Opposition Brief — Dier v. Merck & Co.
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No. 10-666
AN2 | 299
IN THE
Supreme Court of the GAnited States
GLENN L. DIER ET AL.,
Petitioners,
MERCK SHARP & DOHME CORP.,
Respondent.
On Petition For A Writ Of Certiorari To
The United States Court Of Appe.!;
For The Fifth Circuit
BRIEF IN OPPOSITION
PHILLIP A. WITTMANN
DOROTHY H. WIMBERLY
STONE PIGMAN
WALTHER WITTMANN
LLC
546 Carondelet St.
New Orleans, LA 70130
Telephone: (504) 581-3200
Facsimile: (504) 581-3361
pwittman@stonepigman.com
DOUGLAS R. MARVIN
WILLIAMS & CONNOLLY
LLP
725 Twelfth Street, N.W
Washington, D.C. 20005
Telephone: (202) 434-5000
Facsimile: (202) 434-5029
dmarvin@wcec.com
JOHN H. BEISNER
Counsel of Record
JESSICA D. MILLER
GEOFFREY M. WYATT
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
1440 New York Ave., N.W.
Washington, D.C. 20005
Telephone: (202) 371-7000
Facsimile: (202) 393-5760
John. Beisner@skadden.com
QUESTIONS PRESENTED
After years of personal-injury litigation concern-
ing the prescription drug Vioxx, attorneys
representing plaintiffs and the defendant, Merck
Sharp & Dohme Corp., agreed to establish a private
claims-resolution program for plaintiffs alleging that
Vioxx caused them to sustain a heart attack, an
ischemic stroke or sudden cardiac death. Participa-
tion in the program was volurtary, and the program
resulted in the resolution of tens of thousands of
clain.s. In order to streamline resolution of unsettled
claims, the district court entered pretrial orders re-
quiring non-settling plaintiffs to submit a case-
specific expert report linking their alleged injury to
Vioxx. The orders stated that plaintiffs who failed to
comply with their terms would face dismissal of their
claims. Petitioners refused to comply with the orders.
After extending the time to comply with the orders by
more than a year, and entertaining multiple motions
by the petitioners to set aside the settlement and to
modify or vacate the orders, the district court dis-
missed their claims. The court of appeals affirmed.
The questions presented are the following:
1. Did the court of appeals correctly find that pe-
titioners, who did not settle their claims and were
free to pursue them in court, lacked standing to chal-
lenge a private, opt-in settlement agreement?
2. Did the court of appeals properly hold that the
district court acted within its broad authority to
manage multidistrict litigation in entering a pair of
orders requiring non-settling Vioxx plaintiffs to sub-
mit an expert report linking their alleged injuries to
Vioxx?
1
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED..................... Mase earee
TABLE OF CONTENTS ....0.0..........-0.cccccccccscosesessenes. 11
TABLE OF AUTHORITIES ...........ccccseccccsavveccesee. IN
FUP EE RN is ocd vices esse aceee ae renee
STATEMENT OF THE CASE ......ciccceccosccsccsseccsnasses
REASONS FOR DENYING THE PETITION....... 13
I. The Decision Below Does Not Present A
Question Of “Exceptional National
Importance” And Does Not Conflict
With The Precedents Of This Or Any
Pere 0 cece 14
IT. The Court Of Appeals Correctly Appled
Established Rules Of Law. .....00..0. eee. 18
A. Petitioners Do Not Have Standing
To Challenge A Settlement To
Which They Were Not Parties. ......... 18
B. The District Court Acted Within
Its Discretion Jn Adopting
Discovery Orders For Non
petting Pintvtitls. ....5. oi. k 23
CONCLUSION
United States District Court, Eastern District
of Louisiana, No. 05-1657. Pretrial Order
No. 28, Prima Facie Evidence of Usage, Injury
Sr A oe ee ew, A-]
United States District Court, Eastern District
of Louisiana, No. 05-1657, Pretrial Order
No. 29, Rules and Procedures Relating to All
Cases Filed or Transferred On or After
PNOWOMNHOE D ZO07 «5. oon ccccvecsacneccce cccsesetlecticc. A-19
United States District Court. Eastern District
of Louisiana, No. 05-1657. Pretrial Order
(ge | RAR ey Raa led ai dee am OA on treed nen OOo an SON yas A-35
United States District Court, Eastern District
of Louisiana, No. 05-1657. Pretrial Order
No. 31, Registration of Claims....................0...... A-38
United States District Court, Eastern District
of Louisiana, Nos. 05-1089, et al.. Order &
FROBSOMNS ....occccncccccccocccccccccccccecseecces. Pert eee A-46
1V
TABLE OF AUTHORITIES
FEDERAL CASES
Acuna v. Brown & Root Inc..
200 F.3d 335 (5th Cir. 2000).................. ic. 20. 26
Agretti v. ANR Freight System,
ee ee ee TRE AE, BE oo iioclesvesn ince 22
Alumax Mill Products, Inc. v. Congress Fi-
nance Corp.,
912 F.2d 996 (8th Cir. 1990) 0.000.000... cee eee. ao
Amchem Products, Inc. v. Windsor,
> BR SS i kf fn 15, 19
Baker v. Chevron USA, Inc.,
No 1:05-CV-227, 2007 U.S. Dist. LEXIS
6601 (S.D. Ohio Jan. 30, 2007)..............0......0c000 25
Bass v. Phoenix Seadrill/78, Lid.,
74) F206 1354 Cath Car. 1965) .......cc.c we 23
In re Beef Indus. Antitrust Litig.,
GOT F260 167 CBG Cie, TST) ors cicncccicnccGicsccccsconsee A
Bender v. Williamsport Area Sch. District,
TET, BO ETD esis css ences diccsvcceencntavcccess. 3
Burns v. Universal Crop Prot. Alliance,
No. 4:07-CV-535, 2007 U.S. Dist. LEXIS
71716 (B.D. Ark. Sept. 25, 2007)......0000000 ce. 24
Claar v. Burlington N. R.R. Co.,
29 F.3d 499 (9th Cir. 1994) ........... aeegcavees dethc ae
In re Disbarment of Benjamin,
488 U.S. 1000 (1989) ............ ieuereuacaeas ee
Kichenholtz v. Brennan.
52. F.3d 478 (3d Cir. 1995)............ TE i Se
In re GMC Pick-Up Iruck Fuel Tank Products
Liability Litigation,
55 F.3d 768 (3d Cir. 1995)............ ee 15
In re Integra Realty Resources, Inc.,
262 F.3d 1089 (10th Cir. 2001) ..... PORE OI Ly, Ze
Mayfield v. Barr,
985 F.2d 1090 (D.C. Cir. 1993).......... rae.) Tae +.
McCray v. New York,
SGI US. S61 (19GB) .......0...cccccscccccccccccecesss: 14
McLeod, Alexander, Powel & Apffel, P.C. '
Quarles,
894 F.24 1482 (5th Cir. 1990)....... - oe
Medalie v. Bayer Corp.,
510 F.3d 828 (8th Cir. 2007) . . ,20; 20
Munoz v. Orr,
200 F.3d 291 (5th Cir. 2000) nee are «Zo
In re NASDAQ Market-Makers Antitrust
Litigation,
176 F.R.D. 99 (S.D.N.Y. 1997) . Sesksediddoes 19
v1
New Mexico ex rel. Energy & Minerals De-
partment,
S20 F276 441 CA. Cir, TOG Tyan coos cv casevscdbasesanecss 19
Olden v. LaFarge Corp.,
472 F. Supp. 2d 922 (E.D. Mich. 2007).............. 19
Ortiz v. Fibreboard, Corp.,
EE TF ee TRE ans nn ic sesdocevoucesicsixcuvasivevecss 1S
Plunkett v. Merck & Co.,
401 F. Supp. 2d 565 (E.D. La. 2005).................... 2
Quad/Graphics, Inc. v. Fass,
Te © ee Be CIER CIh, BGS) oivncccncvevsccsveccevessscess 19
Ramos v. Playtex Products, Inc.,
Nos. 08-CV-2703, 08-CV-2828,
08-CV 3352, 2008 WL 4066250 (N.D. III.
