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Current Developments

Last Updated: September 6, 2017


May 31, 2007

Status Conference held on May 31, 2017

1. Status of Litigation
Counsel reported that there are approximately 265 pending in the MDL that involve Bayer or Merck as defendants. Of those cases, approximately 180 are Bayer-only cases and 85 are combination cases. Counsel reported that all but two of the related cases filed in 2015 in Pennsylvania state court have been dismissed. Of those two cases, one is expected to be dismissed and the other is currently scheduled for trial in June 2018.

2. Update on Plaintiffs with PFS Deficiencies
Counsel reported that they have resolved all but one or two disagreements regarding deficiencies, and they hope to resolve the remaining issues shortly.

3. Discovery Update
Plaintiffs reported that they continue to receive a large volume of documents from Defendants. Plaintiffs have completed seven depositions of Bayer or Merck employees, and have requested twelve additional Bayer employee depositions, most of which are scheduled for September. Plaintiffs also intend to depose Bayer Pharma AG (the German entity) employees in October. The parties are in the process of scheduling depositions for prescribing and treating physicians with regard to bellwether cases. Plaintiffs served discovery on Bayer and Merck seeking custodial files regarding sales representatives and district managers, with production anticipated to begin early next month and to continue on a rolling basis. The parties will meet and confer regarding disputes about this production, and if they cannot resolve the dispute, Plaintiffs will file a motion to compel to be heard at the next status conference.

4. Plaintiffs' Motion to Limit Treater Depositions
The Court heard argument on Plaintiffs' motion to limit the number of treating-physician depositions. Plaintiffs argued for a limit of three treating-physician depositions per bellwether case, but agreed to Defendants' request that Defendants be allowed to depose any additional treating physicians whom Plaintiffs intend to call at trial. Defendants argued against limiting the number of treating-physician depositions, but also stated that they would be amenable to a limit of four treating physicians per bellwether case if they were also allowed to depose any additional treating physicians whom Plaintiffs intend to call at trial.

The Court GRANTED Plaintiffs' motion and set a limit of one prescribing-physician deposition and four treating-physician depositions per bellwether case, with the understanding that Plaintiffs, in a reasonable period of time, would identify any additional treating physicians whom Plaintiffs would likely call at trial and that Defendants could depose those additional treating physicians without regard to the limit.

5. Plaintiffs' Motion to Amend Protective Order
Plaintiffs reported that they had reached an agreement with Defendants under which Defendants would provide some additional information regarding their privilege logs. Accordingly, Plaintiffs withdrew their motion to amend the protective order.

6. Agreed Order Regarding Common Benefit Account
The parties noted that they had submitted a proposed order to establish a common benefit account. The parties confirmed that neither side opposed the order, and the Court stated that it would enter the order shortly.

7. Scheduling of September Status Conference
Upcoming Status Conference:
Tuesday, September 12, 2017, at 2:00 p.m.




May 31, 2007

Status Conference held on May 31, 2017

1. Status of Litigation
Counsel reported that there are approximately 260 cases involving Bayer or Bayer and Johnson & Johnson pending in the MDL. Counsel reported that they have not yet spoken with Judge Young regarding the Pennsylvania cases, but they anticipate that, even under a new schedule, the Pennsylvania cases would still reach trial ahead of the MDL cases. Counsel are working on a proposal to reset the Pennsylvania cases, in state or federal court, but they anticipate that at least one plaintiff will decline the reset and go to trial ahead of the MDL’s schedule.

2. Update on Order to Show Cause and Proposed Order of Dismissal.
The Court received the proposed order of dismissal regarding the three cases subject to an April 4 Order to Show Cause. The Court stated that it would enter the order promptly.

3. Proposed Order Regarding Service of Bayer Pharma AG
Counsel reported that they had reached agreement and would submit a proposed order regarding waiver of service for the foreign entity, Bayer Pharma AG.

4. Discovery Update
Counsel reported that Plaintiffs have begun taking depositions of defense witnesses and Defendants have begun taking depositions of bellwether plaintiffs. The parties continue to schedule additional depositions within these categories, after which they will move on to physician depositions. Bayer has also completed the first round of custodial document productions.

5. Parties Request to Amend Scheduling Orders
The parties reported that they reached an agreement to amend Pretrial Order 13 and they will submit a proposed order to the Court reflecting their agreement. The primary change would be to extend the discovery cutoff date until the end of October. The trial date would remain the same.

6. Scheduling July and August Status Conferences

Upcoming Status Conferences: 
1. Wednesday, June 28, 2017, at 3:00 p.m. 
2. Tuesday, August 1, 2017, at 2:00 p.m.



March 28, 2017

Status Conference held on March 28, 2017

1. Status of Litigation
Counsel reported that there are approximately 254 cases involving Bayer or Merck entities pending in the MDL. Between 90 and 100 of those cases also involve a Janssen entity.

Counsel reported that there are 17 cases pending in Pennsylvania state court. Counsel requested that the Court communicate with the state court judge regarding coordination of scheduling. The Court stated that it was open to this communication, and asked the parties to provide contact information ahead of the parties' conference with the state court judge.

