Fluoroquinolone

Fluoroquinolone - MDL No. 15-MD-2642

This multidistrict litigation consists of a significant number of cases currently pending before this Court involving fluorquinolones. Fluoroquinolones are antibiotics used to treat a variety of bacterial infections, including upper respiratory infections. Plaintiffs have been prescribed a Fluoroquinolone, and allege that it causes neuropathy. They claim that defendants' warnings about this alleged side effect were inadequate.

Defendants Bayer Healthcare Pharmaceuticals, Inc, Merck & Co, Inc., Johnson & Johnson, Janssen Research & Development LLC, McKesson Corporation, Shering Corporation, and Bayer Corporation allegedly developed, manufacture and market fluoroquinolones. Defendants deny that fluoroquinolones are defective or unreasonably dangerous. Defendants also deny that they failed to provide adequate warnings.

The Judicial Panel on Multidistrict Litigation determined that centralizing the Fluoroquinolone Neuropathy cases was appropriate. Based on a number of factors, the Judicial Panel determined that the District of Minnesota was an appropriate forum. All Fluoroquinolone Neuropathy federal cases have been ordered transferred to the District of Minnesota, and assigned to the Honorable John R. Tunheim as MDL No. 15-2642.

Judge Tunheim is coordinating discovery and other pretrial matters in these cases. Subsequent Fluoroquinolone Neuropathy cases filed in federal court will ordinarily be transferred to the District of Minnesota and become part of MDL No. 15-2642 as “tag along” cases. When discovery and other pretrial matters have been concluded, the cases that constitute MDL No. 15-2642, unless otherwise resolved, will be transferred back to the districts in which they were originally filed for trial or other proceedings................

In Re:

15-MD-2642

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MDL Judge(s)

Judge John R. Tunheim

Current Developments

Current Developments:

Last Updated: February 14, 2020

2021

2020

2019

November 20, 2019

Status Conference held on November 20, 2019

1. Settlement Update

Counsel for Defendant Janssen stated there are an estimated fifty (50) cases remaining. Sixteen (16) of those cases were stipulated for dismissal on the morning of November 20, 2019. Leaving thirty-four (34) open that are all moving towards resolution. Counsel for Bayer noted that the master settlement agreement has been funded. Counsel noted that three or four cases remain.

2. Hearing on Orders to Show Cause

On October 7, 2019, Defendants Bayer and Merck filed a Motion for an Order to Show Cause seeking dismissal of eighteen cases for failure to comply with Pretrial Order 18. (Docket No. 888.) Judge Tunheim granted dismissal with prejudice in all but three cases listed in Docket No. 888. Those cases are as follows:

Reed v. Bayer Corporation, et al., No. 16-cv-02059
Chauvin v. Bayer Corporation, et al., No. 18-cv-00579
Blansette v. Bayer Corporation, et al., No. 17-cv-04127

On October 22, 2019, Defendants Bayer and Merck filed a Motion for an Order to Show Cause Seeking dismissal of two cases for failure to comply with Pretrial Order 18. (Docket No. 915.) Judge Tunheim granted dismissal with prejudice of the two cases listed in Docket No. 915. Judge Tunheim stated a written order listing the cases dismissed will be filed on the record.

The parties then set the following deadlines for the three remaining plaintiffs to comply with Pretrial Order 18.

Reed v. Bayer Corporation, et al., No. 16-cv-02059
- Deadline to Comply with Pretrial Order 18: January 20, 2020.
Chauvin v. Bayer Corporation, et al., No. 18-cv-00579
- Deadline to Comply with Pretrial Order 18: December 30, 2019.
Blansette v. Bayer Corporation, et al., No. 17-cv-04127
- Deadline was not altered and remains November 26, 2019.

3. Scheduling of Next Status Conference

The next status conference will be held February 19, 2020 at 2:00 p.m. which will coincide with Defendants’ planned motion for an order to show cause.