PRA I ss cn sadn isesancisavieniassces aueceneaeeertd 24-25
In re Sch. Asbestos Litigation,
AEF 2k LS CO CE, TI vnc cvccccccccessvecscassvece ee
Steering Committee v. Exxon Mobil Corp.,
Ek BO CETy Cie, FOG oirsvvcvcvccaccscccecacsacess 27
Transam. Refining Corp. v. Dravo Corp..,
ORE FO re CRT AE: TOFD ho vacnccascoecencscsscpsoises 19
In re Viatron Computer System Corp.
Litigation,
BLA 2 EL CURE Cae. WB onan escivcvencccessecczesssyerass 19
In re Vioxx Products Liability Litigation,
360 F. Supp. 2d 1352 (J.P.M.L. 2005).......... 3
In re Vioxx Products Liability Litigation,
239 F.R.D. 450 (E.D. La. 2006)..................... 3, 15
In re Vioxx Products Liability Litigation,
057 F. Supp. 2d 741 (E.D. La. 2008)....3, 9, 26, 27
In re Vioxx Products Liability Litigation,
574 F. Supp. 2d 606 (E.D. La. 2008)..... 3, 4
In re Vitamins Antitrust Class Actions,
215 F.00 26 (D.C. Cw. 200)........... 2(
Waller v. Finance Corp. of America,
828 F.2d 579 (9th Cir. 1987) ............. . 19, Zo
Zupnick v. Fogel,
989 F.2d 93 (2d Cir. 1993)................ .19, 22
STATE CASE
Lore v. Lone Pine Corp..,
No. L-33606-85, 1986 WL 637507 (N.J. Su
per. Ct. Law Div. Nov. 18, 1986).......... 6
RULES
S. Ct. R. 10(a)..... 1D
Fed. R. Civ. P. 12.........
Vill
OTHER AUTHORITY
John Bronsteen, Class Action Settlements: An
Opt-In Proposal,
2005 U. Ill. L. Rev. 903, 923-25 16-17
Alba Conte & Herbert B. Newberg, Newberg
on Class Actions (4th ed. 2002) 20)
Howard M. Erichson, Beyond the Class Action
Lawyer Loyalty and Client Autonomy in
Non-Class Collective Representation
2003 U. Chi. Legal F. 519..
David F. Herr, Ann. Manual for Complex Lit
gation (4th ed. 2010).. oer
Charles Alan Wright et al., Federal Practice &
Procedure (3d ed. 2010)..
JURISDICTION
Jurisdiction is lacking with respect to the first
question presented. Although petitioners cite 28
U.S.C. § 1254(1), they fail to present a “Case” or
“Controversy” as required for the invocation of fed-
eral jurisdiction under Article III of the U.S.
Constitution because they lack standing to challenge
the private, opt-in settlement agreement to which
they were not parties.
STATEMENT OF THE CASE
Petitioners ask the Court to set aside a private,
opt-in settlement agreement to which they are not
parties. According to petitioners, the private agree-
ment, in combination with a set of modest discovery
orders entered by the district court below, operated
as a de facto class-action settlement. But no one
other than petitioners has ever accepted that theory,
and there is no division of authority on the question.
Thus, even accepting petitioners’ contention that the
issue presented is one of “exceptional public impor-
tance,” there is no serious public disagreement about
its resolution, leaving no need for this Court’s inter-
vention.
Moreover, even if petitioners’ theory had merit,
the court of appeals’ ru'ing, affirming dismissal of pe-
titioners’ claims, would still have been proper. Every
court to consider the question has held that non-
settling parties — even parties who opt out of class
settlements — lack standing to challenge a private
agreement between other parties. The court of ap
peals properly applied this unanimous precedent to
dispose of petitioners’ challenge.
The court of appeals also properly rejected pet
tioners’ argument that the district court abused its
discretion in dismissing their claims for failure to
comply with simple discovery orders requiring peti
tioners and other non-settling parties to produce
expert reports linking their ingestion of Vioxx to
their alleged injuries Courts and commentator
alike have acknowledged that such discovery order:
are crucial tools for managing multidistrict mass tort
litigation, particularly n mature slages, and are
well within a district court's broad discretion to en
ter
The Underlying MDL Proceeding. this case
grew out of the settlement of certain claims in the
litigation over the prescription drug Vioxx, a non
steroidal anti-inflammatory drug approved by the
Food and Drug Administration in 1999 for the treat
ment of osteoarthritis pain. Litigation over Vioxx
has spanned almost a decade. Beginning as early a:
2001, plaintiffs in various jurisdictions filed cases as
serting that Vioxx poses an increased nisk of
cardiovascular injuries. Vioxx was withdrawn from
the market in September 2004, and MDL proceedings
were established in the U.S. District Court for the
Eastern District of Louisiana in 2005, ultimately
comprising thousands of individually filed claims
Judge Eldon Fallon has overseen these proceedings
since their inception. See generally Plunkett v. Merck
& Co., 401 F. Supp. 2d 565, 570-72 (E.D. La. 2005)
Petitioners attack on the discovery orders 1s, 1n
any event, a red herring: their calculated defiance of the
discovery orders was merely an instrument to secure an
appellate forum for their attack on a settlement that ha:
nothing to do with them
In re Vioxx Prods. Liab. Litig., 360 F. Supp. 2d 1352
(J.P.M.L. 2005).
To manage the sprawling proceeding, the district
court appointed attorneys to serve on the Plaintiffs’
Steering Committee (“PSC”) and Defendant's Steer
ing Committee. /n re Vioxx Prods. Liab. Litig., 574 F
Supp. 2d 606, 608 n.3 (E.D. La. 2008). The court held
monthly status conferences with the committees to
review the progress of the ltigation Id. at 608
However, the court did not require individual plain
tiffs to rely on the PSC to represent their interests at
these conferences; the conferences were open to any
one who wished to attend In re Vioxx Prods. Liab
Litig., 557 F. Supp. 2d 741, 744 (E.D. La. 2008).
The district court quickly directed the parties to
address whether it could certify a class of personal]
injury plaintiffs. In November 2006, after the parties
briefed the issue, the court entered an order denying
certification of a nationwide class. Jn re Vioxx Prods.
Liab. Litig., 239 F.R.D. 450, 459 (E.D. La. 2006). The
court found that the choice-of-law analysis would
“present{] significant hurdles to certification of a na
tionwide class... because the application of the laws
of fifty-one jurisdictions .. . creates problems for typi-
cality, adequacy, predominance, and superiority ‘
Id. The court also noted that the personal injury
claims raised numerous individualized questions of
fact that would prevent the putative class from satis
fying Rule 23(a) and (b)(3). /d. at 460-63.
After the district court denied class certification,
the parties continued with bellwether tnals — “test
cases’ intended to assist the parties in moving to
ward resolution of the litigation. /n re Vioxx, 574 F
Supp. 2d at 608-09. The majority of these trials re
}
ulted in defense verdict ld. During the same time
period, there were thirteen trials in state court
around the country, and the majority of those trial
resulted in defense verdicts too. /d. at 609. GSee also
Pet. 29 n.12.)
f
Master Settlement Agreement. On November 9
2007, following several years of litigation, discovery
of millions of documents and depositions of numerou
witnesses and experts, counsel for Merck and the
Negotiating Plaintiffs’ Counsel (“NPC”) announced a
private agreement to ettle many Vioxx personal in
jury cases pending in the MDL proceeding and othe)
jurisdictions around the country (See Master Set
tlement Agreement, /n re Vioxx Prods. Liab. Litig
MDL No. 1657 (E.D. La. Nov. 9, 2007) (“MSA”), ava
lable at http://www.brownygreer.com
ioxxsettleme nt.)
The MSA established a $4.85 billion fund to re
Olve cases pending on November 9, 2007, in which
the plaintiffs claimed that Vioxx caused a heart at
tack, ischemic stroke or sudden cardiac death. MSA,
Recitals. The parties requested that Judge Fallon
carry out certain administrative responsibilities un
der the Avreement in connection with the settlement
(id. § 6.1.1.)