2. Update on Plaintiff Fact Sheet Deficiencies / Order to Show Cause
Counsel asked the Court to issue an order to show cause with regard to several plaintiffs who failed to file timely Plaintiff Fact Sheets. Plaintiffs' counsel noted that they had withdrawn as counsel from one of the plaintiff's cases, and Defendants' counsel asked to submit a revised proposed order based on that fact. The Court stated that it would enter the order promptly once the revised order is submitted.

3. Status of Meet and Confer Regarding Service of Bayer Pharma AG
Counsel reported that with regard to service of Bayer Pharma AG they are following the protocol agreed to in the Xarelto litigation. The parties will either proceed by agreement or submit a proposed order to the Court.

4. Status of Written Discovery Served on Plaintiffs/PSC
Plaintiffs' counsel reported that they are meeting and conferring on this issue and will later present to the Court any issues they cannot agree upon.

5. Proposed Briefing Schedule for ESI Dispute
Counsel reported that a discrete issue arose with respect to ESI production by Bayer. The parties agreed to follow the local rules with regard to non-dispositive motions. Counsel anticipated that at the next status conference they would set a date for the motion to be heard, with the moving party's brief due two weeks before the date of the hearing, and a response due one week before the hearing.

6. Status of Bayer Defendant Depositions
Counsel reported on the status of Bayer custodian depositions, noting that Bayer had recently provided some proposed dates and Plaintiffs provided a new list with additional custodian names. The parties stated that they would meet and confer regarding the list and that the issue may be ripe for the Court's consideration at the next status conference.

7. Update on Bellwether Discovery / Dispute Regarding Deposition Protocol
Counsel reported that they are proceeding with bellwether discovery, but that one dispute had arisen for the Court's resolution. The parties disagreed on the order of physician depositions. Defendants proposed that they would depose the physicians first in cases selected by Plaintiffs and Plaintiffs could depose the physicians first in cases selected by Defendants. Plaintiffs preferred the opposite. Following discussion, the Court stated its preference for Defendants' suggested order.

8. Scheduling April and May Conferences

Upcoming Status Conferences:

1. Friday, May 5, 2017, at 2:00 p.m.
2. Friday, June 2, 2017, at 11:00 a.m.




February 21, 2017

Status Conference held on February 21, 2017

1. Status of Litigation
Counsel reported that there are approximately 165 Bayer-only cases, 85 Bayer and Janssen cases, and 488 Janssen-only cases remaining in the MDL.

Counsel reported that there are 14 Bayer-only or Bayer and Janssen cases in Pennsylvania state court. Plaintiffs and Bayer are meeting and conferring regarding a bellwether proposal for the state court proceedings. If they reach an agreement, counsel stated that they would likely reach out to this Court with the proposed plan and ask the Court to communicate with the state court judge regarding scheduling. The Court stated that it was open to this communication.

2. Short Form Complaint and Plaintiff Fact Sheet Deficiencies
Counsel reported that they are continuing to work through deficiencies in short form complaints and plaintiff fact sheets. Counsel stated that they intended to narrow down the list of cases with deficiencies and include them in a joint submission to the Court near the end of the month.

3. Status of Written Discovery
Plaintiffs' counsel reported that they continue to review document discovery from Bayer and Merck. There have been some delays, but the parties continue to work out any disagreements.

4. Status of Depositions
Plaintiffs' counsel reported that they took one Rule 30(b)(6) deposition recently and will seek to take six more from current or former Bayer custodians this Spring.

5. Bellwether Order and Bellwether Selection
Counsel sought to correct erroneous dates within Pretrial Order 13. The Court stated that it would file a revised order with the changes. Counsel also reported that both sides made their bellwether selections, including four cases each involving Avelox and two cases each involving Cipro. Because both parties selected the same two Cipro cases, the parties agreed that they would work up 10 bellwether cases, including 8 Avelox cases and the 2 Cipro cases.

6.Update on Pending Motions to Dismiss
Counsel reported that in light of Janssen Defendants' withdrawal of their portion of the motions to dismiss based on the statutes of repose fewer cases are now subject to the pending motion. Plaintiffs' counsel reported that the motion remains pending in only 6 cases, involving 7 plaintiffs, and one of those plaintiffs did not oppose the motion. The Court stated that it would issue an order soon.

Next Status Conference: Tuesday, March 28, 2017, at 2:00 p.m.




December 1, 2016

Status Conference held on December 1, 2016

1. Status of Litigation
Counsel reported that there are approximately 548 Janssen cases, 155 Bayer cases, and 78 Bayer and Janssen cases in the MDL. There are 30 cases pending in Pennsylvania state court and 1 pending in California state court.

2. PTO-3, PFS & DFS deficiencies
The parties reported that they are continuing to work through PFS deficiencies. The parties agreed that two cases with deficiencies were ripe for the Court's consideration, and stated that they would file a proposed order to show cause promptly.

3. McKesson
Plaintiffs reported that they have agreed to dismiss McKesson from all cases within the MDL, and that they would submit proposed orders to the Court. Plaintiffs also noted that this action would moot the pending motions to remand in several MDL cases.