September 10, 2019

Status Conference held on September 10, 2019

1. Bayer & Merck Defendants Settlement Update

Defendants will file stipulations of dismissal for all cases that are participating in the master settlement agreement, which is around 340 cases. For the convenience of the Court, Defendants will file two separate stipulations; one which will dismiss the entire action, and one in which only the Bayer & Merck Defendants are being dismissed.
The Court's Order to Show Cause (Docket No. 857) that was answerable on September 10, 2019 is now MOOT as the parties filed stipulations of dismissal in all eight cases pertaining to the Order. Defendants will submit appropriate proposed orders. There is one outstanding Order to Show Cause that is returnable on Sept. 30. There are approximately 26 plaintiffs that have either opted-out or are not participating in the settlement. Defendants will file a motion for an Order to Show Cause on October 4 for anyone who has not complied with the document control order.

2. Motion for Establishment of Common Benefit Fund Update
The plaintiffs believe they can reach consensus regarding a fair and reasonable allocation of the common benefit fund. The plaintiffs' motion and brief regarding allocation of the common benefit fund will be filed by September 30, 2019. Any responses will be due on October 21, 2019. Any replies will be due on Friday, October 25, 2019. The Court will hold a hearing on Thursday, October 31, 2019 at 10:00 a.m. CST regarding the motion.

3. Scheduling of Next Status Conference
The next status conference will be held the same day as the hearing on plaintiff's motion regarding the common benefit fund: October 31, 2019 at 10:00 a.m. Defendants' planned October 4, 2019 motion to show cause will be returnable on October 31, 2019 as well.

August 15, 2019

Status Conference held on August 15, 2019

1. Bayer & Merck Defendants Settlement Update
Defendants will fund the settlement by September 16, 2019. Thus far, funding is on target. Once completed, Defendants plan to file one dismissal with prejudice. Defendants also plan to file a Motion for Order to Show Cause on August 19, 2019, regarding eight cases that were filed after the voluntary settlement program was announced. On October 4, 2019, Defendants will file an additional Motion for Order to Show Cause regarding opt-out or otherwise non-participating plaintiffs, which includes 27 cases as of now. A subsequent Motion for Order to Show Cause will be filed in mid-October on two later-filed cases if the plaintiffs are not in compliance with PTO 18 at that time. A motion to withdraw as counsel has been filed in the Schwoebel case (15-cv-3401). Defendants oppose the motion only to the extent that it seeks to stay the case or otherwise extend the deadlines set forth in PTO 18. The Court will consider the parties' filings and issue an order soon.

2. Janssen Defendants Settlement Update
57 cases remain. Four pro se cases are proving difficult, but the parties are making progress on those and on the remaining cases.

3. Vloch Case
Janssen defendants were dismissed on August 8, 2019. Defense counsel wonders how to address the remaining generic defendants in the case and would like to file a motion for judgment on the pleadings. The Court asks that defense counsel meet and confer with plaintiff's counsel regarding the motion. The motion can be filed with this Court, which will determine whether it or the transferee court should rule on the motion.

4. Scheduling of Next Status Conference
A phone conference is scheduled for 11:00 a.m. CST on September 10, 2019. At this conference, the parties will address a proposed briefing schedule regarding the common benefit fund. An in-person status conference will be scheduled towards the end of October, with a firm date to be set at the September phone conference.

June 20, 2019

Status Conference held on June 20, 2019

1. Bayer & Merck Defendants Settlement Update
a. Master Settlement Agreement Update
Plaintiffs report that there were 365 cases file that were eligible for the Master Settlement Agreement (“MSA”). They have received participation agreements or releases from all but 28 of those plaintiffs. Under Pre-Trial Order (“PTO”) 18, deadlines apply to plaintiffs who choose not to participate in the MSA, and the parties agree that those deadlines will begin to run on June 6. The parties have agreed that the MSA will proceed in conformance with their established participation rate.

b. Dismissal Processing – Court authorization for global dismissal
Defendants suggest filing a global dismissal for all the MSA-participating Plaintiffs. The dismissal would loosely follow the dismissals filed in the Janssen cases. The Court agrees that a global dismissal is appropriate. The remaining cases fall into two buckets: cases filed after the MSA and cases filed before the MSA but whose plaintiffs have chosen not to participate in the MSA. There are 22 post-MSA cases, and 19 have not fully complied with the requirements of PTO 18 within the time specified (120 days).

