In Re: Gardasil Products Liability Litigation

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:22-md-03036-RJC
IN RE: GARDASIL PRODUCTS LIABILITY
LITIGATION
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MDL No. 3036
THIS DOCUMENT RELATES TO
ALL CASES
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THIRD PRETRIAL ORDER
THIS MATTER comes before the Court following the second pretrial conference in this
MDL (the “Second Pretrial Conference”). The Court having fully considered the Parties’ filings
and the arguments made by counsel at the Second Pretrial Conference, IT IS, THEREFORE,
ORDERED that:
1. THIRD PRETRIAL CONFERENCE AND AGENDA FOR CONFERENCE
As previously stated in open court at the Second Pretrial Conference and noted on the
docket, this matter is set for a third pretrial conference on January 31, 2023, at 9:00 A.M.
Courtroom 8, at the United States District Court for the Western District of North Carolina, 401
West Trade Street, Charlotte, NC 28202. The Parties shall confer and file on or before 12:00 PM
on January 30, 2023: (1) a joint status report, including any issues on which the Parties are ordered
to meet and confer and any issues the Parties wish to raise with the Court; (2) any motions that
the Parties wish to be heard at the Third Pretrial Conference; (3) any proposed consent orders for
the Court’s consideration; and (4) a joint proposed agenda for the Third Pretrial Conference.
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Any Parties that wish to appear by Microsoft Teams must contact Brittany Lynch,
Courtroom Deputy, in the Clerk’s Office at least 24 hours before the hearing. The phone number
for the Clerk’s Office is 704-350-7400, and Ms. Lynch can be reached at 704-350-7409 or via
email at Brittany_lynch@ncwd.uscourts.gov.
2. SCIENCE DAY
This matter is set for a Science Day on January 31, 2023, Courtroom 8, at the United States
District Court for the Western District of North Carolina, 401 West Trade Street, Charlotte, NC
28202. Science day shall commence after the Third Pretrial Conference. The purpose of Science
Day is to provide the Court with an overview of the general medical and scientific issues associated
with the Gardasil vaccine and the injuries being alleged by Plaintiffs in a non-adversarial format.
The Parties have agreed to the following parameters, as modified by the Court, to govern Science
Day:
 Attendance will be limited to the Parties and counsel for the Parties, but shall include
court staff.
 The topics to be discussed at Science Day will be of a general nature and shall not identify
any specific plaintiff.
 The Science Day presentations will be “off the record” and cannot be used by the Parties
thereafter for any purpose. However, a court reporter will transcribe the proceedings, and
the transcript may be used solely by the Court to refresh its recollection of the Science Day
presentations. The transcript costs shall be borne 50% by Plaintiffs and 50% by Defendants.
The Parties shall otherwise be solely responsible for their costs and shall not seek to recover
same from the other party. No party may obtain the transcript or use the transcript. The
Science Day presentations shall not be transcribed by any other means.
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 The presentations shall be made by the Parties’ attorneys. No witnesses, expert or
otherwise, will testify. The Court may ask questions of the presenters as the Court deems
appropriate.
 The format will be lecture-style presentations that may incorporate the use of PowerPoint
presentations or other demonstrative aids. The PowerPoint presentations will not be
exchanged by the Parties at any time, but will be provided to the Court on Science Day
for the Court’s sole use to refresh its recollection of Science Day.
 The Federal Rules of Evidence will not be enforced during the presentations.
 For the avoidance of doubt, no statements or presentations by counsel nor any PowerPoints
or other demonstrative aids used during Science Day shall be discoverable, admissible,
shared beyond the instant litigation (MDL No. 3036), or used in any fashion whatsoever
for any purpose other than for this Court’s benefit to gather informal knowledge at Science
Day. However, the Parties agree that they can use their own slides in any manner they wish
in the future, subject to any Court rulings about demonstratives.
