IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
FEDERATION OF PHYSICIANS AND
DENTISTS, et al.,
Defendants.
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Case No. 1:05-cv-431
Hon. Sandra S. Beckwith, C.J.
Hon. Timothy S. Hogan, M.J.
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Rule 26(f) Report Submitted by Plaintiff United States and
Defendants Federation of Physicians and Dentists and Lynda
Odenkirk
1. Pursuant to Fed. R. Civ. P. 26(f), a meeting was held on August
19, 2005, and was attended by:
Counsel for Plaintiff: Steven Kramer and John Lohrer
Counsel for Defendants Federation of Physicians and Dentists ("FPD")
and Lynda Odenkirk ("Odenkirk"): Kimberly L. King
2. The parties:
___ have exchanged the discovery disclosures required by
Rule 26(a)(1);
X_ will exchange such disclosures by September 2, 2005;
___ are exempt from disclosure under Rule 26(a)(1)(E); and/or
___ have agreed not to make initial disclosures.
3. The parties:
___ unanimously consent to the jurisdiction of, and entry
of judgment by, the United States Magistrate Judge pursuant to 28
USC 636(c); and/or
X do not unanimously consent to the jurisdiction of and entry
of judgment by the United States Magistrate Judge pursuant to 28 USC
636(c)
4. Recommended cut-off date for filing any motion to amend the pleadings
and/or to add additional parties:
December 29, 2005
5. Is the case appropriate for mediation after a limited discovery
period?
Possibly
Will the parties request the services of a court mediator?
No
Has a settlement demand been made?
Yes. Before filing the Complaint, Plaintiff made an oral
settlement offer to counsel then representing the Federation, who
did not respond to the offer. Since the Complaint was filed, Plaintiff
has outlined terms on which it would enter into settlement discussions
with Defendants Federation and Odenkirk. Defendants Federation and
Odenkirk have not yet had access to the testimony and documents Plaintiff
gathered from other persons pursuant to Plaintiff's pre-Complaint
civil investigative demands. Most or all of those materials are to
be produced by Plaintiff in response to Defendants' upcoming Rule
34 request, subject to a protective order the parties have filed with
the Court for entry. Said Defendants have advised Plaintiff that they
will review and evaluate those materials upon receipt and will present
a settlement proposal to Plaintiff within two weeks after receipt.
Date by which a settlement demand can be made?
Not applicable. Terms of settlement have been outlined
by Plaintiff to Defendants.
Date by which a response can be made to settlement demand?
Defendants FPD and Odenkirk have advised Plaintiff that
they plan to present a settlement proposal to Plaintiff within two
weeks after receipt from Plaintiff of Plaintiff's Rule 34 production.
6. Recommended Discovery Plan:
- Describe the subjects on which discovery is to be sought and the
nature and extent of discovery that each party needs to: (1) make a
settlement evaluation, (2) prepare for case dispositive motions, and
(3) prepare for trial:
- Plaintiff does not need any discovery to make a settlement evaluation.
Defendants do not need any discovery (other than Plaintiff's Rule 34
production) to make a settlement evaluation.
- Plaintiff aims to file a motion for summary judgment by mid-November,
2005, and does not expect that it will need any significant discovery
to prepare for the motion. At this point in time, Defendants expect
that they may need to take a few depositions in order to prepare the
case for dispositive motions.
- To prepare for trial, Plaintiff expects to conduct limited discovery
from the Federation, some medical group members, and perhaps some health
care insurers to help support its allegations of anticompetitive purpose
and concerted action. Such discovery would consist primarily of five
to ten depositions and likely include some interrogatories and requests
for admission. Defendants expect to conduct discovery of representatives
of the health care insurers and physicians identified in the Complaint,
and select other persons who provided information upon which Plaintiff
based its Complaint. At this point in time, Defendants are not able
to evaluate the number of depositions or other discovery activities
that will be necessary in order to prepare its defense.
- What changes should be made, if any, in the limitations on discovery
imposed under the Fed. R. Civ. P. or the S.D. Ohio Civ. Rules, including
the limitations to twenty-five (25) interrogatories, forty (40) requests
for admissions, and the limitation of ten (10) depositions, each lasting
no more than one seven-hour day?
Plaintiff requests three changes in the limitations on discovery to
prepare for trial: First, that it be allowed to take a deposition of
any person on Defendants' witness list, who has not been previously
deposed in this action, even if the resulting total number of depositions
taken would exceed the ten (10) depositions that Plaintiff may take
to support its case involving an alleged conspiracy covering numerous
participants. Second, Plaintiff seeks to be able to depose persons solely
to establish a foundation for admission of evidence, if necessary, without
such depositions counting against the limitation on the number of depositions.
Third, Plaintiff requests the Court's permission to conduct Defendant
Odenkirk's deposition in this action for up to ten (10) hours over two
non-consecutive days if needed. Under this arrangement, Plaintiff stipulates
that Ms. Odenkirk's deposition will be taken in a city or cities designated
by Ms. Odenkirk, which may include Tallahassee, Florida. Defendants
do not object to these requests.
Defendants FPD and Odenkirk request that the limitations on discovery
imposed under the Fed. R. Civ. P. or the S.D. Ohio Civ. Rules, including
the limitations to twenty-five (25) interrogatories, forty (40) requests
for admissions, and the limitation of ten (10) depositions, apply to
each Defendant separately, so that, for example, FPD be allowed to take
ten (10) depositions and Odenkirk be allowed to take an additional ten
(10) depositions. Defendants further request that they be allowed to
take a deposition of any person on Plaintiff's witness list, who has
not been previously deposed in this action, even if the resulting total
number of depositions taken would exceed the twenty (20) depositions
that Defendants may take. Defendants further request that all Rule 30(b)(6)
witnesses produced by a single entity, such as a health insurer, count
as but one deposition (for up to seven hours on the record) for purposes
of these limitations. Under this arrangement, Defendants have agreed
that with respect to the written discovery (interrogatories and requests
for admission) Plaintiff should also have the ability to propound a
total of fifty (50) interrogatories and eighty (80) requests for admission.
