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AppendixD 

1 Case M:05-cv-01 t CRB Document 247 Filed 04/2, JOG Page 1 of 5 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

l I IN RE: BEXTRA AND CELEBREX 

MARKETING SALES PRACTICES AND 

CASE NO. tvl:05-CV-01699-CRB 

12 PRODUCT LIABILITY LITIGATION !VIOL No. 1699 

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14 This Order Relates lo: 

! 5 ALL CASES. 

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17 I. SCOPE OF ORDER 

PRETRIAL ORDER NO. 11: 

APPOINTMENT OF THE HONORABLE 

FERN !W. SMITH AS SPECIAL l\'IASTER 

18 I. Order Applicable to All Cases in lv1DL Proceedings. This Order shall apply to all 

I 9 cases currently pending in MDL No. 1699 and lo all related actions that have been or wtll be 

20 originally filed in, transferred to, or removed to this Court and assigneJ thereto (collectively, "the 

21 l'vlDL proceedings''). This Order is binding on all parties and their counsel in all cases currently 

22 pending or subsequently made part of these proceedings and shall govern each case in the 

23 proceedings unless it explicitly stales that it relates to srecific cases. 

24 2. 6.Qpointme11l or Spccifil. Master. Pursuant to Federal Ruic or Civil Procedure 53 

25 and this Court's Prl'lri:11 Order No. 5, issued on February 7, 2006, and with tht: consent nf"the 

2(1 parties, the Court hereby appoints !he l !onorablc Fern fVl. Smith, United Stales District Court 

27 Judge (Retired), as u Spc;;:ial t\lastcr lo assist Ilic Courl in this litigation (hercin:ifh:r "Judge 

28 Smith" or "Special i'vf;1s1cr"l. 

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PRETRl1\L URIJER NU. 11: i\l'l'OINTl\·IENT OF THE IIONORJ\lll.E 1°!,RN M. 

SMITH i\S SPECIAL MASTER - J\l:OS-CV-OJC,<lll-CR8 

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II. BASIS FOR APPOINTlVlENT UNDER RULE 53(A) AND 53(B)(J) 

3. Basis for Appointment. The Special Master is hereby appointed pursuant to Rule 

53(a)(J) to perfonn duties consented to by the parties lRule 53(a)( l )(A)), to make findings of focl 

on issues lo be decided by the Court because appointment is warranted by an exceptional 

condition (namely, the volume of cases pending in these proceedings) (Rule 53(a)( I )(B)( i)), and 

to address pretrial and post-trial matters rhal cannot be addressed effectively and timely by an 

available dis!rict judge or magistrate j udgc of the dislrict ( Rule 53(a)(I )(C)). 

4. No Grounds for Disqualification. Pursuant to Rule 53(a)(2) anJ 53(6)(3). the 

Special Master has filed an affidavit \vith this Court that states that she has no relationship to !be 

paiiies, counsel. action, or Court that wuuld require disqualification of a judge under 28 U.S.C. 

section 455. During the course of these proceedings, the Special Master and the parties shal! 

notify this Court immediately if they become aware of any potential grounds that would require 

disqualification. 

5. Fairness Considerations. Pursuant lo Rule 53(a)(3), the Court has considered the 

fairness of imposing the likely expenses of the Special Master on the parties. The Court believes 

that the appointment :rnd use of the Special Master will materially advam;e lhe litigution. thereby 

:1chicvi11g considerable cost-saving to all parties. l'v1oreover, the Court notes that the parties have 

consented to !he Special i\,lasler's appointment and have agreed to pay tile cornpcnsntion ordered 

rn paragraph 13 herein, The Court will protect against unreasonable expenses and delay through 

regular communicalion with !he Speci::d f'l,bster and Liaison Counsel. 

6. Proper Notice Given to All ParJjes. Pursuant to Rule 53(b'l( I) and Pretrial Order 

No 5, lhe Court gave all parties to the f'vlDL proceedings notice of its intent to appoint the Special 

[\faster ;mJ an opportunity lo be ht'arcl with respect lo such appointment before issuing this Order. 

Ill. SPECIAL MASTER'S DUTIES, ALITHORITY,AND COl\lPENSATION 

7. Diligence. Pursuant to Ruic 53(b)(2), the Couri hereby directs the Special Maskr 

to proceed with all reasonable diligence in perfonning her duties in the MDL proceedings. 

X. Scc112LorSpeci:il Master's Duties. Pursurn1l to RulL' 53(b)(2)(A), the Special 

i\-laster shall assist the Court with matkrs such as case ma11:w.L·mcnl. tri:tl sclcctinn and ca.,c -2- ~ 

f'RETRl1\L ORDER NU. 11: ,\l'l'OINTI\IENTOf' TIil' IIONORJ\BLE FERN 1\1. 

Si\·IITII /\S SPECIAL MASTER i\l:05-CV-01699-CRO 

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Case M:05-cv-016 CRB Document 247 Filed 04/2, 106 Page 3 of 5 

resolution procedures, scheduling orders, specially-assigned discovery motions and disputes, 

2 facilitation of inter-jurisdictional coordination, and other matters in which the Court wishes lo 

3 utilize her services. 

4 9. Scope of Special Master's Authority. The Special Master shall have lhc authority 

5 provided in Ruic 53(c) and 53(d). 