 The total length of time that will be allotted to Science Day shall be approximately five
hours. Plaintiffs and Defendants shall each have a maximum of 2.5 hours to make their
respective presentations. Questions from the Court will not count against these time
limits. The schedule shall proceed as follows:
a. Plaintiffs’ presentation – up to 2.5 hours
i. Plaintiffs may reserve up to 15 minutes of their allotted time for a
response after Defendants’ presentation concludes
b. 30-minute break, or as otherwise determined by the Court at Science Day
c. Defendants’ presentation – up to 2.5 hours.
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 No telephonic or remote access will be permitted, except as requested by relevant judges
from pending state court litigation at the time of Science Day.
 Other than attorney or legal assistant notes, any recording of Science Day (including by
shorthand or the taking or reproducing of any image/slide in person or through any remote
access platform) is strictly prohibited and a violation of this Order.
 Any person who attends Science Day is subject to this Order and the jurisdiction of this
Court.
3. PLAINTIFFS’ COMMITTEES
At the Second Pretrial Conference, the Court considered the Plaintiffs’ Joint and
Unanimous Recommendation for Appointment of Plaintiffs’ Steering Committees (Doc. No. 32).
Without objection, the Court approves Plaintiffs’ recommendations. Accordingly, the following
are APPOINTED:
1. Plaintiffs’ Executive Committee:
Margery Bronster
Bronster Fujichaku Robbins A Law
Corporation
1003 Bishop Street, Suite 2300
Honolulu, HI 96813
808-524-5644
mbronster@bfrhawaii.com
Nicole Lovett
Morgan & Morgan, P.A.
201 North Franklin Street
Ste 7th Floor
Tampa, FL 33602
813-221-6582
nlovett@forthepeople.com
Aaron Siri
Siri & Glimstad LLP
745 Fifth Ave.
Suite 500
New York, NY 10151
212-532-1091
aaron@sirillp.com
Tracy Turner
Pendley, Baudin & Coffin, LLP
24110 Eden Street
P.O. Drawer 71
Plaquemine, LA 70764
225-687-6396
tturner@pbclawfirm.com
2. Plaintiffs’ Steering Committee
Andrew Downing Justin K. Gelfand
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Downing, Allison & Jorgenson
3030 N. Central Ave., Suite 507
Phoenix, AZ 85012
480-701-0999
adowning@daj-law.com
Margulis Gelfand, LLC
7700 Bonhomme Avenue
Suite 750
St. Louis, MO 63105
314-390-0230
justin@margulisgelfand.com
Robert Hatch
Bronster Fujichaku Robbins A Law
Corporation
1003 Bishop Street, Suite 2300
Honolulu, HI 96813
808-524-5644
rhatch@bfrhawaii.com
Brian O. Marty
Shindler, Anderson, Goplerud &
Weese P.C.
5015 Grand Ridge Drive,
Suite 100
West Des Moines, IA 50265
515-223-4567
marty@sagwlaw.com
Kim Mack Rosenberg
Mack Rosenberg Law
59 Wiggins Street
Princeton, New Jersey 08540
917-797-8033
kim@mackrosenberglaw.com
Anthony Liberatore
A. LIBERATORE, P.C.
100 Wilshire Blvd., Suite 700
Santa Monica, CA 90401
424-285-8550
anthony@alpc-law.com
Mark Sadaka
Law Offices of Sadaka Associates,
LLC
155 North Dean Street
Suite 4d
Englewood, NJ 07631-2524
800-810-3457
mark@sadakafirm.com
n/a
3. Federal-State Court Liaison
Monique Alarcon
Baum Hedlund Aristei & Goldman
11111 Santa Monica Boulevard
Suite 1750
Los Angeles, CA 90025
310-207-3233
malarcon@baumhedlundlaw.com
Like the appointment of Co-Lead and Liaison Counsel, the appointment to the Plaintiffs’
committees is of a personal nature. The appointees cannot be substituted by other attorneys,
including members of the appointee’s law firm, to perform the committees’ exclusive functions,
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such as committee meetings and court appearances, except with prior Court approval. Nothing
herein shall be construed to preclude the Lead Counsel together with Liaison Counsel from
agreeing to permit attorneys not appointed to the committees from assisting with the conduct of
this litigation.