4. Discovery to PSC
The parties reported that they continue to meet and confer, and if they cannot resolve disputes, they will submit a motion to the Court.

5. Common Benefit Order
The parties reported that they have identified additional issues regarding the Common Benefit Order, and asked that the Court vacate the order while they confer regarding the dispute. The Court stated that it would vacate the order and await a new proposed order.

6. Science Day Protocol
Science Day, as described in the Science Day Protocol, remains scheduled for January 17, 2017.

7. Bellwether Protocol
The parties reported that they are engaged in further discussions regarding the proposed bellwether protocols, and asked the Court to delay entering an order, so that they could seek an agreement.


Next Status Conference: Tuesday, February 21, 2017, at 2:00 p.m.


October 24, 2016

Status Conference held on October 24, 2016

1. Status of Litigation
Counsel reported that there are currently 711 cases in the MDL, including 92 that have been tagged to transfer into the MDL. There are 142 Bayer-only cases, 440 Janssen-only cases, and 129 cases that involve Bayer and Janssen.

There are 30 cases pending in Pennsylvania state court and 1 pending in California state court. The parties reported that some written discovery has occurred in the Pennsylvania proceedings, and that the parties are discussing a stipulation for those cases under which written discovery from the MDL would also apply to those proceedings.

2. PTO-3, PFS & DFS deficiencies
The parties reported that following an order to show cause regarding two plaintiffs, Defendants heard from, but have not received a PFS from Plaintiff Cerney, possibly due to a miscommunication. Neither party has heard from Plaintiff Desalvo following the order to show cause on September 26, 2016. The Court stated that if Desalvo has not responded in a week, the Defendants should submit a proposed order. Defendants also reported that they continue to send deficiency notices, but none were ripe for the Court's consideration.

3. McKesson Discovery Plan and Briefing
The parties discussed their separate proposals regarding a discovery plan and motion schedule for Defendant McKesson. Janssen Defendants reported that 75 of the 711 cases in the MDL name McKesson. Defendants reported that they have requested, and in many cases received, voluntarily dismissal of the claims against McKesson in states without distributor liability. Additionally, Defendants will continue to seek affidavits from McKesson excluding them as distributors based on the pharmacy information in PFSs. Defendants reported that they expect only 10-20 cases involving McKesson to remain after this winnowing process. Defendants argued that based on this small number of cases, discovery against McKesson would not have broad applicability or serve the purposes of the MDL. Plaintiffs stated that they would like to seek discovery against McKesson along the same timetable as the other defendants. Plaintiffs would like include McKesson cases in bellwether selection, and they argue that Defendants efforts to weed out some McKesson cases should not affect their ability to proceed on cases of their choosing for the bellwether process, particularly because all parties agree that some McKesson cases will remain. The Court stated that it would wait to decide on discovery against McKesson until seeing how many McKesson cases remain at the next status conference. The Court noted that it would likely enter an order on discovery of McKesson at the next status conference, and that there may be shorter discovery deadlines against McKesson to make up for the delay.

4. Discovery to PSC
The parties reported that Defendants continue to serve discovery. There have been some objections, on which the parties will meet and confer and file a motion if necessary.

5. Common Benefit Order
The parties discussed three unresolved issues with regard to the proposed Common Benefit Order: whether Defendants must maintain and provide Plaintiffs with a list of counsel appearing in other cases subject to the order; whether Defendants will be jointly liable for assessments that are not properly deposited in the fund; and whether the parties should meet and confer on a mechanism for verifying that all proper assessments are deposited to the fund.

Plaintiffs contend that the three disputed portions of the Common Benefit Order are tools to enforce compliance with the order that other courts have used in MDLs. Defendants counter that these requirements place additional burdens on Defendants for the benefit of Plaintiffs, and that they are not necessary to ensure compliance with the order.

The Court accepted the reporting requirement, finding that it would impose a minimal burden on Defendants. The Court declined to adopt the other two proposals, finding them unnecessary at this time, but stated that it would reconsider if problems arise.

6. Science Day Protocol
The parties confirmed that Science Day will occur on January 17, 2017, and stated that they would submit an agreed upon protocol promptly.

7. Bellwether Protocol
The parties discussed their competing proposed bellwether protocols. Janssen Defendants reported that their proposal included a limited waiver of Lexecon, and a bellwether pool of 40 cases, divided into eight categories of cases based on the prescription date, and indication at issue, in addition to other factors. Plaintiffs counter that Janssen Defendants' proposed pool size is too large and would be unmanageable. Plaintiffs also objected to requiring a certain number of cases fitting certain defined categories, arguing that the parties may take those variables into account, but that there is no need to limit their selections in this way. Plaintiffs also argued that Defendants' proposed categories are not representative of the MDL as a whole.

Janssen Defendants objected to the eligibility cut-off date in Plaintiffs' proposed protocol, which provides that only cases transferred into the MDL prior to April 21, 2016, may be considered for bellwether selection; whereas, Janssen Defendants' proposal would include cases filed prior to October 1, 2016. Plaintiffs counter that they have already been reviewing cases transferred into the MDL before April 21, 2016, and to require them to review cases filed after that date and make a selection within the proposed timeline would prejudice them.