Claimants could enroll in the MSA if they met
certain criteria that the MSA identified as “gates.
(See MSA § 2.2.1.) Claimants passed the “injury
sate if they asserted one of three injuries heart at
tack, ischemic stroke or sudden cardiac death “a
defined by the MSA. (See id. Ex. 2.2.1.1.) Claimant
passed the “proximity” gate if they produced evidence
that they had ingested Vioxx within 14 days of then
alleved injury. (See id. Ex. 2.2.1.3.)
Unhke a class settlement, the MSA bound only
those claimants who affirmatively consented to its
terms and opted into the resolution program it cre
ated. Plaintiffs’ counsel were to decide whether they
could ethically recommend settlement to all of then
chents. Ud. § 1.2.8.1.)2 Many did so, but the decision
whether to enroll was left exclusively with the ind)
vidual plaintiffs
Petitioners were not eligible to participate in the
MSA because the injuries they allege were not cov
ered by the agreement (and because some of them
filed their cases after November 9, 2007, the last fil
ing date on which claims” were) eligible for
resolution)
The MSA’s resolution program is essentially com
plete At this time, all claims submitted for
Counsel were also free to recommend the settle
ment to some or none of their chents, but they could not
automatically enroll their chents in the resolution pro
gram under those circumstances. The MSA _ permitted
Merck to waive objection to partial enrollment in these
situations or to raise an objection to be resolved by Judge
Fallon. (MSA §§ 1.2.8, 1.2.9.) Plaintiffs’ counsel who rec
ommended settlement to all chents were permitted to
enroll only those chents who wished to participate in the
program, provided that counsel attempted to withdraw
from representation of clients who did not. wish to partici
pate. (Ud. § 1.2.8.2.) These provisions of the MSA were
carefully applied to ensure that each htigant had repre
sentation and that each attorney could comply with his or
her ethical obhgations
Petitioners do not identify their alleged injuries in
their petition, but the alleged injuries include heart palp)
tations, loss of consciousness and chest pain
resolution have beep re olved and nearly all pay
ments have been made
The District Court’s Discovery Orders. De
spite the success of the MSA, it did not resolve (and
was not intended to resolve) all outstanding Vioxx
personal injury claims. Recognizing as much, on the
day the MSA was announced, the district court en
tered several new pretrial orders (“PTOs”) to prepare
the remaining cases for the next phase of htigation
T'wo of these orders — PTOs 28 and 29 — impose
limited document-preservation and discovery obliga
tions on plaintiffs with pending claims. The orders
imposed substantially identical requirements, but
PTO 28 covered claims that were pending on the date
of the settlement, while PTO 29 covered claims that
were filed thereafter. In relevant part, PTOs 28 and
29 both required plaintiffs to submit a Rule 26(a)(2)
case-specifie expert report from a medical expert at-
testing that the plaintiff sustained an mjury and that
Vioxx caused the injury. (PTO 28 § TI, A-9-A-10; PTO
29 § Il, A-26.) Such orders are common in mass-tort
litigation and are sometimes called “Lone Pine” or
ders, named for the first case to employ such case
management techniques.
The document productions required by PTOs 28
and 29 were to be made within specific time periods
For cases pending on the date of the settlement,
4 See Lore v. Lone Pine Corp., No. L-33606-85, 1986
WL 637507 (N.J. Super. Ct. Law Div. Nov. 18, 1986); see
also David F. Herr, Ann. Manual for Complex Litigation §
11.8 (4th ed. 2010) (explaining that Lone Pine orders
“have been widely used in mass torts to isolate spurnous
claims’) (collecting illustrative cases)
plaintiffs whose last names began with A through I.
(“A-L, plaintiffs’) were to produce all required docu
ments by May 1, 2008; plaintiffs whose last’ names
began with M through Z (“M-Z plaintiffs”) were to
produce the documents by July 1, 2008. (PTO 28
§ 11.C, A-10-A-11.) Plaintiffs filing after the settle
ment date were given 45 days to produce required
documents (PTO 29 SILA, A-23.) In the event
plaintiffs failed to comply with the requirements of
either PTO 28 or 29, they were entitled to 30 extra
days to cure any deficiency, after which time Merck
was permitted to move for an order to show cause
why the noncomplying cases should not be dismissed
with prejudice. (PTO 28 §§ I.D, II.D, A-5, A-12; PTO
29 §§ I.E, H.C, A-22, A-27.)
To make clear that PTO 28 apphed only to non
settling cases that were pending prior to November 9
2007, the order expressly provided that it did not ap
ply if “(a) the injury alleged is) a’ Myocardial
Infarction (MIT), Sudden Cardiac Death (SCD’), or
Stroke as those terms are defined, infra., in Section
Ill], and (b) the Plaintiff or Claimant has submitted
the claim to the Resclution Program.” (PTO 28 § ILA,
A-6.) Section JII of PTO 28 defined those injuries
necessarily tracking the definitions employed in the
MSA itself to ensure that PTO 28 reached non
settling plaintiffs only, as no further discovery ot
preservation was required for plaintiffs who had de
cided to resolve their claims by settlement. (PTO 28
§ III, A-13-A-18.) No similar definition section was
included in PTO 29 - and none was needed — because
no claim filed after November 9, 2007, was eligible
for resolution under the MSA (MSA. Recitals. q H )
The district court also entered two other orders to
facihtate management of the ltigation while the
MSA registration and resolution process was pending.
The first, PTO 30, imposed a stay of discovery to al
low plaintiffs to consider whether to enroll in the
MSA's resolution program, with an exception for the
discovery requirements set forth in PTOs 28 and 29.
(Pet. App. A, at 4a; PTO 30, A-35-A-37.) The second,
PTO 31, required plaintiffs’ counsel to register all
claims 1n which they had an interest with the district
court and indicate whether they planned to recom
mend enrollment in the resolution program.”
Challenges to the MSA and PTOs 28-31. Be
cause petitioners alleged injumes that were not
covered under the MSA’s terms, they could not settle
their claims. Rather, they set out to challenge the
MSA and the requirements set forth in the district
court’s new PTOs. In December 2007, less than a
month after the MSA was announced, a group of
plaintiffs represented by petitioners’ counsel (“Agard
plaintiffs’)® appealed to the Fifth Circuit ostensibly
from the MSA and PTO 28. Because neither the
MSA nor PTO 28 was a final judgment, and because
no other basis existed for appeal, Merck moved to dis
‘>
' Petitioners mischaracterize PTO 31 as “requiring
all plaintiffs’ counsel of record ... to recommend to each
chient that they enroll in the MSA.” (Pet. 14.) PTO 31 re
quired no such thing. It) merely required counsel to
indicate whether they intended to make such a recom
mendation, or whether they instead recommended apainst
settlement. (PTO 31 Ix. A, A-43-A-45.)
‘ Among the Agard plaintiffs was Robert D. Gates,
who 1s a petitioner in the instant matter.
Q
miss the appeal. The Fifth Circuit granted Merck's
motion without an opinion. (See Pet. App. C, at 19a.)
Shortly after the Fifth Circuit dismissed the
Avard plaintiffs’ appeal, anether group of plaintiffs
represented by the Oldfather Law Firm (“Oldfather
plaintiffs”) moved the district. court. to modify or sus
pend PTO 28. The district court rejected their
arguments that the PTO was premature and unfairly
burdensome. See In re Vioxx, 557 F. Supp. 2d at 743
(explaining that Lone Pine orders like PTO 28 are a
recognized and appropriate means “to identify and
cull potentially merit less claims and streamline lita
gation’) (internal quotation marks and = citation
omitted). According to the court, “it 1s not too much
to ask a Plaintiff to provide some kind of evidence to
support their claim that Vioxx caused them personal
injury.” /d. at 744. After all, “if Plaintiffs’ counsel
beheve that such claims have merit, they must have
some basis for that behef.” /d. Nonetheless, the
court extended the PTO 28 deadlines “to ensure that
all Plaintiffs ha[d] a fair opportunity to comply with
(the limited discovery] provision of PTO 28.” Id. at
745. The court extended the deadline for A-L plain
tiffs to July 1, 2008 and the deadline for M-Z
plaintiffs to August 1, 2008. Jd.’