Under no circumstances are Co-Lead counsel, Liaison Counsel, or the Plaintiffs’
committees members, responsible for the filings, discovery, or any other issue or matter related to
an individual Plaintiff’s case or claim. More specifically, Co-Lead counsel, Liaison Counsel, or
the Plaintiffs’ committees members are in no way responsible for the attorney-client relationship
and the duties and responsibilities each individual attorney or law firm owe to their clients in
prosecution of their individual case.
4. PLEADING DEADLINES
By agreement of the Parties, the Court sets the following pleading deadlines in this MDL.
Amended pleadings must be filed on or before January 6, 2023. In the event any cases are
selected for bellwether workup and/or remanded, the Plaintiffs in those cases may amend their
Complaints to add state-specific claims within 30 days of selection for bellwether workup and/or
remand. Counterclaims, crossclaims, and third-party complaints must be filed on or before
January 12, 2023.
In the interest of efficiency and in lieu of filing individual Answers in all cases at this time,
Merck must file the following on or before January 27, 2023: (1) a general denial, (2) a limited set
of admissions to certain allegations, and (3) a preliminary list of affirmative defenses (that are not
case-specific or state-specific but rather are applicable to all or most cases in the MDL). By filing
a general denial and preliminary list of affirmative defenses, Merck does not waive any state-
specific or case-specific defenses in non-bellwether cases (which may be pleaded in a full Answer
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upon remand or at another appropriate date), does not waive any of its Federal Rule of Civil
Procedure 12(b) defenses in any current or future case in this MDL, and may assert these case-
specific defenses by motion at a later date or on remand. In any cases selected for bellwether
workup, Merck’s case-specific Answers are due within 21 days of bellwether selection or, if
Plaintiffs amend these Complaints to add state-specific claims, then within 21 days after these
amended pleadings. In the event any cases are remanded, Merck shall file a case-specific Answer
within 21 days of remand or, if Plaintiffs amend these Complaints to add state-specific claims,
then within 21 days after these amended pleadings.
5. RULE 12 MOTIONS
Merck’s Federal Rule of Civil Procedure 12 motions in the Bergin (W.D.N.C.) and
America (N.D.N.Y.) cases must be filed on or before February 7, 2023. By filing these motions
on a limited set of pleading deficiencies, Merck does not waive any of its Federal Rule of Civil
Procedure 12(b) defenses in any current or future case in this MDL, and Merck may assert these
case-specific defenses by motion at a later date or on remand.
6. DISCOVERY
The Court will phase discovery in this MDL to first prioritize discovery and dispositive
motions on general causation and implied preemption. The Court finds that phased discovery is
consistent with the Manual for Complex Litigation § 22.634 to efficiently resolve complex tort
litigation by taking up early in the litigation issues such as “whether the facts and expert evidence
support a finding that the products or acts in question have the capacity to cause the type of injuries
alleged.” Additionally, phasing discovery will more effectively preserve resources and efficiently
narrow issues for purposes of dispute resolution and/or remand and trial.
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The Parties shall meet and confer on a case management schedule consistent with this
Court’s ruling, and submit within twenty-one (21) days from the date of this Order a proposed case
management order. As agreed by the Parties, initial bellwether selection shall be limited to a select
pool of Plaintiffs in this MDL who allege either of the following injuries: Postural Orthostatic
Tachycardia Syndrome (“POTS”) or Primary Ovarian Failure (“POF”)/Primary Ovarian
Insufficiency (“POI”).
