In Re: Gardasil Products Liability Litigation

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION
3; 22-mad-03086-RJ C

)
IN RE: GARDASIL PRODUCTS LIABILITY ) MDL No. 3086
LITIGATION )

) ‘THIS DOCUMENT RELATES TO

) ALL CASES

)

)

)

)

ORDER REGARDING DIRECT FILING OF ACTIONS IN THE
WESTERN DISTRICT OF NORTH CAROLINA

I. SCOPE OF THE ORDER
This Order applies to claims brought by a U.S. citizen or resident based on alleged usage
of Gardasil ® and/or Gardasil 9® within the United States that are directly filed in this centralized

multidistrict litigation (“MDL No. 3036’).

I. DIRECT FILING OF CASES IN MDL NO. 3086

A. Any Plaintiff whose case would be subject to transfer to MDL No. 3036 may file his or her
case directly in the Westem District of North Carolina (“this District”) for pretrial proceedings
only, subject to the provisions in this Order.

B. Solely for purposes of pretrial proceedings, Merck will not challenge venue or personal
jurisdiction as to any such action filed directly in this District.

C. No Lexecon Waiver. For cases filed directly in this District, the Parties preserve and do not
waive any and all rights under Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S.

26 (1998), to have each case remanded to the district of traditional venue for tnal.

INFORMATION

D. The direct filing of any action in this District, pursuant to this Order, shall have no impact
on choice of law that otherwise would apply to an individual case had it been originally properly
filed in another district and transferred to this Court pursuant to 28 U.S.C. § 1407. Any choice of
law issues will be decided at a later date.
E. The inclusion of any action in MDL No. 3036, whether such action was originally filed in
this District or elsewhere, shall not constitute a determination by this Court that jurisdiction or
venue is proper in this District.
F. The transfer of a case filed pursuant to this Order following pretrial proceedings in this
MDL does not constitute a determination that jurisdiction or venue is proper in the court to which
the case is transferred, unless the MDL Court has specifically found that jurisdiction or venue is
proper in the court to which the case is transferred. Neither the existence of this Order nor any of
its terms shall in any manner be construed as a waiver of Merck’s right to assert that any court
lacks personal jurisdiction over Merck or that venue is improper in any district as to any action
filed in, transferred from, or transferred to, this MDL.
G. This Court shall not be deemed to be the “transferor court” simply by virtue of the action
having been directly filed into MDL No. 3036. Upon completion of adequate pretrial proceedings
in MDL No. 3036, this Court, per the Court’s discretion and pursuant to 28 U.S.C. § 1404(a), will
transfer that case to the federal district court in the district of proper venue as defined by 28 U.S.C.
§ 1391, based on the district the Plaintiff designates in his or her direct-filed Complaint, in the
manner set forth in Paragraph J below. This designated venue will be the presumptive place of
remand (a) as long as that venue would be proper pursuant to 28 U.S.C. § 1391, had the complaint
been filed in that venue, and (b) as long as defendants would have been subject to personal
jurisdiction in that venue, had the complaint been filed there. Should a party submit that the place
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of remand should be elsewhere, then that party must make a showing of good cause as to why the
case should be remanded elsewhere. Such good cause could include where the Plaintiff resided at
the time of vaccination, where Plaintiff resided at time of injury, location of relevant healthcare
professionals, or some other factors. Further, the parties may agree to a place of remand different
than what the Plaintiff so designates. The Plaintiff’s designated venue shall not be considered for
purposes of any determination by any court as to whether: (a) the designated district court is a
court of proper venue; or (2) the designated district court has personal jurisdiction over Defendants
for that Plaintiff’s claims.
H. Nothing in this Order shall preclude the parties from agreeing, at a future date, to try cases
filed pursuant to this order in this District.
I. Any complaint that is directly filed in this District for inclusion in MDL No. 3036 before
this Court shall bear the following caption:
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
IN RE:
GARDASIL PRODUCTS LIABILITY
LITIGATION
)
)
)
3:22-md-03036-RJC
MDL No. 3036
________________________________________ )
)
) DIRECT-FILED COMPLAINT
JANE DOE, )
) Case No.:_________
Plaintiff, )
vs. )
)
MERCK & CO., INC. and MERCK SHARP &
DOHME LLC,
)
)
Case 3:22-md-03036-KDB Document 59 Filed 01/27/23 Page 3 of 6