c. Pending Motion under PTO 18 for Order to Show Cause for post-MSA filed cases (Docket No. 801)
Defendants have filed a motion for an Order to Show Cause (“OTSC”) regarding the 19 post-MSA cases in which the plaintiffs have not filed the documents required under PTO 18 within the specified time (120 days). 18 have filed short form complaints, and one plaintiff filed the plaintiff fact sheet. The Court will file the OTSC shortly.

d. PTO 18 OTSC for non-participating MSA cases (approx. Oct. 2019)
There are currently 28 and will likely end up being 26 non-participating MSA cases. The deadlines set forth in PTO 18 for filing materials will be on or before October 4, 3029. Defendants intend to file another motion for an OTSC on October 5, 2019.

e. Establishment of Qualified Settlement Fund
There is a pending motion to approve a Qualified Settlement Fund (“QSF”) that the parties agree to. The parties note that funding will only get moving once the order is in place, and the Court intends to file it right away.

f. Entry of Qualified Protective Order and Status of Medicare and private lien resolution
Plaintiffs will file a motion for a Qualified Protective Order (“QPO”), which will be almost identical to the QPO filed in the Janssen cases

2. Janssen Defendants Settlement Update
Defendants report that 106 cases are on the docket, but 85 have stipulations that will be signed and filed shortly. 17 “open” cases remain, four plaintiffs are pro se and 13 have counsel. Defendants propose resolving these cases within 30-45 days and will file stipulations. On the pro se cases, Defendants will invite them to meet and confer to attempt to resolve the cases. Defendants have confirmed with the pro se plaintiffs’ prior counsel that they have in fact withdrawn. The Janssen Defendants will report on the status of these cases at the next status conference.

Scheduling of Next Status Conference
The Court will file the OTSC and hold a show-cause hearing at 10:00 a.m. on Thursday, July 11, 2019. The next status conference will be by phone at 2:00 p.m. on Monday, August 12, 2019.

2018

July 25, 2018

Status Conference held on July 25, 2018

1. Status of Litigation
a. Federal Filing Update
Approximately 356 Bayer cases remain pending in the MDL. 260 are Bayer only; 97 involve Bayer and Janssen. 4 more transferred in yesterday.
b. Philadelphia State Court Peripheral Neuropathy Litigation, including report on Bryant trial setting
The Bryant case is set for jury selection on September 28, 2018, with trial to start on October 1. 3 more cases have been filed in Philadelphia state court. Since they were filed after the Bryant case, they have not yet been set for trial.
c. Dismissal of Shepherd case
Stipulation of dismissal was entered today.

2. Scope of Case-specific Expert Reports
The parties indicated that there is a dispute regarding the scope of case-specific expert reports. Plaintiffs have 7 days to file a brief on this issue; Defendants have 10 additional days to respond.

3. Timing and Structure of Daubert Hearing
The Court will hold a 1-day hearing on Defendants’ Daubert motion. The Court will endeavor to schedule this hearing for September 13, 14, or 17, and will notify the parties shortly.

4. Motion for Continued Sealing
The parties have submitted a proposed order regarding continued sealing, which the Court will sign.

5. Phase II Bellwether Plan
The Court believes that a second phase of bellwether selection should begin soon. The Court will allow parties to talk for two weeks. At that time, the parties are to send a letter (jointly or separately) indicating points of contention. The Court will resolve any outstanding issues.

6. Motions to Withdraw
Court will grant the two motions.

7. Scheduling of Next Status Conference
The next status conference will be held in conjunction with the Daubert hearings.

STAY OF BAYER AND MERCK CASES

The Court hereby directs that all proceedings involving Plaintiffs and the Bayer and Merck Defendants shall be stayed for a period of 60 days. The parties are relieved from any deadlines related to cases filed against the Bayer and Merck Defendants. The briefing schedule on the pending bellwether dispositive and Daubert motions, and the upcoming bellwether trial dates, are vacated until further notice from the Court.

May 30, 2018

Status Conference held on May 30, 2018

1. Status of Litigation a. Federal Filing Update 348 cases remain in the MDL.
b. Philadelphia State Court Peripheral Neuropathy Litigation, including report on Bryant trial setting
In Philadelphia, there are 5 cases pending. In Bryant, the parties met with Judge Younge. Jury selection will begin September 28, 2018, and trial will begin October 1, 2018. Judge Younge wants Bryant tried by the end of the calendar year and before the MDL. A trial judge will likely be assigned only just before the trial. Defendants have asked the Court to hold a hearing on the Daubert motions. Plaintiffs' opposition to the motion and to their letter requesting a hearing is due June 19, 2018. Defendants' reply will be due July 2, 2018. Defendants ask that the Court invite Judge Younge or the assigned trial judge to attend the Daubert hearing. Plaintiffs note that Judge Younge is not likely to be the trial judge and that he indicated that he would not be inclined to participate in a joint hearing.