Next Status Conference: Thursday, December 1, 2016, at 2:00 p.m.


September 23, 2016

Status Conference held on September 23rd, 2016

1. Status of Litigation
Counsel reported that there are currently 542 cases pending in the MDL, with another 100 to be added soon. There are also 30 cases pending in Pennsylvania state court against Janssen Defendants and 19 against Bayer Defendants. There is one case pending in California state court against Janssen Defendants. The parties reported that there were no significant developments in the Pennsylvania cases, but the anticipated trial date remains in December 2017, and some discovery has started.

2. Remand Motions
Counsel discussed the motions to remand, on which the Court recently deferred ruling. One of the motions has been withdrawn because Defendants provided evidence ruling out McKesson as a distributor for the particular drug and pharmacy at issue. The parties discussed their preferred next steps on the remaining motions: Plaintiffs' counsel argued that the Court should grant the motions to remand because Defendants have not been able to rule out that McKesson was the distributor in those cases; Defendants' counsel argued that it was Plaintiffs' burden to show McKesson was the distributor, and also suggested that they could seek discovery to clarify the issue from the pharmacies themselves. The Court deferred ruling on the remaining three motions, and directed Defendants to contact the pertinent pharmacies and determine if McKesson was in fact the distributor of those plaintiffs' drugs within the next 60 days. If doubt remains at that time over whether McKesson was the distributor of Plaintiffs' drugs, the Court noted that it would likely remand.

3. PTO-3 Deficiencies Update
The parties reported that they had submitted a proposed order to show cause to deal with some deficiencies in the PTO-3-required documents, and the Court stated that it would issue the order promptly. The parties reported that they are meeting and conferring over additional deficiencies in PTO-3 information.

4. PFS & DFS Status Update
The parties reported that the vast majority of Plaintiff Fact Sheets that should have been served were served, and the first approximately 100 DFS's from Janssen recently were sent out. The parties are meeting and conferring to resolve deficiencies in the Plaintiff Fact Sheets.

5. Defendants' Motion to Dismiss [Docket No. 235]
The Court heard argument on Defendants' pending motion to dismiss based on statutes of repose, and took the motion under advisement. A written order will issue promptly.

6. Corporate Structure 30(b)(6) Deposition Notices
The parties reported that they have been meeting and conferring about a Rule 30(b)(6) deposition notice that was filed, and almost all issues have been resolved. They anticipate a Rule 30(b)(6) deposition to occur in November.

7. McKesson Discovery Plan
The parties discussed their disagreement over whether there should be discovery relating to McKesson in the MDL. Defendants contend that there should not be discovery regarding McKesson until it is established that there are cases in the MDL in which distributor liability would be allowed and that such liability is not preempted by federal law. Plaintiffs argue that McKesson remains a named defendant and cases against it should be worked up at the same pace as the other defendants. Defendants stated that they would like to bring a motion to dismiss regarding McKesson cases. The Court stated that the parties should submit competing discovery plans prior to the next status conference, and be prepared to discuss when motions would be filed, because the Court plans to set a discovery schedule at the next status conference.

8. Plaintiffs' Proposed Common Benefit Order
Defendants reported that they had recently proposed changes to Plaintiffs' proposed common benefit order. The Court directed the parties to provide an agreement or competing proposals to the Court in two weeks, and any remaining issues could be discussed at the next status conference.

9. Master Answer Update
Defendants agreed to submit their master answer on September 30.

10. Scheduling the October Case Management Conference
The court set the next status conference for Monday, October 24 at 2:00 p.m.

11. Scheduling and Format of Science Day
The parties reported that they reached an agreement over the proposed protocol for science day. The parties' scientists will give powerpoint presentations about fluoroquinolones and peripheral neuropathy for two hours each, with a lunch break in between. The powerpoints will be submitted to the Court prior to science day, but not to the opposing party. The parties proposed that there would be no court reporter, cross examination, or questioning. The Court stated that it would be helpful to have a court reporter create a transcript for the Court's use, to allow for continuity among different law clerks, but that the transcript would not be an official transcript and could not be ordered. The Court set a tentative date for science day for Tuesday, January 17.

12. Plaintiffs' and Defendants' Case-Specific Discovery Submissions
The parties discussed their case-specific discovery proposals. Defendants noted that there was a Lexicon issue in considering bellwethers because there are few Minnesota plaintiffs in the MDL. Plaintiffs noted their preference for discovery on a smaller pool of cases, and subsequent bellwethers either in Minnesota or possibly travelling to other courts or seeking agreement from other courts. The Court directed the parties to meet and confer and submit briefs over any remaining issues by Friday, October 21, which would then be discussed at the next status conference. The Court also noted that a small group of cases would likely be more manageable in selecting bellwethers, and that travelling to hear bellwether cases is not necessarily a problem.

Next Status Conference: Monday, October 24, 2016, at 2:00 p.m.