On the day before the first of these extended
deadlines, the Agard plaintiffs filed a motion making
substantially the same arguments as those made by
Thus, while petitioners contend that the Oldfather
challenge was “rejected by the district court” (Pet. 16), the
reality is that the primary relief those plaintiffs sought
an extension of time limits to comply with PTO 28 - was
in fact granted
the Oldfather plaintiffs. In addition, the Agard
plaintiffs argued that the district court's role as set
tlement. administrator and coordinator of the MDL
proceeding created an incurable conflict. of interest,
requiring Judge Fallon to resign as settlement ad-
ministrator. Further, they sought to eliminate the
case-specific-expert-report requirement and argued
that the MSA should be vacated or declared void un
der Rule 23. Finally, they sought an extension of the
PTO 28 deadline to September 30, 2008 for A-L
plaintiffs and October 31, 2008 fer M-Z plaintiffs.
(See Pet. App. C, at 21la-22a.)
On December 10, 2008, the district court denied
the Agard plaintiffs’ motion in its entirety. The court
upheld the requirements of PTO 28, relying on its
reasoning in the Oldfather ruling that PTO 28 ts a
standard Lone Pine order designed to streamline
mass litigation. (A-55-A-58.) The court described the
Agard plaintiffs’ complaint regarding the ostensible
burdensomeness of PTO 28 as “simply not credible.”
(A-57.) In addition, the court ruled that Judge Fallon
need not resign as administrator of the settlement.
According to the district court, “|t}]he facts of the in
stant case do not warrant recusal” because “the
[clourt serves in an administrative capacity” 1n con-
nection with the settlement “that has no substantive
effect on its management of the MDL proceedings.”
(A-53.) In his ruling, Judge Fallon emphasized that
“[t]he Court played no role in drafting the private set-
tlement agreement reached by the parties; the Court
has taken no position as to what types of claims
should or should not have been included in the set-
tlement; and, finally, the Court has consistently
stated th.t it neither encourages nor discourages
participation in the settlement.” (A-54.) The court
also declined the Agard plaintiffs’ invitation to void
the MSA, explaining that “[u]nlke a class settlement,
the MSA is a private, opt-in settlement that was not
secured through a settlement class vehicle and |it]
therefore poses no risk of binding any unwilling
plaintiff to its terms.” (A-55.)
Dismissal of Petitioners’ Ciaims. On Novem
ber 26, 2008, Merck filed a motion for an order to
show cause why petitioners’ claims should not be dis-
missed in light of their failure to comply with PTOs
28 and 29.8 The district court granted the motion
and ordered petitioners to respond by January 9,
2009. (Pet. App. C, at 22a.) Petitioners filed two re
sponses purporting to show why their cases should
not be dismissed and two cross motions, again re
questing an extension of discovery deadlines and
recusal of Judge Fallon. (See td. at 22a-23a.) The
filings substantially repeated the arguments made by
the Oldfather and Agard plaintiffs in their respective
challenges to PTO 28.
The district court rejected petitioners’ arguments,
denied their cross motions, and dismissed their cases.
In so doing, the district court “adoptied] its earlier
reasoning and [found] that the plaintiffs’ redundant
requests for recusal, additional extensions of time, or
modification of PTOs 28 and 29 are without merit.”
(Pet. App. C, at 23a.) In its ruling, the court noted
that the deadlines for petitioners’ compliance with
the PTOs had long passed; yet, “rather than simply
8 Merck moved under both PTOs 28 and 29 because
some of the petitioners had filed their claims after No-
vember 9, 2007 — the date of the MSA — and were thus
covered by PTO 29.
comply with the Court’s orders, their attorney con-
tinues to argue that the deadlines are either too
harsh or are inapplicable.” (Ud. at 23a-24a.) The dis
trict court also found that, “la]t this stage of the
proceedings, dismissal with prerudice is the only ap-
propriate remedy for the plaintiffs’ repeated failure
to produce reports in accordance with PTOs 28 and
29.” (Ud. at 24a.) It further noted that petitioners’
counsel had been reprimanded by other courts for
engaging in similarly obstinate behavior.” (d. at 25a
& n.3.)
Appellate Proceedings. After the district court
dismissed their cases, petitioners sought review in
the court of appeals. The Fifth Circuit affirmed the
district court’s ruling in a per curiam opinion. First,
the court of appeals held that petitioners lacked
standing to challenge the MSA. Even “in the context
of class settlements,” 1t explained, “non-settling par
ties generally have no standing to challenge the
settlement.” (Pet. App. A, at 7a.) The only “excep
tion to the general rule” applics where an “agreement
strips non-settling parties of mghts to contribution or
indemnity” or “in some other manner” that “results
in plain legal prejudice.” (Ud. (nternal quotation
marks and citation omitted).) “But mere allegations
of ... tactical disadvantage as a result of a settle
Q
Petitioners have been represented by two attorneys
from the Law Office of Ronald R. Benjamin through the
course of these proceedings — Ronald Benjamin and Marya
Young. The district court’s comments were in reference to
Mr. Benjamin. Only Ms. Young represents petitioners be-
fore this Court, presumably because Mr. Benjamin has
been disbarred from practicing before it. See Jn re Dis
barment of Benjamin, 488 U.S. 1000 (1989).
ment simply do not rise to the level of plain legal
prejudice.” (/d. at 8a (alternations, interna! quota
tion marks and citation omitted).) And because the
MSA was structured as an “opt-in’ private settle-
ment” to which petitioners were not parties, they
could not show they suffered the legal prejudice nec-
essary to establish standing. Cd.)
Second, the court of appeals held that the district
court had not abused its discretion by entering a
Lone Pine pretrial order or by dismissing petitioners’
cases for failure to comply with that order. The court
of appeals explained that the district court had fol-
lowed established Fifth Circuit precedent, which
acknowledged that Lone Pine “orders are issued un-
der the wide discretion afforded district judges over
the management of discovery under Fed. R. Civ. P
16.” Ud. at 13a (quoting Acuna v. Brown & Root In
200 F.3d 335, 340 (5th Cir. 2000)).)!°
Petitioners now seek this Court’s. discretionary
review,
REASONS FOR DENYING THE PETITION
1. The Court should deny the petition because
this case presents no departure from the Court’s
precedents and no question over which lower courts
are divided.
2. The Court should also deny the petition be
cause the decisions below were correct. First,
petitioners lacked standing to challenge the MSA, a
10 ~The court of appeals also affirmed the district
court's order denying petitioners’ recusal argument, which
is not pressed before this Court. (See Pet. App. A, at 8a
lla.)
private, opt-in agreement to which they were not par
ties. Second, the district court acted well within its
broad discretion to manage multidistrict proceedings
when it entered, and later enforced, two pretrial or
ders with which petitioners refused to comply.
I. The Decision Below Does Not Present A
Question Of “Exceptional National Impor
tance” And Does Not Conflict With The
Precedents Of This Or Any Other Court.
The petition should first be denied because pet
tioners have failed to present any remotely
compelling reason for the Court to exercise its discre-
tionary review.
First, petitioners do not point to any conflict be-
tween the decision of the court below and those of
any other lower court. See S. Ct. R. 10(a). ‘To the
contrary, petitioners themseives concede that the
Fifth Circuit “is the first federal appellate court to
review ...an agreement” such as the MSA.!! (Pet
20.) This alone warrants denial of the petition. See
McCray v. New York, 461 U.S. 961, 963 (1983) (Ste
vens, J., respecting denial of certiorari) (opining that
petition for writ of certiorari should be denied where
the issue requires further study in the lower courts
before it is addressed by this Court).
11 Petitioners state that the decision below is the first
“to review such an agreement with approval” (Pet. 20
(emphasis added)) — as if to suggest that some other
courts have reviewed and disapproved of private, opt-in
settlement agreements lke the one 2t issue in this case.
But petitioners do not cite any such cases, and Merck is
not aware of any.