The Court indicated that it is inclined to hold a live Daubert hearing because it is best practice in MDLs. The Court will not decide the issue until it receives the parties' response and reply briefs. Should the Court decide to hold a live Daubert hearing, it will invite Judge Younge or the assigned trial judge to participate.

2. Discovery Update a. Case-specific Expert Discovery
For the cases that are still active in the bellwether pool, all case-specific expert depositions have been scheduled. Depositions for Plaintiffs' cases will likely be completed by July 11, 2018.

3. Report on MDL bellwether dismissals
Two cases in the pool were voluntarily dismissed recently: 2 cases in pool were voluntarily DMed recently. Cale (15-3607) and Dodd (15-4403). Four Avelox cases and one Cipro case remain. Assuming all these cases go forward, they are sufficient to populate the trial dates. The parties agree that additional cases should not be worked up now and that the issue of a second round of bellwether cases should be discussed. Plaintiffs' response is due June 4, 2018. Defendants note that, if a second round is selected, some might be ready to populate the later trial dates set for the first round's cases. While the Court has not yet decided whether to proceed with a second round of bellwether cases, the parties should be talking about it.

4. Order to Show Cause on failure to provide PFSs
Defendants have seen no response to the Court's latest Order to Show Cause. After confirming with all Plaintifs' attorneys, Defendants will file for dismissal of those cases. Three new cases may be ready for an order to show cause: Eppinger (18-319); Schriner (18-119); and Phillips (17-1593). They have overdue Plaintiff Fact Sheets. After confirming with Plaintiffs' attorneys, Defendants will submit another proposed Order to Show Cause. Several other Plaintiff Fact Sheets are late, but the parties are in the meet and confer process.

5. Scheduling of Next Status Conference
The next status conference is scheduled for Thursday, July 12, at 3:00pm.

April 20, 2018

Status Conference held on April 20, 2018

1. Status of Litigation
a. Federal Filing Update
Plaintiffs indicate that there are currently 346 cases in the MDL.
b. Philadelphia State Court Peripheral Neuropathy Litigation
In Philadelphia, there are 4 total cases. One has been worked up. Plaintiffs attended a settlement conference on that case, but it was not resolved. The parties have a pretrial conference set for May 2018, at which time they should be given a firm trial date, likely in late summer or fall.

2. Discovery Update
a. Outstanding Written Discovery
There remains one outstanding piece of written discovery. The parties met and conferred and are working through issues. Two sets of written discovery were served around the fact discovery deadlines and objected to in January 2018. The parties will begin meet and confer on those filings and will file motions if necessary. Two plaintiffs have not turned in their written fact sheets, which were due several months ago. Defendants have met with the PLC and will file proposed orders to show cause.
b. Expert Discovery
Expert discovery is moving forward and everything has been scheduled. The parties have had some issues with conduct during expert depositions, particularly with regard to objections. The Court reminded the parties that the Federal Rules apply and it expects parties to follow them. It also expects civility. Aside from privilege, witnesses need to answer to best of their ability. Any other objections should just be made and reserved.

3.Proposed Pretrial Order No. 16
The Court will file PTO 16, which the parties have agreed to.

4.Defendants' Proposal re. Daubert Motions
Parties filing Daubert motions will have a 75-page total limit (opening and reply) on an omnibus motion. Parties responding will have a 75-page limit for the response. Should Defendants seek live testimony on the Daubert motions, they should file a 5-page brief or letter explaining why it is necessary. Plaintiffs have five pages to respond.

5.Defendants' Proposal re. Additional Bellwether Selections
Defendants propose an additional round of bellwether case selection and presented a PowerPoint with reasons for the request and proposed criteria for selecting the second round. Plaintiffs oppose the proposal. The Court would like a written response from Plaintiffs within 45 days and will take up the issue at the June status conference.