July 13, 2016

Status Conference held on July 13th, 2016

1. Status of Litigation
Counsel reported that there are currently 488 total pending cases in the MDL: 366 naming Janssen Defendants and 176 naming Bayer Defendants, including 54 cases that involve both defendants. There are also 30 cases involving Janssen Defendants and 16 cases involving Bayer Defendants pending in Pennsylvania State Court. Counsel reported that the state court judge presiding over many of the state court cases issued a case management order setting a trial schedule for December 2017.

2. PTO-3 Update re Outstanding Deficiencies
Counsel for Bayer reported that in their view 33 cases were either deficient in complying with PTO 3 or should be dismissed based on the PTO 3 filing. Defendants have sent correspondence to Plaintiffs whom they believe fall into one of those categories. In response, Bayer has seen 19 dismissals and Janssen has seen 12. Counsel acknowledged that they had not been copying Plaintiffs' co-lead counsel on those correspondence, and they agreed to provide co-lead counsel with two weeks to speak with Plaintiffs' counsel, after which Defendants would propose a show cause order to the Court for any remaining cases in which the plaintiff did not adequately responded. Plaintiffs' counsel agreed with the proposal. Counsel for Bayer also noted that the disputes over PTO 3 compliance did not affect the deadline for Plaintiffs' Fact Sheets.

3. Defense Fact Sheet Pretrial Order
The Court heard argument regarding the disputed portions of the proposed pretrial order addressing Defense Fact Sheets. The disputes discussed included: the length of time Defendants would have to complete the fact sheets; whether Defendants could refer to documents provided rather than filling out charts; whether Defendants had to provide prescribing practices data regarding antibiotics generally or just fluoroquinolones; and, the primary dispute, whether or not Defendants would have to process and search custodial data, such as emails, or if they could just search existing databases. The Court stated that it will consider the parties' arguments and issue a written order soon.

4. Science Day
The parties discussed the format of Science Day, currently scheduled for September 23, 2016. Defendants' prefer to present expert testimony, without cross-examination, discussing the applicable science; whereas, Plaintiffs prefer attorney presentation about the parties' positions and some discussion of the regulatory background of the case. Plaintiffs' counsel were directed to discuss among themselves whether it would be difficult to obtain an expert for two hours of testimony, possibly at a later date if necessary, and the subject will be discussed further at the next status conference.

5. Miscellaneous
The Parties stated that they would meet and confer regarding Plaintiffs' proposed Common Benefit Order.

Bayer Defendants followed up on a case discussed in a prior status conference, DeSalvo v. Bayer HealthCare Pharmaceuticals, Inc., in which counsel had withdrawn prior to transfer to the MDL. DeSalvo's prior counsel agreed to provide his last-known contact information, and the Court will then issue a show cause order.




June 21, 2016

Status Conference held on June 21th, 2016

1. Status of Litigation
Counsel reported that there are currently 484 cases pending in the MDL. There are also 40 cases pending in Pennsylvania state court and 1 case in California state court. The parties discussed the Pennsylvania proceedings, stating that they had submitted proposed case management orders. The parties provided contact information for the state court judge presiding over the Pennsylvania proceedings.

2. Plaintiffs' Short-Form Complaints
Counsel reported that the filing of short-form complaints resulted in dismissal of many cases against both defendants. Janssen Defendants reported that only one pro se case remained without a short-form complaint or dismissal, but that they were working with the Plaintiffs' counsel to get the short-form complaint filed. Bayer Defendants reported that there were two outstanding cases against them in which the plaintiffs had not filed a short-form complaint or dismissal. Janssen Defendants also reported that there are 88 cases in which the plaintiffs would need to file proof of branded use, which may result in further dismissals.

3. Status of Pre-Trial Orders
The parties reported that they submitted a proposed deposition protocol with one disagreement over the number of depositions, and the Court heard argument on the dispute. Plaintiffs' counsel requested 40 depositions for Janssen Defendants, 35 for Bayer, and 10 for Merck. Defense counsel argued for 20 depositions for Janssen Defendants and 20 for Bayer and Merck combined. The Court accepted the Plaintiffs' proposal with a slight modification: 40 depositions for Janssen Defendants and 40 for Bayer and Merck combined.

The parties reported that they had not reached an agreement on the defense fact sheets. The parties agreed to submit a joint proposal or competing proposals by July 5 at 5:00 p.m., with supporting briefs of 12 pages or less submitted the next day, July 6. The issue will then be addressed at the July 13 status conference.

Plaintiffs' counsel stated that the Plaintiffs' Steering Committee will submit a proposed common benefit order three days prior to the next status conference. Plaintiffs' counsel also discussed service waiver agreements, reporting that they were near an agreement with respect to German Bayer defendants, and would report back at the next status conference. Plaintiffs' counsel reported that they were unable to reach an agreement with two Janssen, Johnson & Johnson defendants, and would pursue waiver under Rule 4 of the Federal Rules of Civil Procedure. Plaintiffs will raise the issue again, if necessary, at the August status conference.