Plaintiff does not seek to enlarge the number of deposition it may take
other than in the stipulated manner described in the preceding paragraph.
- Additional recommended limitations on expansions of discovery:
None.
- Describe the areas for which expert testimony is expected and indicate
whether each expert will be specifically retained within the meaning
of Fed. R. Civ. P. 26(a)(2):
Plaintiff seeks to reserve the option to call an expert, retained
within the meaning of Fed. R. Civ. P. 26(a)(2), who would explain that
the alleged conspiracy involves concerted, rather than individual, action.
Defendant seeks to reserve the option to call one or more experts retained
within the meaning of Fed. R. Civ. P. 26(a)(2), who would explain aspects
of health care economics, including the behavior of health care insurers
in procuring health care goods and services, and rebut any expert testimony
offered by Plaintiff.
- Recommended date for identifying primary experts:
February 1, 2006
- Recommended date for producing primary expert reports:
February 28, 2006
- Recommended date for identifying rebuttal experts:
March 17, 2006
- Recommended date for producing rebuttal expert reports:
March 31, 2006
- Recommended discovery cut-off date:
April 14, 2006
- Recommended date for disclosure of all other case-in-chief witnesses:
March 10, 2006
7. Recommended dispositive motion deadline:
January 12, 2006
8. Recommended date for final pretrial conference:
May 12, 2006
9. Recommended date for trial:
June 12, 2006
10. Other matters for the attention of the Court:
- Defendants Warren Metherd, Michael Karram, and James Wendel (the
"Settling Defendants") have entered into Plaintiffs' Stipulation with
Settling Physician Defendants (Dkt. 4), consenting to the entry of a
Final Judgment in the form attached to the stipulation (Dkt. 6), which
will settle all claims against the Settling Defendants. In accordance
with the Antitrust Procedures and Penalties Act, the United States will
file a motion for entry of the Final Judgment once the requirements
of the Act have been met. The United States anticipates filing this
motion during October 2005. In this circumstance, all parties agree
the Settling Defendants need not participate in this Rule 26(f) conference
and need not provide Rule 26(a) disclosures.
- To assist the Court in docketing this action for trial, the parties
advise the Court that they currently estimate that each side (plaintiff
and the two Defendants combined) would each need one week to present their respective cases, for a total estimated
trial length of two weeks.
September 1, 2005
Respectfully submitted,
_/s/ Gerald Francis Kaminski
Gerald Francis Kaminski (0012532)
Assistant U. S. Attorney
Atrium II
221 East Fourth Street, Suite 400
Cincinnati, Ohio 45202
(513) 684-3711
_/s/ Steven Kramer
Steven Kramer
John Lohrer
Paul Torzilli
Antitrust Division
U.S. Department of Justice
1401 H Street, N.W., Suite 4000
Washington, D.C. 20530
(202) 514-8349
(202) 307-5802 (Fax)
paul.torzilli@usdoj.gov
Attorneys
for Plaintiff United States
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_/s/ Donald J. Mooney, Jr.
Donald J. Mooney, Jr. (0014202)
ULMER & BERNE LLP
600 Vine Street, Suite 2800
Cincinnati, Ohio 45202
(513) 698-5070
(513) 698-5071 (Fax)
dmooney@ulmer.com
_/s/ Kimberly L. King
Kimberly L. King
Hayward & Grant, P.A.
2121-G Killarney Way
Tallahassee, FL 32309
(850) 386-4400
(850) 205-4501 (Fax)
kking@kkinglaw.com
Attorneys for Defendants Federation
of Physicians and Dentists
and Lynda Odenkirk
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CERTIFICATE OF SERVICE
I hereby certify that on September 1, 2005, I electronically filed
the foregoing Rule 26(f) Report Submitted by Plaintiff United States
and Defendants Federation of Physicians and Dentists and Lynda Odenkirk
with the Clerk of the Court using CM/ECF system which will send notification
of such filing to G. Jack Donson, Esq. (Attorney for Defendant Dr. Michael
Karram), and Donald J. Mooney, Jr., Esq. (Attorney for Defendant Federation
of Physicians and Dentists, and Defendant Lynda Odenkirk). I further
certify that I have caused the document to be sent via first-class United
States Mail, postage prepaid, to the following non-CM/ECF participants:
Michael E. DeFrank, Esq.
Scott R. Thomas, Esq.
Hemmer Pangburn DeFrank PLLC
Suite 200
250 Grandview Drive
Fort Mitchell, KY 41017
Trial Attorneys for Defendant Dr. James Wendel
Jeffrey M. Johnston, Esq.
37 North Orange Avenue
Suite 500
Orlando, FL 32801
Attorney for Defendant Dr. Warren Metherd
Kimberly L. King
Hayward & Grant, P.A.
2121-G Killarney Way
Tallahassee, FL 32309
Attorney for Defendant Federation of Physicians and Dentists
Attorney for Defendant Lynda Odenkirk
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s/ Paul Torzilli
Paul Torzilli
Attorney for the United States of America
United States Department of Justice
Antitrust Division
1401 H Street, NW, Suite 4000
Washington, DC 20530
Phone: 202-514-8349
Fax: 202-307-5802
E-Mail: paul.torzilli@usdoj.gov
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