LD
Second, petitioners advance no argument that the
decisions belew “so far departed from the accepted
and usual course of judicial proceedings... as to call
for an exercise of this Court’s supervisory power.” 5S.
Ct. Rule 10(a). In fact, petitioners again suggest the
contrary, noting that federal courts have pursued
similar courses to resolving mass-tort ltigation for
“the past decade.” (Pet. 20.)
Third, the decisions below do not “conflict{] with
relevant decisions of this Court.” S. Ct. Rule 10(c).
Petitioners argue that they do, contending that the
decisions below are “[cJontrary to the letter and
spirit” of cases like Amchem Products, Inc. v. Windsor,
521 U.S. 591 (1997), and Ortiz v. Fibreboard, Corp..,
527 U.S. 815 (1999). They are wrong.
Amchem and Ortiz involved class settlements
The Court held those settlements to be infirm be
cause they purported to bind the interests of certain
absent class members who had no way to opt out of
the agreements. Settlements in those circumstances
raise due process concerns because they are binding
by default. See, e.g., In re GMC Pick-Up Truck Fuel
Tank Prods. Liab. Litig., 55 F.3d 768, 784 (3d Cir.
1995) (explaining that the “overarching concern”
relative to class settlements is “that absentees’ inter
ests are being resolved and quite possibly bound by
the operation of res judicata even though most of the
plaintiffs are not the real parties to the suit”).
There is no such danger with the MSA. The MSA
has never been viewed as a “class settlement”; after
all, the district court expressly considered and denied
certification earlier in the litigation. See In re Vioxx,
239 F.R.D. at 459: see also Amchem, 521 U.S. at 619-
20 (explaining that class settlements are subject to
16
the same requirements as non-settlement class ac
tions, witn the possible exception of the
manageability requirement of Rule 23(b)(3)).?:
It is just as clear that the MSA was not a “de
facto’ class-action settlement, as petitioners suggest.
(f.g., Pet. 23.) After all, this Court’s concerns in Am
chem and Ortiz were animated by the fact that class
settlements bind all class members except for those
who affirmatively opt out — raising the nsk of unwit
ting involvement. But that risk is not presented here
because the MSA was only binding as to individuals
who affirmatively opted in to the agreement, elimi-
nating any risk of unintentional participation.!?® See
John Bronsteen, Class Action Settlements: An Opt-In
Nonetheless, Petitioners repeatedly and errone
ously refer to themselves as “absent class members,” see,
e.g., Pet. 22 (“The Fifth Circuit erred in the first instance
by classifying petitioners as non-settling parties when in
fact they were absent class members.”), and characterize
the MSA as a class settlement, see id. at 19 (“On its face,
the Vioxx MSA established a nationwide administrative
claims regime similar to the schemes that were before this
Court in Amchem, and later in Ortiz. . . .”).
Petitioners suggest otherwise, noting that one
hird of the claimants who entered the program “received
nothing” and asserting that these claimants were thereby
“excluded from any compensation.” (d. 28-29.) Not so.
While it 1s true that some claimants entered the resolu
tion program and were deemed ineligible for settlement,
each of those individuals had the option of returning his
or her claim to the court system for litigation upon learn
ing of ineligibility for settlement, meaning that ultimate
compensation remained a possibility were those claimants
to prevail at trial or reach some other form of resolution
with Merck. (See MSA 8§§ 2.7.3-2.7.3.1.)
Proposal, 2005 U. Ill. L. Rev. 903, 923-25 (differenti
ating consensual settlements, which are not typically
subject to challenge on fairness grounds, and class
settlements, which are not treated as contracts and
“must be approved by a court’); Howard M. Erichson,
Beyond the Class Action: Lawyer Loyalty and Client
Autonomy in Non-Class Collective Representation,
2003 U. Chi. Legal F. 519, 555 (“[A]n opt-in process
protects client autonomy more fully than the opt-out
process of Rule 23... .”), id. at 571 (“The clhent’s
right to reject a settlement maintains an important
incentive on lawyers to negotiate adequate settle-
ments.”). Because plaintiffs who were ineligible for
settlement or who decided not to opt in remained free
to litigate their individual claims against Merck, no
one was at risk of being bound against his or her
knowledge or consent. Accordingly, the proceedings
below were in keeping with both the “letter and
spirit’ of this Court’s prior holdings
Petitioners suggest that the opt-in character of
the settlement was illusory, citing scattered evidence
of a supposed conspiracy theory: the failure of the
NPC to represent all Vioxx plaintiffs, as evidenced by
the MSA’s exclusion of plaintiffs with injuries other
than heart attacks, strokes or sudden cardiac death
(Pet. 21-22); the purported “lack of adversarial pres
entation” to the district court before it adopted PTOs
28-31 (id. 28, 30); and petitioners’ own “inference
[that] the power of the purse had an influence in let-
ting a wealthy defendant get out cheap” (id. 25). Not
one of these “facts” — either by itself or in collection
with the others — operated to negate the voluntary
nature of the MSA. Eligible litigants retained the
choice whether to settie, and not everyone did. Those
who chose not to settle or who were ineligible for set
tlement could pursue their claims in court by simply
producing a single expert report that they would
have inevitably been required to produce in order to
take their cases to trial — and many did, belyiny peti
tioners unsubstantiated claim that the MSA
accomplished the “extinguishment” of all Vioxx:
related claims. (Pet. 21.) Although petitioners’
claims were extinguished, they affirmatively sought
out that result by refusing to comply with the district
court’s case-management orders
For all of these reasons, petitioners have failed to
demonstrate any question meriting this Court’s re
view, and the petition should therefore be denied
Il. The Court Of Appeals Correctly Applied Es-
tablished Rules Of Law.
This Court’s review is also unnecessary because
the decision of the court of appeals was correct
First, the court of appeals properly applhed the
settled rule that an individual who is not a party to a
private settlement has no standing to challenge it
Second, the court of appeals correctly held that the
distmet court acted within its broad discretion to
manage multidistrict proceedings in entering Lone
Pine discovery orders requiring parties to produc
evidence that their claims have merit
A. Petitioners Do Not Have Standing To
Challenge A Settlement To Which They
Were Not Parties.
he court of appeals correctly found that petition
ers lacked standing to challenge the MSA
“Generally, a non-settling defendant lacks stand
Ing to object LO approval] of a settlement because the
lY
non-settling defendant is not affected by that settle-
ment.” dn re NASDAQ Market-Makers Antitrust
Litig., 176 F.R.D. 99, 103 (S.D.N.Y. 1997) (citing
Zupnick v. Fogel, 989 F.2d 93, 98 (2d Cir. 1993) (col
lecting authority)). This rule has a simple rationale:
because non-settling parties cannot be bound by the
agreement, their legal rights remain unaffected by it.
See, e.g., New Mexico ex rel. Energy & Minerals Dept,
820 F.2d 441, 445 (D.C. Cir. 1987) (Only the parties
who signed the settlement agreement are bound by
the contract formed in ‘it.”); see also Waller v. Fin.
Corp. of Am., 828 F.2d 579, 582-83 (9th Cir. 1987);
Quad /Graphics, Inc. v. Fass, 724 F.2d 1230, 1232-35
(7th Cir. 1983); In re Viatron Computer Sys. Corp.
Litig., 614 F.2d 11, 14 (ist Cir. 1980), cert. denied,
449 U.S. 826 (1980).!4
The same rule applies in the context of class set
tlements. See, e.g., Transam. Refining Corp. v. Dravo
Corp., 952 F.2d 898, 900 (5th Cir. 1992). Thus, class
members who opt out of a class settlement lack
standing to challenge the settlement. “[O]pting out
of a settlement and choosing to object logically are
mutually exclusive options: if one actually opts out,
she has no standing to object to the settlement as she
will not be bound by it.” Olden v. LaFarge Corp., 472
14 ~—-In addition, “|t]his rule advances the policy of en
couraging the voluntary settlement of lawsuits.” Jn re
Integra Realty Res., Inc., 262 F.3d 1089, 1102 (0th Cir
2001) (quoting Waller, 828 F.2d at 583). Voluntary set
tlements play an essential role in the resolution of mass
product liability claims, which are “ordinarily not. appro
priate” for class treatment under Rule 23. Amchem,
521 U.S. at 625 (quoting Fed. R. Civ. 23, Advisory Com
mittee Notes, 1966 Amendment)
Ik Supp. 2d 922, 930-31 (E.D -Mich. 2007) (citing Be
cherer v. Merrill Lynch, Pierce, Fenner and Smith,
Inc., 1983 F.3d 415, 426 (6th Cir. 1999): 4 Alba Conte
& Herbert B. Newberg, Newberg on Class Actions
§ 11:55, at 168 (4th ed. 2002)); see also In re Vitamins
Antitrust Class Actions, 215 F.3d 26, 31 (D.C. Cir.