7. PLAINTIFF FACT SHEET
Under Federal Rule Civil Procedure 26(b)(1), parties may obtain discovery regarding any
nonprivileged matter that is: (1) relevant to any party’s claim or defense; and (2) proportional to
needs of the case. In considering proportionality, courts consider (1) the importance of the issues
at stake in the action; (2) the amount in controversy; (3) the parties’ relative access to relevant
information; (4) the parties’ resources; (5) the importance of the discovery in resolving the issues;
and (6) whether the burden or expense outweighs its likely benefits. Information need not be
admissible to be discoverable. The Parties disagree on three areas of information Merck seeks
through the Plaintiff Fact Sheet.
First, Merck seeks to obtain all documents or filings made on behalf of each Plaintiff in the
prior proceedings before the Office of Special Masters in the U.S. Court of Federal Claims
(“Vaccine Court”), except attorney billing records. Plaintiffs oppose this request and propose
allowing Merck to obtain certain limited information from the Vaccine Court proceedings. The
Court finds the Vaccine Court filings are directly relevant to the claims and defenses in this case.
The de novo standard of review does not change the relevancy of the information from the Vaccine
Court proceedings. Additionally, given the already agreed upon process for Merck to collect
Vaccine Court files, and the partial implementation of that process, the Court does not find
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collection of the Vaccine Court files to be unduly burdensome. Accordingly, the Court will allow
Merck to request all documents or filings made on behalf of each Plaintiff in the Vaccine Court
proceedings, except the attorney billing records. However, to the extent Plaintiffs assert that any
individual Vaccine Court file contains expert reports, opinions, or other documentation from
experts that the Plaintiffs will retain “in anticipation of litigation or to prepare for trial and who
[are] not expected to be called as [] witness[es]” pursuant to Federal Rule of Civil Procedure
26(b)(4)(D), then Plaintiffs shall notify Merck of the specific expert reports, opinions, or other
documentation and simultaneously file a motion with the Court to determine whether Merck may
discover the information contained therein. Upon notice from the Plaintiffs consistent with this
Order, Merck shall not review or otherwise access such expert information until the Court rules on
the relevant motion.
Next, the Court will allow Merck’s full request for Plaintiffs’ mental health records at
stated in the Parties’ status report. The information Merck requests is relevant to the claims and
defenses. Plaintiffs’ arguments regarding the origin or cause of various medical symptoms are
more appropriate for the merits of the claims or defenses rather than relevancy for discovery
purposes.
Last, Merck requests a significant amount of information from Plaintiffs’ social media and
other online posts, as well as photographs and videos of the Plaintiffs. Merck’s request is too
broad. The Court will allow Merck to request information posted on social media platforms and
chatrooms, as well as photographs and videos of Plaintiffs in their possession; however, such
requests must be limited only to Plaintiffs’ health, vacations, exercise, sports, and recreational
activities.
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8. 2023 PRETRIAL CONFERENCES
This matter is set for monthly pretrial conferences the last Tuesday of every month in 2023,
at 11:00 A.M., in Courtroom 8, at the United States District Court for the Western District of North
Carolina, 401 West Trade Street, Charlotte, NC 28202. The Court in its discretion may cancel or
reschedule these hearings as needed.
Unless otherwise indicated in this order, before each pretrial conference, the Parties shall
confer and file by one (1) week before the pretrial conference: (1) a joint status report, including
any issues on which the Parties are ordered to meet and confer and any issues the Parties wish to
raise with the Court; (2) any motions that the Parties wish to be heard at the pretrial conference;
(3) any proposed consent orders for the Court’s consideration; and (4) a joint proposed agenda for
the pretrial conference.
Any Parties that wish to appear by Microsoft Teams must contact Brittany Lynch,
Courtroom Deputy, in the Clerk’s Office at least 48 hours before the hearing. The phone number
for the Clerk’s Office is 704-350-7400, and Ms. Lynch can be reached at 704-350-7409 or via
email at Brittany_lynch@ncwd.uscourts.gov.
The Clerk of Court is directed to send a copy of this Order to the Clerk of the Judicial Panel
on Multidistrict Litigation.
Signed: January 27, 2023
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