4. Plaintiffs' Motion to Amend
The Court heard argument on the Plaintiffs' pending motion to amend the master complaint. Plaintiffs sought to add two additional paragraphs related to a May 2016 safety announcement and label change. Defendants opposed the amendment arguing that it was unnecessary and that it would be used to broaden the scope of the MDL. The Court granted Plaintiffs' motion, finding that they had shown good cause under Rule 16(b) and that Defendants were not likely to be prejudiced by the amendment. The Court did not view the amendment as expanding the scope of the proceeding, and noted that Plaintiffs acted diligently in bringing the motion as soon as possible after the announcement and label change. The Court directed Defendants inform the Court if they needed additional time to address the impact of the amendment or additional time to file their motions to dismiss due to the amendment.

5. Scheduling
Following discussion, the Court stated that science day will occur on Friday, September 23, 2016, at 10:00 a.m.




May 18, 2016

Status Conference held on May 18, 2016

1. Status of Litigation
Counsel reported that there are currently 383 cases filed in the MDL, as well as a CTO filed with four additional cases. Counsel reported that there are currently 39 cases pending in Pennsylvania state court and 1 case in California state court. Counsel discussed the Pennsylvania proceedings, and stated that the state court judge handling those cases would be interested in coordinating with the MDL and open to speaking with the Court. The Court requested that the parties provide the contact information for the judges handling the Pennsylvania cases.

2. Status of Pre-Trial Orders
The Court noted that it would sign the proposed ESI Protocol order and an order addressing severance of the multi-plaintiff actions as soon as possible. Counsel reported that they were meeting and conferring on a pre-trial order addressing deposition protocol, and would submit a proposed order or competing proposals three days before the next status conference. Counsel reported that they were in the process of reaching an agreement on a proposed order addressing defense fact sheets, and would submit a proposed order or competing proposals; however, defense counsel reported that they may not submit a proposal until after the next status conference because of a remaining disagreement.

3. PSC's Proposal for Bellwether Selection Protocol
Plaintiffs' counsel noted that they submitted proposed bellwether selection protocol to the Court. Defense counsel stated that they would not be able to respond with a proposal until after reviewing the plaintiffs' fact sheets. The Court stated that the defendants' response would be due in September, giving them time to consider the plaintiffs' fact sheets.

4. Update on Recent FDA Action / Amendment to Master Complaint
Plaintiff' counsel reported that the FDA recently issued a letter requiring manufacturers of Fluoroquinolones to update labels with a black box warning, including peripheral neuropathy, and also that Fluoroquinolones should no longer be prescribed for certain common conditions because of a risk of permanent injuries. Plaintiffs' counsel wishes to add this information into the master complaint so that the Court can consider it at the motion-to-dismiss stage. Plaintiffs' counsel stated that they had met and conferred with defense counsel, and requested a briefing schedule for a motion to amend the master complaint. Defense counsel responded that allowing this letter into the master complaint could broaden the MDL because it discusses other injuries, including tendon rupture, in addition to peripheral neuropathy — the subject of this MDL.

The Court set a briefing schedule for the plaintiffs' motion to amend the master complaint: the plaintiffs are to submit their motion and brief no later than May 23, the defendants may then respond no later than June 9, and the plaintiffs may file their reply no later than June 16. The motion will be considered at the June 21 status conference.

Plaintiffs' counsel also suggested several minor changes to the master complaint, including adding a Bayer entity as a defendant, changes to avoid redaction, and a citation to an additional case. Defense counsel did not object to these changes, and plaintiffs' counsel agreed to amend the complaint promptly.




April 21, 2016

Status Conference held on April 21, 2016

1. Status of Federal and State Court Filings
Counsel reported that there are currently 383 cases filed in the MDL, including four or five multi-plaintiff complaints that account for 328 plaintiffs. Counsel reported that there are currently 39 cases pending in Pennsylvania state court and 1 case in California state court.

2. Motion to file Master Complaint under seal
The parties discussed Plaintiffs' motion to file the master complaint under seal. (Docket No. 140) Plaintiffs' counsel reported that the master complaint included information from documents marked as confidential under protective orders prior to transfer into the MDL, and thus, Plaintiffs' counsel requested to file the master complaint under seal and along with a redacted version. Defendants' counsel opposed the motion, and suggested that Plaintiffs reference the documents without quoting them and file the exhibits under seal. The Court GRANTED Plaintiffs' request, directing Plaintiffs to file the master complaint under seal as quickly as possible. The Court directed the parties to meet and confer about the redacted version.

3. Status of Pre-Trial Orders
Plaintiffs' counsel reported they have submitted proposed pre-trial orders to the Court, including: Pre-Trial Order No. 5, Protective Order, Preservation Order, Plaintiff's Fact-Sheet Order and the Plaintiff's Fact Sheet. The parties have not yet submitted a proposed order discussing ESI protocol. Counsel suggested the parties were close to an agreement. The parties agreed to continue discussions and file a joint proposal or competing proposals 7 days before the next hearing on May 18, 2016. With regard to the Defendants' Fact Sheets, the parties agreed to meet and confer and submit a proposed order or competing proposals 3 days prior to the June 21 status conference. Defendants' counsel requested that they receive a first draft of Plaintiffs' requests as soon as possible so that they can prepare. The parties will meet and confer with regard to deposition protocol and submit a proposed order or competing proposals 3 days before the May 18 status conference.