2000) (nonsettling plaintiffs lacked standing to chal
lenge class settlement because “the nonsettling
plaintiffs have fully preserved their ‘right to litigate
their claims independently”) (citation omitted); May-
field v. Barr, 985 F.2d 1090, 1092 (D.C. Cir. 1993)
(“[Njonsetthng parties in multi-party cases lack
standing to object to settlement agreements on ap
peal.”)
In re Vitamins Antitrust Class Actions, 215 F.3d
26, is instructive. There, the class had negotiated a
settlement with certain defendants to resolve claims
that the appellees had allegedly fixed prices on bulk
vitamin sales in violation of antitrust laws. /d. at. 28.
The appellants — who opted out of a class settlement
moved to intervene and challenge the settlement
Id. The district court denied the motion to intervene,
holding that the appellants lacked standing. /d. The
D.C. Circuit agreed “(C]lass members who have
opted out of a 23(b)(3) class action have no standing
to object to a subsequent class settlement” because
“by opting out they ‘escape the binding effect of the
class settlement.” Jd. at 28-29 (quoting Mayfield,
985 F.2d at 1093 (class members who opt. out cannot
challenge class settlements because “those who fully
preserve their legal rights cannot challenge an order
approving an agreement resolving the legal rights of
ot hers’))
The same is true here. Class settlement or not,
the MSA could not be challenged by petitioners be
cause they did not participate in it and thus
“escape|d] the binding effect of” the program it cre
ated. And because petitioners do not have standing
this Court lacks jurisdiction to review their challenge
to the MSA. See, e.g., Bender v. Williamsport Area
Sch. Dist., 475 U.S. 534, 541 (1986)
Petitioners’ only apparent theory of standing 1:
that they were injured because the MSA “limitfed]
compensation to heart attacks, ischemic strokes and
sudden cardiac death” (Pet. 33) —1.e., that petitioner
were prejudiced because the MSA failed to cover
their alleged injuries.'® But that is not a cognizable
basis for standing
To be sure, courts have developed a narrow exce}
tion to the general rule barring challenges t
settlements by non-settling parties where necessary
to shield non-settling parties from “prejudice” created
by a settlement. Z/n re Integra Realty, 262 F.3d at
1102; Zupnick, 989 F.2d at 98; Mayfield, 985 F.2d at
1092-93; Agretti v. ANR Freight Sys., 982 F.2d 242,
246-47 (7th Cir. 1992); In re Sch. Asbestos Litig., 921
F.2d 1330, 1332 (3d Cir. 1990). But “[p]rejudice’ i
this context means ‘plain legal prejudice, as whet
‘the settlement strips the party of a legal claim or
cause of action,” Jn re Integra Realty, 262 F.3d at
1102 (quoting Mayfield, 985 F.2d at 1093, and citing
kichenholtz v. Brennan, 52 ¥.3d 478, 482-83 (3d Cir
1995), Zupnick, 989 F.2d at 98, Alumax Mill Prods
Inc. v. Congress Fin. Corp., 912 F.2d 996, 1001-0:
(Sth Cir. 1990), Waller, 828 F.2d at 583, and In re
See note 3, supra
Beef Indus. Antitrust Litig., 607 F.2d 167, 172 (5th
Cir. 1979)), or where the settlement interferes “with
a party’s contract rights or a party’s ability to seek
contnbution or indemnification,” Agrelli, 982 F.2d at
247 (citing Quad/Graphics, 724 F.2d at 1232).
By contrast, plain legal prejudice is not demon
strated by “[mJere allegations of tnjury in fact or
tactical disadvantage as a result of a settlement.”
Agretti, 982 F.2d at 247; accord, e.g., Eichenholtz, 52
F.3d at 482-83; Zupnick, 989 F.2d at 98; Alumax Mill
Prods., 912 F.2d at 1001-02; Waller, 828 F.2d at 583;
In re Beef, 607 F.2d at. 172. Nor is it demonstrated by
allegations that a defendant has settled with fewer
than all plaintiffs, or that such a settlement will re
move the “economic incentive to settle with” other
parties. Bass v. Phoenix Seadrill/78&, Ltd., 749 F.2d
1154, 1165 (5th Cir. 1985). Otherwise, there could be
no partial settlements, since “any settlement with
less than all” parties produce some effect on non
settlhng parties. /d. at 1165
Here, petitioners do not and cannot point to
any provision in the MSA that affected the rights of
any non-settling party to continue pursuit of his or
her claim. To the contrary, petitioners have been thi
masters of their own destinies at all points in time;
they filed their own complaints, were free to be rep
resented by their counsel at = monthly = status
conferences throughout the course of the Vioxx mul
tidistrict proceedings, and were free to continue to
litigate their claims despite exclusion from the MSA
terms
Instead, petitioners rely on an assortment of ar
guments that are nothing more than complaints of
strategic advantage and exclusion from settlement
that. Merck’s defense strategy made it difficult to try
a case (Pet. 27); that the NPC should have sought a
settlement that covered petitioners (id. 21, 25-26
n.10); and that the district court should somehow
have stopped a private settlement (id. 27-28).'© But
these are precisely the kinds of arguments that
courts have uniformly held cannot confer standing on
non-settling parties because petitioners do not con-
tend that the settlement agreement extinguished
their causes of action or other legal rights.
Accordingly, the court of appeals correctly held
that petitioners sustained no plain legal prejudice
from the MSA and thus lack standing to challenge it
B. The District Court Acted Within Its
Discretion In Adopting Discovery
Orders For Non-Settling Plaintiffs.
Just as Petitioners have failed to raise any viable
grounds that provide them standing to challenge the
MSA, they have also failed to provide any reason why
the district court abused its discretion in entering
PTOs 28 and 29
* It is clear that the thrust of petitioners’ complaint
not that they were unable to pursue their claims in
court, but that they were somehow entitled to have their
claims compensated under the MSA regardless of eligibil
ity or merit. (See Pet. 22 (denying that petitioners ever
want “their day in court” and stating that a “representa
tive sult” presumably one conceived, financed and
prosecuted by others, since petitioners suggest that the
production of one expert report is too burdensome for
them (id. 15-16) — “may be an appropriate vehicle to re
solve their claims’).) Not surprisingly, petitioners offer no
support for this absurd proposition
24
As the court of appeals recognized, district courts
have wide discretion to manage discovery in the pro-
ceedings over which they preside. See, e.g., Burns v.
Universal Crop Prot. Alliance, No. 4:07-CV-535, 200%
U.S. Dist. LEXIS 71716 (E.D. Ark. Sept. 25, 2007);
Ramos v. Playtex Prods., Inc., Nos. 08-CV-2703, O8-
CV-2828, 08-CV 3352, 2008 WL 4066250, at *6 (N.D.
Ill. Aug. 27, 2008). Moreover, such “broad discretion
is. particularly important in complex litigation.”
Munoz v. Orr, 200 F.3d 291, 305 (5th Cir. 2000): see
also Acuna, 200 F.3d at 340; 6A Charles Alan Wright
et al., Federal Practice & Procedure § 1525, at 112
(3d ed. 2010) (‘Rule 16(c)(2)(L) explicitly authorizes
the adoption of special procedures to expedite the ad
judication of potentially difficult or protracted
cases....’). Indeed, management of discovery 1s one
of the primary purposes underlying 28 U.S.C. § 1407
(See Pet. 26 (recognizing that MDL proceedings were
designed to effectuate “consolidated discovery” and
that “the district court necessarily had to enjoy broad
ranging discretionary authority to manage litiga-
tion’).)
