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 ) MDL No. 3036
LITIGATION )
) THIS DOCUMENT RELATES TO
) ALL CASES
)
)
STIPULATION AND ORDER REGARDING DEPOSITION SCHEDULING OF AND
CONTACT WITH PLAINTIFFS’ TREATING HEALTHCARE PROVIDERS IN THE
INITIAL BELLWETHER POOL
The parties agree and stipulate the following regarding the Parties’ and representatives of
the parties’ contact with Plaintiffs’ treating healthcare providers ex parte prior to any deposition
in MDL 3036:
A. In “Initial Bellwether Pool” cases selected by Plaintiffs, Plaintiffs will question the
healthcare provider(s) who recommended each Gardasil dose for the plaintiff first and be
responsible for scheduling the deposition(s) of the healthcare provider(s) who recommended each
Gardasil dose for the plaintiff. The parties will be allotted an equal division of time and will work
together to select a mutually agreeable date and time for the depositions.
B. In “Initial Bellwether Pool” cases selected by Merck, Merck will question the
healthcare provider(s) who recommended each Gardasil dose for the plaintiff first and be
responsible for scheduling the deposition(s) of the healthcare provider(s) who recommended each
Gardasil dose for the plaintiff. The parties will be allotted an equal division of time and will work
together to select a mutually agreeable date and time for the depositions.
C. In Derr, Hilton, and the randomly selected bellwether cases, the parties will use a
mutually agreed randomizer to determine which party questions the healthcare provider(s) who
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recommended each Gardasil dose for the plaintiff first and is also responsible for scheduling the
deposition(s) of the healthcare provider(s) who recommended each Gardasil dose for the plaintiff.
The North Carolina cases and the randomly selected cases will be evenly split between the parties,
meaning that Plaintiffs will question first for 2 of the 4 random selections, Merck will question
first for the other 2, and each party will question first on one of the two North Carolina cases. The
parties will be allotted an equal division of time and will work together to select a mutually
agreeable date and time for the depositions.
D. Pursuant to the First Case Management Order (Doc. No. 77), the parties are entitled
to depose one treating physician of each party’s choosing. In each bellwether case, Plaintiffs will
question the treating physician of their choosing first and are responsible for deposition scheduling.
In each bellwether case, Merck will question the treating physician of its choosing first and is
responsible for deposition scheduling. The parties will be allotted an equal division of time and
will work together to select a mutually agreeable date and time for the healthcare provider’s
deposition.
E. If the parties select the same treating physician, a randomizer would be used to
decide who questions the treater first, with the expectation that should this happen, there will be
equal distribution of which party questions first to the extent possible amongst all cases.
F. Except as to deposition scheduling and logistics, Merck is prohibited from
communicating ex parte with Plaintiffs’ healthcare providers.
G. In any ex parte communications with Plaintiffs’ healthcare providers, Plaintiffs’
counsel are not prohibited from disclosing publicly available documents to Plaintiffs’ healthcare
providers. However, pursuant to agreement between the parties, Plaintiffs’ counsel will not
provide or show any non-publicly available documents produced by Merck in this litigation that
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have been designated “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” pursuant
to the Stipulated Protective Order (Doc. No. 70) to any healthcare provider and/or his or her
representative prior to the deposition.
H. If Plaintiffs’ counsel has ex parte communications with a healthcare provider
regarding subject matter other than scheduling and logistics, Plaintiffs’ counsel must provide
Merck’s counsel, by email, with a copy of all documents other than the healthcare providers’
medical records provided to or shown to the healthcare provider at least 72 hours prior to that
healthcare provider’s deposition. If Plaintiffs’ counsel has ex parte communications with a
healthcare provider less than 72 hours before his or her deposition, within 3 hours after the end of
the communication with the healthcare provider, Plaintiffs’ counsel must provide Merck’s counsel,
by email, with a copy of all documents other than the healthcare providers’ medical records
provided to or shown to the healthcare provider. Plaintiffs’ counsel shall not have ex parte
communications with a healthcare provider less than 4 hours before the start of his or her
deposition.
I. Notwithstanding Paragraphs F – H above, if a party has retained an Initial
Bellwether Pool plaintiff’s healthcare provider as an expert and that healthcare provider is noticed
for deposition, counsel for the party that retained him or her must provide the opposing party’s
counsel with the following information in writing at least 72 hours prior to that healthcare
provider’s deposition: (1) a copy of Exhibit A to the Stipulated Protective Order signed by the
retained expert (if the expert is required to sign Exhibit A) and (2) disclosure by bates number of
all “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” discovery material provided
to that provider, other than medical records.
J. Even if Merck has retained an Initial Bellwether Pool plaintiff’s healthcare provider
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as an expert, Merck is prohibited from discussing the Initial Bellwether Pool plaintiff himself or
herself and/or the healthcare provider’s care and treatment of that plaintiff with that retained
provider.
SO ORDERED.
Signed: October 30, 2023
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