In Re: Gardasil Products Liability Litigation

OCR transcription for search; preserved printed pages are authoritative

AUTHENTICATE
U.S. GOVERNMEN

INFORMATION

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA

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

)
INRE: GARDASIL PRODUCTS LIABILITY ) MDL No. 3086
LITIGATION )

) THISDOCUMENT RELATES TO

) ALL CASES

)

SECOND CASE MANAGEMENT ORDER

1. This Second Case Management Order applies to all actions currently pending
in or later transferred to In re Gardasil Products Liability Litigation (“MDL No. 3036’) by
the Judicial Panel on Multidistrict Litigation (“JPML’’) pursuant to its August 4, 2022 Transfer
Order, all related actions originally filed in or removed to this Court, and any “tag-along”
actions transferred to this Court by the JPML subsequent to the filing of the final Transfer

Order (collectively “Member Actions’’).

2. Number of Rule 30(b)(1) Depositions: Plaintiffs may take up to thirty (30)

Rule 30(b)(1) depositions of Defendants Merck & Co., Inc. and Merck Sharp & Dohme
LLC’s (collectively “Merck’’) employees (current and/or former) absent wnitten agreement by
the Parties, or, if the Parties reach an impasse after meeting and confeming in good faith, by
order of the Court for good cause shown. If Plaintiffs notice a witness’ Rule 30(b)(1)
deposition, Plaintiffs will not seek any additional deposition time of that person on the basis
that Merck has not yet finished producing documents from any source, absent agreement or
order of the Court for good cause shown.

3. Number of Rule 30(b)(6) Depositions: Plaintiffs may issue no more than four

(4) Rule 30(b)(6) deposition notices total (including the two notices previously issued as of

the date of this Order) absent written agreement by the Parties, or, if the Parties reach an
impasse after meeting and conferring in good faith, by order of the Court for good cause
shown. Each notice must generally involve the same examination topic (e.g., sales and
marketing, regulatory). This agreement does not alter the parties’ obligation under Rule
30(b)(6) to confer in good faith about the matters for examination and does not waive Merck’s
right to object to any served notice on scope or other grounds.
4. Number of Document Sources: Merck will produce documents from up to
forty-two (42) Document Sources (custodial and noncustodial) in addition to the productions
it has already made absent written agreement by the Parties, or, if the Parties reach an impasse
after meeting and conferring in good faith, by order of the Court for good cause shown. This
agreement does not constitute a waiver on scope, burden, relevance, or other objections. For
each Document Source for which Merck makes a production, Merck will identify at the time
of production whether or not it considers that production finished.
5. Identification of Document Sources: In order to conclude written discovery
and comply with the fact discovery deadline, Plaintiffs will identify their requested Document
Sources on a rolling basis as follows:
• Plaintiffs will identify twenty-one (21) Document Sources by November 13,
2023.
• Plaintiffs will identify at least five (5) additional Document Sources by
December 15, 2023.
Nothing prevents Plaintiffs from identifying additional Document Sources sooner than this
proposed schedule. Should Merck have any objections to Plaintiffs’ request, the parties will
meet and confer and attempt to resolve those objections within ten (10) days of the request. If
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the parties cannot reach agreement after meeting and conferring, they should raise the issue
promptly with the Court at the following MDL Conference to avoid delay. Plaintiffs’ request
for a Document Source made fewer than 45 days before the close of fact discovery will not be a
basis for continuing the fact discovery deadline.
6. Search Terms: Prior to MDL No. 3036 being formed, Merck searched
Document Sources identified in Exhibit A to ECF 48-1 using the terms contained in Exhibit B
to ECF 48-1 (hereinafter “Original Search Terms”). Plaintiffs also requested additional search
terms in their August 2023 correspondence (hereinafter “MDL Search Terms”). The Original
Search Terms and the MDL Search Terms will be used in connection with any future
document production. Merck will run the MDL Search Terms over the files of the custodians
identified in Exhibit A to ECF 48-1 with the exception of 19 individuals identified by
Plaintiffs in their October 20, 2023 correspondence. No additional search terms will be used
absent written agreement by the Parties, or, if the Parties reach an impasse after meeting and
conferring in good faith, by order of the Court for good cause shown.
7. Deadlines: As reflected in the October 2023 Joint Status Report (Doc. No.
113), the parties have requested an extension on the February 15, 2024 deadline for the close
of fact discovery (for all general Merck fact discovery and Initial Bellwether Pool core initial
workup) and the schedule for (i) the Parties’ general causation expert discovery and Federal
Rule of Evidence 702/Daubert motions and (ii) Merck’s general causation and preemption
motion for summary judgment as set forth in the First Case Management Order (Doc. No. 77).
In the interest of coordination, the Court expects that Counsel for plaintiffs in California state
court litigation, who also serves as co-lead counsel in the MDL, will jointly with Merck
request an extension on the scheduled trial dates in each of the California matters (factoring in
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holidays, conflicts, etc.) that would follow the extension entered in the MDL. The amended
discovery schedule is set forth below. With the exception of the updated calendar deadlines
below, all other aspects of the First Case Management Order (Doc. No. 77) remain ordered.
February 15, 2024 Written Discovery Deadline
June 13, 2024 Close of fact discovery (all Merck fact discovery and Initial
Bellwether Pool core initial workup)
June 20, 2024 Plaintiffs’ general causation and regulatory (if any) expert
reports due
July 22, 2024 Merck’s general causation and responsive regulatory (if any)
expert reports due
August 30, 2024 Deadline for general causation expert discovery (with
Plaintiffs’ experts to be deposed first)
October 11, 2024 General causation Rule 702/Daubert motions due
General causation and preemption motion(s) for summary
judgment due
November 18, 2024 Oppositions to general causation Rule 702/Daubert motions
due
Oppositions to general causation and preemption motion(s)
for summary judgment due
December 17, 2024 Replies in support of general causation Rule 702/Daubert
motions due
Replies in support of general causation and preemption
motion(s) for summary judgment due
January 29-31, 2025 The Court will hold Federal Rule of Evidence 702/Daubert
motions hearings relating to Plaintiffs’ General Causation
witnesses, if the Court deems appropriate, on the following
dates, as necessary:
January 29, 2025;
January 30, 2025; and
January 31, 2025.
Plaintiffs request that the Court hold a full hearing on any
Federal Rule of Evidence 702/Daubert motions relating to
Plaintiffs’ General Causation witnesses. The Court is not
ruling at this time that it will hold such hearings, but will
tentatively reserve such dates for hearings as the Court deems
appropriate at a later time.
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SO ORDERED.

Signed: January 3, 2024

Bite k $f Creme

Robert J. Conrad, Jr.
United States District Judge

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