A district court’s discretion to manage complex,
multidistrict proceedings includes the power to issue
Lone Pine orders, as recognized by both the court be
low and other courts of appeals. See A una, 200 Bo8d
at 340 (‘It was within the court’s discretion to take
steps to manage the complex and potentially very
burdensome discovery that the cases would require.”);
cf., e.g., Medalie v. Bayer Corp., 510 F.3d 828, 830
(Sth Cir. 2007) (acknowledging district court’s use of
such orders and upholding dismissal based on lack of
complhiance with such orders); Claar v. Burlington N.
RR. Co., 29 F.3d 499, 500-01 (9th Cir. 1994) (uphold-
ing dismissal based on infirmity of expert affidavits
filed in connection with such orders). Lone Pine or-
ders are widely recognized as an effective way to “cull
potentially meritless claims and streamline litigation
in complex cases,” Baker v. Chevron USA, Inc., No
1:05-CV-227, 2007 U.S. Dist. LEXIS 6601, at *2 (S.D
Ohio Jan. 30, 2007), by “requirling] plaintiffs to es
}
tablish certain elements of their claims through
expert affidavits,” Acuna, 200 F.3d at 338
Relatedly, dismissal is a firmly established san¢
tion for noncomphance with the trial court’s orders
See, e.g., Medalie, 510 F.3d at 830 (affirming dis
missal of personal injury claim because plaintiff had
“failed to comply with the discovery order to submit
an expert’s report attesting personal injuries from
use of Baycol’); Acuna, 200 F.3d at 340; Claar, 29
F.3d at 500-501 (affirming grant of summary judg
ment because physicians’ affidavits failed to meet th:
requirements of case management order); McLeod
Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d
1482, 1486 (5th Cir. 1990)
The district court acted consistently with tl
precedent in adopting PTOs 28 and 29, which were
carefully crafted to “strike [a] balance between effi
clency and equity,” Jn re Vioxx, 557 F. Supp. 2d at
744, while preparing the parties for the next phase of
htigation. These PTOs merely required all plaintiffs
including petitioners, to produce what experience ha:
shown to be indispensable for tral: expert evidencs
of specific causation (.e., that Vioxx actually caused
the plaintiff's injury)
Ze
Petitioners question the merit of PTOs 28 and ¢
contending that they were unnecessary and burden
some But neither argument has merit Kiven
petitioners acknowledge the critical role played by
specific-causation evidence in the underlying litiga
tion, arguing that most of Merck’s trial wins resulted
from the “individual plaintiffs inability to prove spe-
cific causation.” (Pet. 29 n.12.) A preliminary
determination of whether any such evidence exists
for a particular plaintiff would thus figure heavily in
both sides’ decision either to try a case or attempt to
resolve it in some other fashion.
Petitioners’ claim of burdensomeness likewise
fails. The PTOs simply required petitioners to pro-
duce evidence that they should have had before
bringing sult; as the district court put it, “it 1s not too
much to ask a Plaintiff to provide some kind of ev
dence to support their claim that Vioxx caused them
personal injury.” /n re Vioxx, 557 F. Supp. 2d at 744
(quoting Acuna, 200 F.3d at 340); see also Steering
Comm. v. Exxon Mobil Corp., 461 F.3d 598, 604 (5th
Cir. 2006). For this reason, petitioners’ suggestion
that the PTOs “drove up plaintiffs[’] litigation costs’
(Pet. 16) is difficult to understand. If petitioners art
uggesting that they were compelled to hire an ex
pert, that suggestion lacks merit. The district court
was clear that any report from a treating physician
would do — it was “not requiring that Plaintiffs pro
vide expert reports sufficient to survive a Daubert
challenge or even provide an expert who will testify
it trial.” In re Vioxx, 557 F. Supp. 2d at 744
Petitioners rhetoric regarding their inability t
reach the courthouse steps on the merits of their claims
rings hollow. (Pet. 27.) The Federal Rules establish myr
iad tools to weed out frivolous or meritless claims, and,
thus, many such cases never reach the merits stage of lti
vation. See. e.g.. Fed. R. Civ. P. 12
Petitioners also complain about the process by
which PTOs 28 and 29 were adopted, contending that
there was a “lack of adversarial presentation” — and
that the orders subjected non-settling plaintiffs to
“assembly line motions to dismiss.” (Pet. 28, 30.)
That is not a fair characterization. Although the dis-
trict court entered the orders on its own initiative,
those orders were subjected to testing by the adver-
sarial process for more than a year thereafter, at the
(repeated) behest of petitioners and other litigants
below. The deadlines for compliance were officially
extended once for all plaintiffs and then unofficially
extended several additional times for petitioners, as
they filed motion after motion seeking vacatur of the
order and recusal of the district court judge below. It
was only after petitioners made it apparent that they
would never comply with these orders that the dis-
trict court dismissed their claims.'!8 As the court
explained: “[I]t 1s now a year and a half since many
of the plaintiffs in these cases were first directed to
produce expert reports, but, rather than simply com-
ply with the Court’s orders, their attorney continues
to argue that the deadlines are either too harsh or
are inapplicable. At this stage of the proceedings,
dismissal with prejudice is the only appropriate rem
edy for the plaintiffs’ repeated failure to produce
reports in accordance with PTOs 28 and 29.” (Pet
App. C, at 23a-24a.)
The district court also noted that petitioners’ coun
sel had engaged 1n such tactics outside of the instant MDL
proceeding and, as a result, had been denied pro hac vice
admission in at least one other junsdiction. (See Pet. App
C, at 25a & n.3.)
For all of these reasons, the district court acted
well within its discretion in issuing and enforcing
PTOs 28 and 29.
CONCLUSION
For the foregoing reasons, the Court should de
the petition for a writ of certiorari
Xe spectfully ubmiutte
PHILLIP A. WITTMANN JOHN H. BEISNEI
DOROTHY H. WIMBERL) Counsel of Record
STONE PIGMAN JESSICA D. MILLER
WALTHER WITTMANN GEOFFREY M. WYAT‘’
LLC SKADDEN, ARPS, SLATI
546 Carondelet St MEAGHER & FLOM LLP
New Orleans, L.A. 70130 1440 New York Ave., N.W
Telephone: (504) 581-3200 Washington, D.C. 20005
Facsimile: (504) 581-3361 Telephone: (202) 371-700
pwittman@’stonepigman.ci Facsimile: (202) 393-576(
lohn.Beisnet kadads
DOUGLAS R. MARVIN
WILLIAMS & CONNOLI
LLP
725 Twelfth Street, N.W
Washington, D.C. 20005
Telephone: (202) 434-500!
Facsimile: (202) 434-5029
dmarvin@wce.com
January 21. 2011
APPENDIX
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
Inre: VIOXX ‘ MDL Docket No.