6.Scheduling of May Status Conference
The May status conference is scheduled for May 30, 2018, at 10:00am.

March 1, 2018

Status Conference held on March 1, 2018

1. Status of General Litigation
a. Federal Filing Update
Plaintiffs indicate that there are 320 cases with one or more Bayer defendants. There has been an increase of about 30 cases, in part due to the severing of an Oklahoma case and in part due to several cases being transferred in.
b. Philadelphia state court peripheral neuropathy litigation
In Philadelphia, the Bryant case remains. There was a pro se case, but it was dismissed. Two more cases have recently been filed, but they are considered 2017 filings and are not subject to the trial deadline of the Bryant case.
The parties had an informal conference with Judge Younge’s clerk. They were told to request a firm trial date, which would likely be set for sometime in the fall. The parties are unsure whether it would be before or after the first bellwether trial here. The parties hoped to seek an extension but were told they could not do so until they show up at the final pretrial conference in May. The parties are trying to track the same schedule for experts in Bryant as they are here.

2. Discovery update
a. Outstanding written discovery
There remains an outstanding written discovery request, about which the parties plan to meet and confer. Plaintiffs submitted general causation and liability reports on February 16, 2018. Defendants’ reports are due March 16, 2018. b. Remaining depositions
Three fact depositions remain. One sales representative deposition is scheduled for tomorrow. The other two are for a treating physician and prescribing physician in the Heller case. Dr. Comstock is scheduled for Tuesday, March 6, 2018, and Dr. Loreno is scheduled for March 12, 2018. That will complete fact depositions.

3. Plaintiffs’ request to amend scheduling order
Because the Court granted Plaintiffs additional time to submit their bellwether trial case selections, they now face a quick turnaround with the case-specific expert report deadlines, which would require them to prepare expert reports for all the cases in the bellwether pool in order to be done on time. To avoid spending unnecessary money to develop expert reports that might not be in play, Plaintiffs ask for an extension of the deadline for disclosures related to case-specific expert reports. Defendants oppose this request because they are concerned about continuing to push back intermediate dates, especially given that the turnaround time for depositions is already very tight.
The Court will move Plaintiffs’ case-specific expert designation deadline to April 11, 2018. A short order will be forthcoming. If the parties wish to move other deadlines accordingly, the Court asks that they submit a joint proposal.

Upcoming Status Conference: Tuesday, April 17, 2018, at 4:30 p.m.

January 18, 2018

Status Conference held on January 18, 2018

1. Status of General Litigation
a. Federal Filing Update
293 Bayer cases are still pending, with a few new ones filed this week. Some of the new cases have been transferred or will be transferred.
b. Philadelphia state court peripheral neuropathy litigation
Regarding the Bryant case, the parties had a conference call and hope to convert the trial ready date that has already been set into a firm trial date. The parties will reach out to Judge Younge to see if they can get a hearing and ask Judge Younge to move that date to one that better fits into the MDL schedule. The pro se case, Turner, is still pending. There was a hearing today regarding plaintiff's failure to show, and plaintiff again did not show. Judge Younge took Defendants' Motion for Sanctions and Dismissal under advisement. Two new cases have been filed in Philadelphia but the case management has not been set yet. Because they’re 2017 filings, they should not be subject to end of 2018 deadline. The Bryant case was filed in 2015, which is why it needs to be tried before the end of 2018. The Court recommended that the parties try to get in front of Judge Younge because he previously seemed concerned about the number of cases, and the fact that there is only one case might make his schedule more flexible. The Court asks that the parties keep him advised on this issue.

