Defendants Counsel and the Court. Plaintiffs selections must be distributed so that no Plaintiff firm is primary counsel for more than two (2) cases among the Plaintiffs Initial Bellwether Discovery Pool selections. (c) On or before February 1, 2016, Defendants will also select nine (9) cases to be included in the Initial Bellwether Discovery Pool and will send their selections in list format (including Plaintiff name, law firm, and MDL Docket No.) to Plaintiffs Co-Lead Counsel and the Court. Defense selections must also be distributed so that no Plaintiff firm is primary counsel for more than two (2) cases among the Defendants Initial Bellwether Discovery Pool selections. 2. Discovery in the eighteen (18) Initial Bellwether Discovery Pool selections will be conducted as follows: (a) Between February 1, 2016 and June 1, 2016, the eighteen (18) cases selected by the parties for inclusion in the Initial Bellwether Discovery Pool shall engage in initial discovery, to be limited to a maximum of the following depositions for each case: the Plaintiff, Plaintiff s primary prescribing physician, Plaintiff s primary diagnosing or treating physician, and one sales representative. This limited initial discovery

16 Case 1:15-md RBK-JS Document Filed 10/27/15 Page 3 of 4 PageID: 5042 shall be designed to, among other things, provide the parties with information to assist them in assessing each case in the pool of cases and, consistent with paragraph four (4) below, to provide the Court with information to enable it to select which cases are representative cases that shall continue on to the next phase of bellwether discovery. 3. On July 1, 2016, the parties shall simultaneously file their proposed lists of six (6) cases each from the Initial Bellwether Discovery Pool to proceed to the Bellwether Trial Pool. Along with the lists, the parties shall provide, by letter brief, a description of each case, including the facts which establish that the case is representative of those cases eligible to be selected for inclusion as a Trial Pool case. These letter briefs shall not exceed two (2) pages per case. On August 1, 2016, the parties shall simultaneously file their letter briefs in response to the other side s proposed Bellwether Trial Pool selections. These reply letter briefs shall not exceed two (2) pages per case. 4. The Court will then select six (6) cases, three (3) from the Plaintiffs proposed Bellwether Trial Pool selections and three (3) from the Defendants proposed Bellwether Trial Pool selections, to proceed to the Final Bellwether Trial Pool. The Court will also determine the order in which the cases are to be tried, with a Plaintiffs selection to be tried first. 5. Upon selection of the six (6) Final Bellwether Trial Pool cases, the Court shall enter a detailed pretrial schedule to govern discovery in the remaining trial cases (expert reports and depositions, Daubert briefing and oral arguments, summary judgment briefing and oral arguments, etc.).

17 Case 1:15-md RBK-JS Document Filed 10/27/15 Page 4 of 4 PageID: In the event Plaintiffs voluntarily dismiss a case within the Final Bellwether Trial Pool, Plaintiffs shall inform the Court of such dismissal, in writing, no later than three (3) days following the date the notice of dismissal is filed. Upon learning of the dismissal, the Court shall select a replacement case from the six (6) cases that remained in the Bellwether Trial Pool at the time the Court selected the Final Bellwether Trial Pool cases. SO ORDERED this day of, HONORABLE ROBERT B. KUGLER UNITED STATES DISTRICT JUDGE

18 Case 1:15-md RBK-JS Document Filed 10/27/15 Page 1 of 2 PageID: 5044 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE IN RE: BENICAR (OLMESARTAN) PRODUCTS LIABILITY LITIGATION * CIVIL NO (RBK)(JS) * HON. ROBERT B. KUGLER THIS DOCUMENT RELATES TO ALL ACTIONS * * HON. JOEL SCHNEIDER **************************************** CASE MANAGEMENT ORDER NO. IT IS HEREBY ORDERED, with consent of all Parties, that the Bellwether case selection process shall be follows: pool. 1. All cases filed by December 31, 2015, shall be eligible for the first bellwether case 2. On January 7, 2016, the Court shall randomly select 24 cases on file. These selected cases shall constitute the Bellwether Pool. Plaintiffs in the Bellwether Pool will have 45 days to serve the complaint if not already served and to serve and or amend and update a completed Plaintiff Fact Sheet and medical records authorizations as required by Case Management Order No Each side shall strike four cases from the Bellwether Pool. Those cases shall not be replaced, thus leaving a Bellwether Pool of 16 cases. 4. Any Bellwether Pool case which is voluntarily dismissed by the plaintiffs before January 31, 2016, but after the striking process in paragraph 3 will be replaced with another case selected by the Court by random draw from the cases on file with the Court as of that date. 5. Any dismissal of a Bellwether Pool case other than through the strike process in paragraph 2, must be with prejudice. No without prejudice dismissals of a Bellwether Pool case will be permitted. 6. Any Bellwether Pool case which is voluntarily dismissed by the plaintiffs after January 31, 2016, will be replaced by another case selected by the Court by random draw from the cases on file with the Court as of that date. Plaintiffs counsel shall be responsible for the payment of defense costs and fees in the work up of the case incurred on or after January 7, From March 15 to September 15, 2016, the parties may depose the plaintiffs and spouse or domestic partner (whether or not a named plaintiff), a prescribing physician, a treating

19 Case 1:15-md RBK-JS Document Filed 10/27/15 Page 2 of 2 PageID: 5045 physician and one detail representative who called on the prescribing physician within the five years before the plaintiff s first prescription of an olmesartan product. 8. On September 30, 2016, each side may strike four cases from the Pool. The Court will then randomly select four cases from the remaining eight cases to be the first four trial cases to be tried as individual cases in an order to be determined by the Court, with a discovery plan/order to be entered thereafter. 9. Cases will be tried one after another, with a reasonable interim between trials, in the order of the draw. Robert B. Kugler, U.S.D.J /510357