4. Bellwether Selection Protocol, Scheduling and Trial Dates
Plaintiffs' counsel suggested that the parties move quickly to establish a bellwether selection protocol and trial dates. Plaintiffs' counsel argued that it would be difficult to manage related state cases without a set MDL schedule to provide the state court judges. They proposed meeting and conferring on the scheduling issues to see if a resolution could be reached, and submitting competing proposals at the next status conference. Defendants' counsel responded that until they reviewed the plaintiffs' fact sheets they would not be able to come up with a plan. Thus, they proposed deferring the scheduling issue until late August or September.

The Court directed Plaintiffs to provide their vision for a schedule going forward 10 days prior to the May 18 status conference. The parties will discuss scheduling further at the next status conference so that the Court can understand Plaintiffs' proposed schedule and the potential roadblocks that Defendants envision. The Court anticipates deciding the scheduling issue sometime this summer.

5. Scheduling Science Day
Plaintiffs' counsel suggested that Science Day occur in June in abbreviated fashion, with an hour for both sides and without experts. They stated that it can be helpful to have this information at the beginning of an MDL to educate the Court about the particular issues that will arise in discovery. Defendants' counsel raised scheduling conflicts in June and July, and suggested that the science presentation would be more useful after the counsel had access to the plaintiffs' fact sheets and can give more specific information. Defendants' counsel suggested scheduling Science Day later in the summer. The Court stated that Science Day should occur in mid-to-late August, noting that it is helpful to have this introduction to the applicable science early in the process.

6. Motions for Remand
The parties argued four motions for remand to California state court. Plaintiffs argued that the cases lacked complete diversity because they involved California plaintiffs, and McKesson, a distributor with its principal place of business in California, was a named defendant in those actions. Defendants argued that the Court should defer ruling on the issue in the interests of judicial economy, and that McKesson was fraudulently joined because the plaintiffs do not intend to pursue claims against it and there was no reasonable basis for the claims, and thus the Court could ignore its presence for diversity purposes. The Court took the motions under advisement and will issue a written order.

Upcoming Status Conferences:
Wednesday, May 18, 2016 at 1:30 PM;
Tuesday, June 21, 2016 at 1:30 PM;
and Tuesday, July 19, 2016 at 1:30 PM.




March 15, 2016

Status Conference held on March 15, 2016

1. Status of Applications for Appointment of Lead Counsel
The Court stated that it was satisfied with much of the Plaintiff's proposed leadership structure. However, the Court requested that counsel consider adding a women attorney to the Plaintiffs' Executive Committee. Plaintiffs' counsel agreed, and recommended adding Yvonne Flaherty to the committee, in addition to her role as Plaintiffs' Liaison Counsel. The Court agreed with the proposal, and directed Plaintiffs' counsel to submit a revised Pretrial Order No. 4 reflecting the change, which it would then consider and sign.

2. Status of Federal and State Court Filings
Defense counsel reported that there are currently 306 cases filed in the MDL and 6 on conditional transfer orders. Counsel also reported that the group of Oklahoma cases - including 325 plaintiffs from 6 complaints - is in the process of being transferred. Counsel reported that there are currently 31 related cases in state court, including 1 in California, 29 in Pennsylvania, and 1 in New Jersey. Defendant Bayer's counsel also brought a scheduling issue to the Court's attention relating to the Pennsylvania state court proceedings. Counsel expressed concern that presently the discovery schedule in those cases are ahead of the MDL's schedule. Both plaintiffs' and defense counsel discussed the issue. The Court stated that the parties should continue to work on the schedule in the MDL, and once approved, the state proceedings could be coordinated with that schedule.

3. Status of Motions for Remand
The parties reported that motions for remand had been filed in four cases within the MDL. The Court will hear argument on those motions at the next status conference on April 21, 2016. Additionally, one other case had a motion for remand pending before being transferred into the MDL, but the motion has not been refiled within the MDL. The Court directed counsel to refile the motion as soon as possible, so the Court can handle it near the other motions.

4. Entry of Deadlines for Proposed Pre-Trial Orders
The parties discussed their process for agreeing on remaining pre-trial scheduling matters. Plaintiffs' counsel stated that there were three principal areas of disagreement: (1) deadlines for custodial production, (2) deadlines for nonexpert discovery, and (3) whether or not there should be a bellwether protocol in place. Generally, plaintiffs' counsel favored setting firm deadlines and establishing a protocol quickly, whereas the defense counsel wished to have additional information and more time before setting deadlines. The Court directed the parties to continue to work with each other on the discovery deadlines until March 25, 2016. If any issues cannot be resolved, the parties will submit simultaneous briefs addressing their differences by March 30, 2016. The Court also stated that it would return to the issue of a bellwether protocol at the next status conference.