2. Discovery update
Written discovery is almost complete. There is one outstanding request.
a. Bayer/Merck depositions
Counsel reported that two Bayer A.G. depositions remain. One is scheduled for February 2, 2018, and the other is tentatively set for February 8, 2018. These fall past the discovery deadline, but parties have agreed to take the depositions after the deadline.
b. Treater depositions
Five treater depositions remain. Two have been set for next week. A third was served with a subpoena requiring appearance next week, but the deponent has some health issues and the parties are in agreement about pushing that off until after the discovery deadline if necessary. Two depositions remain that the parties have not been able to set dates for. Defendants tried to get in touch with and served a subpoena on Dr. Deeds (?), a prescribing physician, but his attorney reached out objecting based on his health (recent surgery and still in recovery). The nurse practitioner, Ms. Gilbert, has not responded. The address the parties had was an old work address, and she had not worked there for two years. The parties just received a new address today. Mr. Simms thinks that they will not have a problem getting in touch with her soon at the new address and is happy to take the lead on that, even by having her served tomorrow. Plaintiffs are amenable to taking the deposition after the discovery deadline if necessary.
c. Sales representatives
Five sales representative depositions remain but have been scheduled. One was scheduled for tomorrow but because of weather the deponent is unable to attend. Plaintiffs will seek to depose her shortly after the discovery deadline. The other four depositions are set for next week.

3. Update on Bellwether Trial Selection Process
The parties have agreed to take the three discussed cases out of the pool because of statutes of limitations motions that Defendants believe will be successful. The trial selection pool is down to seven – one Ciprofloxacin and six Avalox cases. The statute of limitations cases will proceed on the individual case motions schedule.

4. Status on December 21, 2017 Order to Show Cause
Only one plaintiff remains that has not turned in a plaintiff fact sheet. Plaintiffs’ counsel seeks extension – 120 days – to have the plaintiff serve the fact sheet. Defendants have no position on this request and defer to the court. The Court will grant the extension of 120 days but notes that this will be the final extension.

5. Motions to Establish Qualified Settlement Fund
There is one pending unopposed motion regarding this issue. The Court notes that it was filed yesterday and will take a look.

Upcoming Status Conference: Thursday, March 1, 2018, at 4:00 p.m.

2017

December 20, 2017

Status Conference held on December 20, 2017

1. Status of General Litigation
a. Federal Filing Update
293 Bayer cases are still pending. 205 are Bayer only, while 88 are combination cases.

b. Philadelphia state court peripheral neuropathy litigation
Counsel reported that two cases are still pending in Philadelphia. The first case is Turner, which is a pro se case where Plaintiff has failed to appear for his deposition. Counsel for Defendants intends to file a motion to dismiss based on that failure to show. The second case is Bryant, where there are some outstanding issues with scheduling. The Court talked to Judge Younge a few weeks ago about rescheduling that case for after three MDL bellwether cases. Counsel for Defendants stated that Bryant’s attorneys want a December 2018 date, which would be a challenge given that the bellwether trials are scheduled for November 2018, January 2019, and February 2019. Defendants’ motion to postpone/move the trial was denied by Judge Younge. The Court mentioned that Judge Younge is concerned about getting the trial done by the end of 2018 and does not have a lot of discretion to move the cases. Counsel for Defendants recommended that the Court call Judge Younge again or that the parties set up a conference with him. Counsel for Plaintiffs noted that, as of now, the parties are barreling toward a June date. They indicated that they are willing to do whatever is best for the courts.

2. Discovery update
a. Bayer/Merck depositions
Counsel reported that three Bayer A.G. depositions remain and are scheduled for January in Amsterdam. Two U.S. Bayer depositions remain. One is scheduled for January, and the other is scheduled by agreement of the parties in early February, just after the discovery cutoff date.

b. Treater depositions The parties are working together regarding case-specific discovery. Counsel reports that 43 treater depositions have already been completed, and the parties are working to schedule three more. Counsel for Plaintiffs stated that scheduling the last three has been challenging because some of the doctors have been unwilling to give them a date and another has asked for a subpoena. Counsel for Defendants noted that they would like to reach out and contact the three remaining treaters, solely for the purpose of scheduling dates, because they are concerned about completing everything by the January discovery deadline. However, Plaintiffs have not allowed them to reach out to the treaters at all. Counsel for Plaintiffs opposed Defendants’ request that the Court grant them permission to reach out to the treaters solely for scheduling purposes and preferred that the Court issue subpoenas. The Court agreed to allow Defendants to reach out to the remaining three treaters solely for the purposes of scheduling until the end of next week. At that point, if no progress has been made, the Court will issue subpoenas.

c. Sales representatives
Counsel for Plaintiffs have requested dates for twelve sales representatives and have scheduled five depositions.

