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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THIS MATTER comes before the Court on the “Plaintiffs’ Motion to Withhold Expert
Reports Filed in the Vaccine Program by Plaintiffs’ Consulting Experts” (the “Motion”). (Doc.
No. 84). Defendants Merck & Co., Inc. and Merck Sharp & Dohme LLC (together, “Merck”)
oppose the Motion. For the reasons stated herein, the Motion is GRANTED IN PART and
DENIED IN PART.
I. BACKGROUND
This is multi-district litigation (“MDL”) involving allegations “that [P]laintiffs . . .
developed Postural Orthostatic Tachycardia Syndrome (POTS), [Primary Ovarian Failure
(POF)/Primary Ovarian Insufficiency (POI)], and various other injuries as the result of an
autoimmune reaction to [Merck’s] Gardasil vaccine.” (Doc. No. 1). Previously in this MDL, the
Parties disputed whether Merck could 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”). The Court concluded that the Vaccine Court filings are relevant to the
claims and defenses in this case and allowed Merck to request all documents or filings made on
behalf of each Plaintiff in the Vaccine Court proceedings, except the attorney billing records. (Doc.
No. 58 at 8-9). However, based on arguments made by the Plaintiffs, the Court additionally
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allowed Plaintiffs to temporarily withhold expert reports, opinions, or other documentation “to the
extent Plaintiffs asserted 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).” (Id.). If such information were to arise, the Court instructed
Plaintiffs to notify Merck and simultaneously file a motion with the Court to determine whether
Merck may discover the information contained therein. (Id.).
On March 23, 2023, Plaintiffs filed the Motion seeking to withhold “all vaccine program
reports prepared by Plaintiffs’ consultants and the expert reports filed by the Department of Health
and Human Services” until Plaintiffs designate their testifying experts. (Doc. No. 84). Merck
opposes the Motion. (Doc. No. 89).
II. DISCUSSION
Federal Rule Civil Procedure 26(b)(4)(D) provides:
(D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not,
by interrogatories or deposition, discover facts known or opinions held by an expert
who has been retained or specially employed by another party in anticipation of
litigation or to prepare for trial and who is not expected to be called as a witness at
trial. But a party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under which it is
impracticable for the party to obtain facts or opinions on the same
subject by other means.
“The underlying rationale for the severe limitation on discovery as to this . . . category of expert[s]
is the doctrine of unfairness, namely, that a party should not be able to exploit for its own use trial
preparation work undertaken by another party.” Westchester Surplus Lines Ins. Co. v. Clancy &
Theys Constr. Co., 2013 WL 12145923, at *3 (E.D.N.C. Sept. 20, 2013) (citation omitted). This
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rule “basically applies the work product rule to nontestifying/consulting experts retained in
anticipation of litigation.” Westfield Ins. Co. v. Carpenter Reclamation, Inc., 301 F.R.D. 235, 250
(S.D. W. Va. July 11, 2014). “The party resisting production of facts known or opinions held by
a consulting expert has the burden of demonstrating the information is protected by Rule
26(b)(4)(D), and the party seeking disclosure bears the heavy ‘burden’ of demonstrating
‘exceptional circumstances’ to justify discovery of any protected information.” H/S Wilson
Outparcels, LLC v. Kroger Ltd. P’ship I, No. 5:15-CVv-591-RJ, 2018 WL 1528187, at *2
(E.D.N.C. Mar. 28, 2018).
Here, Plaintiffs argue that in this MDL they regularly consult the experts they used in the
Vaccine Court proceedings, but Plaintiffs have not yet decided which, if any, Vaccine Court
experts they will designate as testifying or solely consulting experts. Thus, they seek to withhold
all Vaccine Court expert reports – from Plaintiffs’ experts and the Government’s experts – until
Plaintiffs determine which, if any, of those experts will be testifying or consulting experts in this
MDL. Considering the principles of fairness underlying Rule 26(b)(4)(D), the Court will allow
Plaintiffs to withhold their expert reports filed in Vaccine Court only until such time as Plaintiffs
determine whether such experts will be retained as consulting or testifying experts in this MDL.
At this stage in the MDL, fairness dictates that Plaintiffs should be able to use the continuing work
and relationships of experts they used in the Vaccine Court, involving the same Plaintiffs, to
develop litigation strategy and trial preparation without Merck having access to these potentially
consulting expert’s opinions to develop its own trial strategy. Westchester Surplus Lines Ins. Co.,
2013 WL 12145923, at *3. Indeed, Merck may also be consulting with experts to develop its
strategy in this litigation, but Plaintiffs do not have access to those experts’ opinions now. While
the Court recognizes that this is not a typical application of Rule 26(b)(4)(D), Plaintiffs’ Vaccine
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Court experts were not solely consulting experts in Vaccine Court, and their reports were filed in
Vaccine Court to support the Plaintiffs’ cases, because this MDL is in a unique posture, it is
appropriate to allow Plaintiffs to protect information used in anticipation of this litigation and to
develop their litigation strategy. However, to the extent Plaintiffs determine they will not retain
any particular expert that filed a report in Vaccine Court as a consulting expert in this MDL as
contemplated by Rule 26(b)(4)(D), the Plaintiffs must produce those experts’ reports to Merck
within 10 days of such decision.
Plaintiffs also seek to withhold expert reports filed by the Department of Health and Human
Services (“DHHS”) in Vaccine Court because they argue that producing such reports essentially
produces Plaintiffs’ expert reports. This argument goes beyond Rule 26(b)(4)(D), its fairness
considerations, and the work-product rule. Plaintiffs concede that they will not retain DHHS’s
experts as consulting experts and DHHS’s experts will not assist Plaintiffs in litigation strategy
and trial preparation. The underlying fairness concerns that the Court has with respect to Plaintiffs’
Vaccine Court experts does not exist with DHHS’s experts. Instead, it would be unfair to allow
Plaintiffs access to and use of DHHS’s expert reports in this litigation, but not Merck. Plaintiffs
must produce DHHS’s expert reports from Vaccine Court within 10 days of this Order.
III. CONCLUSION
IT IS, THEREFORE, ORDERED that Plaintiffs’ Motion to Withhold Expert Reports
Filed in the Vaccine Program by Plaintiffs’ Consulting Experts (Doc. No. 84) is GRANTED IN
PART and DENIED IN PART. Plaintiffs must produce DHHS’s expert reports from Vaccine
Court to Merck within 10 days of this Order. In addition, to the extent Plaintiffs determine they
will not retain any particular expert that filed a report in Vaccine Court as a consulting expert in
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this MDL, the Plaintiffs must produce those experts’ reports to Merck within 10 days of such
decision.
SO ORDERED.
Signed: April 25, 2023
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