Upcoming Status Conferences:
Thursday, April 21, 2016 at 1:30 PM;
Tuesday, May 17, 2016 at 3:00




February 24, 2016

Status Conference held on February 24, 2016

1. Status of Applications for Appointment of Lead Counsel

Plaintiffs' counsel reported that an omnibus motion for appointment of lead counsel was filed. The deadline for objections to that motion is Friday, February 26, 2016. Plaintiffs' counsel will then submit a proposed order for the Court to consider.

2. Status of Federal and State Court Filings

The parties represented that there are currently 425 cases filed in the MDL. Of those cases, 289 relate to Jansen, 136 relate to Bayer, and 58 relate to both defendants. Five cases involve conditional transfer orders. Some cases remain pending in state court, including one case in California, 28 cases in Pennsylvania, and one case in New Jersey. Defense counsel reported that she expected some coordination between plaintiffs in the MDL and the state court actions because there is overlap in counsel. Additionally, the parties reported that there are six complaints involving 325 plaintiffs currently in Oklahoma, in which there has been consent to removal and which will be transferred into the MDL.

3. Status of Motions for Remand

The parties reported that four cases had motions for remand pending before they were transferred into the MDL. The parties inquired into the proper procedure for the Court to consider the motions for remand. The Court stated that the parties will have to refile the motions and establish a briefing schedule. Then, the motions could be argued at a later status conference.

4. Pre-Trial Order on Master Pleadings and Form of Short Form Complaint

The parties submitted a proposed Pre-Trial Order Number 3 to the Court with two areas of disagreement. Since that time, the parties have resolved one of the disagreements, and will submit a new proposed order with changes. However, the parties continue to disagree on the portion of the order describing the requirements for plaintiffs' short form complaints. The parties discussed the disagreement before the Court. The dispute centers around whether plaintiffs alleging liability based on branded products after certain dates must provide a supporting prescription record along with their short form complaints. Plaintiffs' counsel argued that requiring this information in the short form complaint is inappropriate, among other arguments. Defense counsel contends that the information would be helpful to quickly deal with the statute of limitations defenses, among other arguments. Defense counsel may provide the Court with written submissions on the issue by Wednesday, March 2, 2016. The plaintiffs will have until Wednesday, March 9, 2016 to respond, and then the defendants may reply by Monday, March 14, 2016.

5. Entry of Deadlines for Proposed Pre-Trial Orders on Other Matters

The parties also reported that they anticipated further proposed pretrial orders on issues including: a protective order, ESI protocol, a preservation order, and a case management plan. Plaintiffs' counsel suggested requiring joint submission or competing proposals three days before the next status conference. Defense counsel suggested that the parties meet and confer on these orders, but suggested that the next status hearing may be too soon to reach an agreement on them. The Court emphasized that the parties should work to keep these issues moving quickly, and that the parties should meet and confer on these orders.

Upcoming Status Conferences:

Tuesday, March 15, 2016 at 1:30 PM;
Wednesday, April 13, 2016 at 1:30 PM;
Tuesday, May 17, 2016 at 3:00 PM.




January 12, 2016

Status Conference held on January 12, 2016

The Court held a formal status conference in In Re Fluoroquinolone Products Liability Litigation on January 12, 2016. The parties reported the total number of cases currently pending. The parties anticipate additional filings. The parties noted that there are pockets of related state court filings in Pennsylvania and California state courts.

1. Timing for Counsel Applications

The parties discussed the proposed timing for appointment of lead counsel, the plaintiffs' steering committee, and liaison counsel, stating that:

  • - Applications and nominations are to be filed no later than January 26, 2016
  • - Objections to any application must be filed no later than February 2, 2016

2. Pretrial Order

The parties discussed recommendations for Pretrial Order #1. With regard to pending motions, the parties suggested that pending motions filed in cases before they were transferred no longer be considered pending. With regard to pleadings, the parties suggested that the Plaintiffs' Steering Committee file a master complaint within 60 days. Then, within 30 days, individual plaintiffs would file short form complaints. The parties suggested that they would meet and confer about the form that short form complaints would take. Defendants could then move to dismiss individual complaints, and file an omnibus response.

Defendants indicated that statutes of limitations issues would arise in many of the underlying cases moving forward. Defendants suggested that plaintiffs include identification of usage dates.

The parties suggested that attorneys be able to proceed pro hac vice subject to certification by counsel that they are in good standing in any U.S. District Court. The parties suggested that plaintiffs' counsel would submit a waiver of service to defendants' counsel within 30 days of filing, and then within the period prescribed by the rules, defense counsel would return the waiver. The parties noted that there was a disagreement over how to handle direct filing.

The Court requested that the parties submit a draft pretrial order addressing agreed upon issues. The Court would then work toward an amended pretrial order once leadership decisions are made, and further agreements are reached. The Court noted that it would prefer a diverse leadership group, and suggested including some participants without significant experience. The Court noted that a website would be set up and updated for the MDL.

3. Future status conferences/status of MDL

Next Status Conferences:

Wednesday, February 24, 2016 at 1:30pm
Tuesday, March 15, 2016 at 1:30pm.

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