3. Order to Show Cause regarding Plaintiffs who have not submitted Plaintiff Fact Sheets
The parties agreed that an Order to Show Cause was appropriate at this time in the four cases where plaintiffs have not submitted Plaintiff Fact Sheets. Counsel for Plaintiffs noted that they had been unable to make contact with plaintiffs in three of the cases. The Court agreed to issue the order.

4. Dispute regarding deposition of additional treating physician
Counsel reports that this dispute has been resolved.

5. Parties’ proposed amendment to case-specific discovery deadline
TCounsel jointly requested a slight extension of the case-specific discovery deadline from January 9 to January 26, 2017, which would align with the deadline for liability discovery.

6. Additional Issues
Counsel for Defendants noted that their briefing regarding bellwether case selection is due on February 2, 2017, and they would like to set out a parallel briefing schedule for three cases (Richardson, Kirkwood, and Quinley) that they want removed from bellwether selection because they anticipate them being disposed of on statute of limitations grounds. Counsel for Plaintiffs were not aware of this issue prior to the status conference and wanted an opportunity to meet and confer. They are concerned that there may be fact issues for the jury, thus the cases should remain in the pool. Counsel for Defendants noted that they are happy to meet and confer but wanted to put the issue on the table. They recommend treating the cases the same way they were treated in the Xarelto case in front of Judge Fallon, where the parties created two tracks (trial and non-trial). The idea was to avoid having either party spend money on experts for cases that may not go to trial and to avoid wasting trial slots.
The Court asked that the parties meet and confer. If a dispute remains, the Court will hold a phone call with the parties to discuss the matter further.

Upcoming Status Conference:
Wednesday, January 17, 2018, at 4:30 p.m.

November 14, 2017

Status Conference held on November 14, 2017

1. Status of Litigation
Counsel reported that 289 cases remain pending in the MDL; 201 are Bayer-only and 88 are combination Bayer-Janssen. Two related cases remain in Philadelphia, including Bryant.
Defense counsel reported that there are about a dozen plaintiffs that have overdue fact sheets, two of which are “significantly late.” Defense counsel says that they have been working with Attorney Simms to get those or to dismiss those cases, but they may ask for an order to show cause should they be unsuccessful. Attorney Simms reported that only seven cases had been identified as tardy and agreed that two were over a moth late.

2. Coordination with Pennsylvania Court of Common Pleas and Judge Younge regarding Bryant matter
Judge Tunheim reported that he has not yet had a chance to reach out to Judge Younge but that he will do so as soon as possible. Defense counsel noted that this issue is their biggest concern. At this time, expert discovery in Bryant is scheduled to be completed in early March, which is when the first bellwether trial will be selected. Defense counsel is concerned that the Bryant case will preempt much of the work done in this MDL unless we can get that schedule pushed forward. As of now, the first bellwether trial is scheduled for November 2018.

3. Status of MDL Discovery
A. Bayer/Merck Defendants
Counsel reported that 14 depositions have been taken for U.S. Bayer, and four remain. Six depositions will be taken regarding German Bayer. Three are scheduled for December, and three are scheduled for January.

B. Bellwether Discovery
31 treater depositions have been taken, eight are scheduled for this month, and eight still need to be scheduled. Defense counsel has been working with Mr. Simms and is primarily concerned regarding prescribers. Defense counsel is also waiting on a list of physicians that Mr. Simms intends to use so that Defense counsel can depose them.
Defense counsel has reported that they have completed document discovery. They are still waiting for a list of sales representatives and managers and ask that the information be turned over ASAP because most are likely no longer working for Bayer and may be hard to track down with the holidays approaching. Plaintiffs anticipate deposing 12 sales representatives and managers.

4. Scheduling of November Status Conference
The next status conference will be December 20, 2017, at 3:00 P.M. At that conference, Judge Tunheim wants to discuss a schedule preview for 2018 to make sure that the case is on track and assist anyone following from a distance.

Upcoming Status Conference:
Wednesday, December 20, 2017, at 3:00 p.m.