Defendants. )
________________________________________ )
J. Each case filed in this District for inclusion in MDL No. 3036 shall contain the following
language concerning jurisdiction and venue:
Plaintiff avers that the federal judicial district in which Plaintiff received his/her first
Gardasil dose is [ ].
[If applicable: Plaintiff avers that the federal judicial district in which Plaintiff received
his/her second Gardasil dose is [ ].]
[If applicable: Plaintiff avers that the federal judicial district in which Plaintiff received
his/her third Gardasil dose is [ ].]
The federal judicial district in which Plaintiff currently resides is [ ].
But for the Order permitting direct filing into the Western District of North Carolina
pursuant to Order No. , Plaintiff would have filed his/her case in the United States District
Court for the [Insert Name of Court and Division, if applicable]. Plaintiff thus hereby
designates the United States District Court for the [Insert Name of Court and Division, if
applicable] as the place of remand as this case may have originally been filed there.
K. When electronically filing the pleadings, the signature block shall follow the below format:
RESPECTFULLY SUBMITTED,
_______/s/ Jane Doe________
Jane Doe
NAME OF LAW FIRM
ADDRESS
TELEPHONE
FAX
EMAIL@EMAIL.com
Attorney for Plaintiff
L. Cases directly filed in this Court pursuant to this Order shall not name more than a single
Plaintiff in the case, provided, however, that any such case may include the parent or legal guardian
of a minor, or a spouse in reference to a loss of consortium claim as permitted by law.
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M. The proper filing of a complaint in this District for inclusion in MDL No. 3036 pursuant to
this Order shall stop the running of any statute of limitations, statute of repose, or prescriptive or
preemptive period as if the complaint had been filed in an appropriate venue.
N. Any plaintiff that files a case in this District for inclusion in MDL No. 3036 must note on
the civil cover sheet that the case is related to MDL No. 3036.
O. The allowance of filing in this District does not extend to cases that do not include an
allegation of a claimed injury identified in the Judicial Panel on Multidistrict Litigation’s August
4, 2022, Transfer Order, which provided that “[t]hese personal injury actions present common
questions of fact arising from allegations that plaintiffs, or their minor children, developed postural
orthostatic tachycardia syndrome (POTS) and various other injuries as the result of an autoimmune
reaction to the Gardasil vaccine, which is recommended for the prevention of certain strains of the
human papillomavirus (HPV) and various cancers.” Upon notice from Merck of an injury facially
inconsistent with the Judicial Panel on Multidistrict Litigation’s August 4, 2022, Transfer Order,
a Plaintiff has 14 days to provide a written statement that the claimed injury is consistent with the
Transfer Order. If a plaintiff fails to comply, his or her case shall be transferred to the proper venue
pursuant to 28 U.S.C. § 1404(a). All contested issues will be brought before the Court pursuant to
a motion for suggestion of remand.
P. Prior to any Plaintiff’s lawyer filing a complaint directly in MDL No. 3036, that attorney
must register for and have Western District of North Carolina CM/ECF login name and password.
Any attorney admitted to practice and in good standing in any United States District Court is
admitted pro hac vice in this litigation, and the requirements of Local Rule 83.1 are waived.
Association with local counsel is not required. However, all out-of-state counsel will thoroughly
familiarize themselves with this District’s Local Rules.
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SO ORDERED.

Signed: January 27, 2023

tek t Cr Of

i,
Robert J. Conrad, Jr. he é,
United States District Judge “ee

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