6 10. Procedure for Motions Submitted to Special Master. The procedural requirements 

7 contained in this Court's Pretrial Orders shall govern any motion practice before the Special 

8 Master. 

l) 11. Ex Parte Communications. Pursuant to Rule 53(b)(2)(B), the Special Master may 

10 communicate ex parle with the Comt at any time. The Special Master shall not communicate ex 

11 parte with any party absent consent of Liaison Counsel without first providing notice and an 

12 opportunity to be heard to the opposing Liaison Counsel. 

13 12. Preservation of Materials and Preparation of Record. Pursuant to Rule 

14 53(b)(2)(C), the Special Muster shall maintain orderly files consisting or all documents submitted 

15 to her by the parties and any of her wrillen orders, findings, and/or recommendations. Pursuant to 

16 Ruic 5J(e), the Special Master shall tile any written orders, findings, and/or recommendations 

17 with lhe Court via the Court's Electronic Case Filing ("ECF"), as described in lhe Court's Pretrial 

18 Order No. I, paragraph 9. Such filing shall fulfill the Special Master's duty to serve her order on 

19 the parties. Any records of the Special Master's activities other than her written orders, findings, 

20 and/or recommendations shall be filed in accordance with paragraph 17 herein. 

13. Compensation. Pursuant to Rule 53(b)(2)( E) and 53(h), the Special Master shall 

22 be compensated at an hourly rate of$600.00 for her services as Special Master in the MDL 

23 proceedings. The Special Mnster shall not charge for travel lime. Judge Smith shall prepare a 

24 monthly invoice for her services. which she shall provide lo Plaintiffs' Liaison Counsel and 

25 Defendants' Liaison Counsel. Plninti!Ts' Liaison Counsel and Defendants' Liaison Co11nscl shall 

26 each be responsible for paying half'ofthc Special Master's invoice; such invoices shall be paid 

17 promptly. 

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PRETRI/\L ORDER NO. 11: 1\PPOINTMENT OF THE l lONOR/\BU" FERN ivl. 

SMIT! I i\S SPECIAL MASTER · M:05-CV-0l<,99-CRU 

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Case M:05-cv-O 16 CRB Document 247 Filed 04/2, 106 Page 4 of 5 

I 14. Special Master's Reports !o Cour!. Pursuant to Rule 53((), the Special Master 

shall report to the Court as directed by lhe Court. 

IV. ACTION ON SPECIAL MASTER'S ORDERS, REPORTS, OR 

RECOMl\fEN DA TIONS 

15. Scope of Section. Pursuant to Rule 53(b)(2)(D) and 53(g), the procedures 

described in p::iragrapbs 16 through 19 herein shall govern any action on the Special ivlastcr's 

orders, rcpmis, rrnd/or recommendations. 

16. Time Limits for Review. Any party wishing to file objections to or a motion to 

9 adopt or modity the Special Master's orders, reports, aml/or recommendations must file such 

10 objections or motion with the Court within fourteen (14) days from the day tbe Special Master 

11 filed the order, report, and/or recommendation via ECF. Any order issued by !he Spcci:JI fl.faster 

12 shall remain in effect pending :rny such objection or motion. 

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l 7. ,Eili._Qg the Record for Review. The patty filing the objection or motion shall 

submit with such objection or motion any record necessary for lhe Court to review the Special 

Master's order. report, and/or rccornmenuation, including any transcripts of proceedings before 

lhc Special tvfoster and any documents submitted by the parties in connection with the Special 

rvlaster's order, report. and/or recommendation. Failure to provide the record sl1all constilulc 

grounds for Lhe Court lo ovemilc the objection or deny the motion, 

18. Standard for Court's Review. Pursuant to the parties' stipulation, the Court sh:ill 

review findings of facl made or recommended by the Special i'v!aslcr fi.Jr clear t:rror. Tile Court 

shall review de 1101·0 any conclusions of h1w made or recommended by the Special i\,Iasler. The 

Court will set aside the Special Master's ruling on u procedural mal!cr only for an abuse or 

discretion. 

19. Court's Actions on l'v!aster's Ordei:;s. Pursu:ml lo Ruic 53(g)( l ), in acting on an 

order, report, or rccommcnd:1lions of !he Spcci,1! i\fostcr, the Court shall afford each party an 

opportunity lo be heard and, in its discretion, m:1y receive evidence, and may adop! or affirm; 

/ill/ 

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l'RITRL•\L OfWEI, N(), 11: 1\J'P()INTM['.NT DF Tl II· IIONOR1iflLl: FERN i\·l 

Si\llTI I ,\S SPl'.Cl1\L. /Vl.•\STER-- M:05-t_'V-011,'/L).('j(B 

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modify; wholly or partly reject or reverse; resubmit to the Special Master with instnictions; or 

2 make any further orders it deems appropriate. 

3 IT IS SO ORDERED. 

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Dated: April 25, 2006 Isl 

HONORABLE CHARLES R. BRYER 

UNITED STATES DISTRICT JUDGE 

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PRETRIAL ORDER NO. 11: APPOINTMENT OF TIIE HONORABLE FERN I'd 

SMITH t\S SPECIAL MASTER - M:05-CV-01699-CRA 

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