October 10, 2017

Status Conference held on October 10, 2017

1. Status of Litigation
Counsel reported that there has been no change to the federal filing numbers. There are about 270-280 cases pending in the MDL with about 1/3 combination Bayer-Janssen cases.
Counsel reported that only two related cases remain in Philadelphia, the Bryant case and the Turner case. The number is down from 16 cases previously. The Turner case is expected to be dismissed; plaintiff’s attorneys recently withdrew and the plaintiff is proceeding pro se. Bayer is attempting to move forward with a deposition. The Bryant case is currently set for June 2018. The amended Pretrial Order would put the MDL in direct conflict with the Bryant case schedule wise, thus the parties request that Judge Tunheim speak with Judge Young about possibly pushing the Bryant case off to December 2018 so that the MDL can proceed first with bellwether trials starting in November 2018. The new PTO includes deadlines for expert discovery, and the presumption is that the parties would use the same general causation experts for the Philadelphia case(s).
Judge Tunheim agreed to make contact with Judge Young about the schedule. He also agreed to inform the parties when that was done so that counsel could reach out to Judge Young as well.

2. Discovery Update
Plaintiffs reported that discovery continues as planned. They have received over 14.5 million pages of documents. The majority is from Bayer, but Bayer Pharma AG (the German entity) has also submitted about 5 million.
Plaintiffs report that they have taken 9 Bayer/Merck depositions, have scheduled 4, and are waiting on dates for 2 further witnesses. They anticipate completing those depositions this year. Plaintiffs report that they have completed 17 treater depositions, have scheduled 16, and are attempting to schedule the remaining 9. They hoped to complete these depositions by the end of October, but it is looking like it will be November. The goal is to finish those within the next 6 weeks.
Plaintiffs have served written discovery seeking custodial files regarding sales representatives and district managers. Bayer and Merck collectively have identified 24 sales representatives and 9 district managers whose files they will search for and produce. They have already begun to produce some. Plaintiffs will depose two sales representatives or district managers for each bellwether case, subject to good cause exception or agreement by parties.

3. Parties proposed order to amend PTO 13
The new PTO basically just pushed all the dates back by three months. The parties also added limitations regarding sales representatives and treaters. They also collapsed the deadlines for the Avalox cases so that they match the Cipro cases, but Avalox will proceed first.

4. Scheduling of November Status Conference
Upcoming Status Conference:
Tuesday, November 14, 2017, at 4:00 p.m.

August 10, 2017

Status Conference held on August 10, 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, 2017

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.

2016

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.

Contacts

U.S. District Court Staff

Plaintiffs' Co-Lead Counsel

Plaintiffs' Liaison Counsel

Defendants' Lead Counsel

Defendants' Liaison Counsel

Calendar

February 19, 2020
Status Conference - 2:00 PM

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Orders

Last Updated: October 19, 2021

This document repository may not be a complete inventory of all decisions. These electronic versions are not official documents of record; the official records are available at the Clerk's Office. The following documents are in PDF format and can be viewed or printed using Adobe's Acrobat® Reader.

2023 Orders and Minutes

2022 Orders and Minutes

2021 Orders and Minutes

2020 Orders and Minutes

2019 Orders and Minutes

2018 Orders and Minutes

2017 Orders and Minutes

2016 Orders and Minutes

Reports

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Last Updated: June 27, 2018

2018 Reports

2017 Reports

2016 Reports

Transcripts

This repository may not be a complete inventory of all transcripts. These electronic versions are not official documents of record; the official records are available by contacting the Clerk's office (612-664-5000).

The following documents are in PDF format and can be viewed or printed using Adobe's Acrobat® Reader.

Last Updated: October 19, 2021

May 21, 2020
Status Conference

February 19, 2020
Status Conference

November 20, 2019
Status Conference

July 25, 2018
Status Conference

October 10, 2017
Status Conference

August 10, 2017
Status Conference

May 31, 2017
Status Conference

March 28, 2017
Status Conference

February 21, 2017
Status Conference

April 21, 2016
Status Conference

Forms

Forms:

Last Updated: December 10, 2015

The following forms are specific to the Levaquin MDL case in the U.S. District Court of Minnesota. The forms have been created in Adobe Acrobat and/or Microsoft Word. To use the forms, right-click the link and select the "Save Target As..."option if you are using Internet Explorer. If you are using Netscape, right-click and select the "Save or As..." option.

DATE: 06/16/2016
FORM: Fluoroquinolone Plaintiff Fact Sheet

United States District Court

District of Minnesota

Honorable Patrick J. Schiltz, Chief Judge | Kate M. Fogarty, Clerk of Court

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