1657
PRODUCTS '
LIABILITY ”
LITIGATION ‘ SECTION L
x JUDGE FALLON
. MAG. JUDGE
. KNOWLES
THIS DOCUMENT RELATES TO ALL CASES
PRETRIAL ORDER NO. 28
Prima Fade Evidence of Usage, Injury and
Causation),
This Order requires all parties who ar
plaintiffs with personal injury claims pending in
MDL Docket No, 1657 (“Plaintiff or “Plaintiffs”) as of
November 9, 2007, or (2) claimants who have sought
tolling pursuant to the tolling agreement dated Jun:
1, 2005 (collectively “Claimant” or “Claimants’) to
produce specified information regarding their claim
unless the claim is eligible for, and has been
submitted to, the Resolution Program. This Order
however, does not apply to plaintiffs who file claim
after November 9, 2007 (“Post 11.09 Plaintiffs’). Post
eparate order
rd No. 29 Persons who represent
proceeding shall comply
emselves pro se in thi:
/ of coun e | by thi
fully with all obhgations requir
} } }
T cy
Order, unl otherwise rte
I. PRESERVATION NOTICE
REQUIREMENT
ntry ol tl
Order, counsel for a_ Plaintiff
Claimant subject to this Order shall
notify the following individuals’ or
entities, by registered mail, that they
may have records relevant to. the
Plaintiffs or Claimant’s claim in thi
MDL Proceeding (“Claim”) and that any
records relating to the Plaintiff o1
Claimant must be preserved pursuant t
Pretrial Order No. 1 entered by this
Court on February 17 ZUV9 the
“Notice’), pending collection by th
Plaintiff or Claiman
\ll Pharmacies that dispensed
‘ 1.
ny medications to the Plaintiff o1
Claimant for the period from
y
All Physicians, Medical Faciliti
ther Healthcare Providers and/or
other persons (“Other Providers”
who Plaintiff or Claimant claim
provided any samples of Viox»
he Plaintiff or Claimant
All Physicians, Medical Facilities
and/or other Healthcare Providers
who prescribed Vioxx for the
Plaintiff or Claimant:
\]] Physimans and/or’ other
Healthcare Providers who treated
Plaintiff or Claimant for’ the
period from January 1, 1995 to
the present; and
{f Plaintiff or Claimant is seeking
lost wages, all of his employers
for the period from three years
prior to the date for which he is
seeking lost wages through the
last day for which Plaintiff or
Claimant is seeking lost wages
A copy of Pre Trial Order No. 1 shall be
attached to the Notice and all copies ol
the Notice shali be preserved by Counsel]
for Plaintiff or Claimant for so long as
the claim remains pending in this
‘eeding.
By no later than March 15, 2008
Plaintiff or Claamant shall serve a
statement listing the names and
addresses of all individuals or entities to
which Notices were sent, along with
pies Ol the Notices and a= signed
certification that the Notices were sent
as required by this Order. Service by
Plaintiffs shall be made in accordance
with the service procedures of PTO No.
8 and paragraphs 5 through 7 of PTO
I8C. Service by Claimants shall be
made on Susan Giamportone at Womble
Carlyle Sandrige & Rice, PLLC.
Plaintiffs or Claimants who fail to fully
comply with the requirements of this
Order shall be given notice by e-mail or
fax from Defendants’ Liaison Counsel or
his designee and shall be provided thirty
(30) additional days to cure such
deficiency (“Cure Period’). No other
extensions will be granted, except for
vood cause shown. If Plaintiff or
Claimant fails to cure the deficiency
within the Cure Period, Defendant's
Liaison Counsel shall file a Motion to
Show Cause why the claim should not
be dismissed with prejudice or, if tolled,
why the tolling for that Claimant should
not be terminated. Plaintiff or Claimant
shall thereupon have thirty (30) days to
respond to the Notice to Show Cause.
Any failure to respond to the Motion
within the required period of time shall
lead to the dismissal of the claim with
prejudice or, if tolled, the termination of
tolling for that claim, except for good
cause shown
A-6
I Plaintiff or Claimant may not seek to
introduce into evidence at trial any
document or information asserting that
Vioxx was dispensed by a pharmacy or
that Vioxx was provided to the Plaintiff
or Claimant as a sample if a Notice were
not sent to the Plaintiffs or Claimant’s
pharmacy, physician, other healthcare
provider and/or Other Provider as
required by this Order, except upon
leave of court for good cause shown. A
Plaintiff or Claimant who fails to comply
with this Order may also be subject to
other sanctions or orders
II. DISCOVERY REQUIREMENTS
\ All Plaintiffs or Claimants who claim to
have suffered an injury as a result of
taking Vioxx must produce all of the
information described in this Section I]
unless (a) the injury alleged is a
Myocardial Infarction (“MI”), Sudden
Cardiac Death (“SCD”), or Stroke as
those terms are defined, infra., in
Section III]. and (b) the Plaintiff or
}
|
A
Claimant has submitted the claim to the
Resolution Program:
\ll pharmacy records regarding
the dispensing of drugs to the
Plaintiff or Claimant for the
period from January 1, 1995 to
the present, along with a signed
certification from the respective
pharmacy or pharmacies
indicating that the production is
complete
If any death is claimed, a
statement to that effect along
with a copy of the death
certificate and autopsy report, if
one was performed.
Kor Plaintiffs or Claimants
alleging a MI, SCD or Stroke
Injury, an Amended and
Supplemental Plaintiff Profile
Korm” (“ASPPF’) and
authorizations or “Claimant
Profile Form” (“CPE”) in a form
attached hereto as. Exhibit A
unless Plaintiff or Claimant has
as of the date of this Order
submitted a Plaintiff Profile Form
or Claimant Profile Form. Service
by Plaintiffs shall be made in
accordance with the © service
procedures of PTO No. 8 and
paragraphs 5 through 7 of PTO
18C. Service by Claimants shall
be made on Susan Giamportone
at Womble Carlyle Sandrige &
Rice, PLLC.
A-8
or Plaintiffs not alleging a MI,
SCD or Stroke Injury, an ASPPF
and authorizations in the forms
attached hereto as Exhibit A and
served in accordance with the
service methods of PTO 8 and
paragraphs 5 through 9 of 18C.
Answers to the Interrogatories set
out as Exhibit B. Service by
Plaintiffs shall be made in
accordance with the _— service
procedures of PTO No. 8 and
paragraphs 5 through 7 of PTO
18C. Service by Claimants shall
be made on Susan Giamportone
at Womble Carlyle Sandrige &
Rice, Piaa.
All medical records relating to the
Plaintiff or Claimants from all
healthcare providers requested in
the Amended and Supplemental]
Plaintiff Profile Form for the
period from January 1, 1995 to
the present, along with a signed
certification from each healthcare
provider who has records relating
to the Plaintiff indicating that all
records in the possession, custody
or control of the Provider have
been produced. Service — by
Plaintiffs shall be made. in
accordance with the service
A-9
procedures of PTO No. 8 and
paragraphs 5 through 7 of PTO
18C. Service by Claimants shall
be made on Susan Giamportone
at Womble Carlyle Sandrige &
Rice, PLLC.
An affidavit signed by the
Plaintiff or Claimant (a) attesting
that records have been collected
from all pharmacies that
dispensed drugs to, or for, the
Plaintiff or Claimant; (11)
attesting that all medical records
described in subparagraph (6)
above have been collected; and (i111)
attesting that all records collected
pursuant to subparagraphs A (1),
(2) and (6) have been produced
pursuant to this Order, along
with an index or list identifying
the source of the records. Service
by Plaintiffs shall be made in
accordance with the © service
procedures of PTO No. 8 and
paragraphs 5 through 7 of PTO
18C. Service by Claimants shal]
be made on Susan Giamportone
at Womble Carlyle Sandrige &
Rice, PLLC.
A Rule 26(a)(2) case specific
expert report from a= medical
expert attesting (1) to a
A-10
reasonable degree of medical
probability that the Plaintiff or
Claimant suffered an injury and
(i) that Vioxx caused the injury.
The case specific expert report
must include (1) an explanation of
the basis of the attestation that
Vioxx caused the Plaintiff or
Claimant to suffer the injury, (1)
an identification of any other
causes that were considered in
formulating the opinion, (i) a
description of the specific injuries
allegedly suffered; (iv) a
description of the specific medical
findings that support the
diagnosis of those injuries; and (v)
and identification of all
documents relied on by the expert
in forming his opinions.
If any of the documents described in
paragraphs (A) (1), (2) and (6) above do
not exist, the Plaintiff shall state that
fact in his or her affidavit and the
reason why they do not exist and
provide a- certified “No Records
Statement” from the pharmacy. or
healthcare provider.
Plaintiffs and Claimants shall produce
the items set forth above in this Section
Il in accordance the following schedule:
A-1]
For Plaintiffs and Claimants
whose last name begins with the
letters A through L, on before
May 1, 2008;
For Plaintiffs and Claimants
whose last name begins with the
letters M through Z, on or before
July 1, 2008.
Plaintiffs shall serve the items set
forth above in accordance with
the service procedures of PTO 8
and paragraphs 5 through 7 of
PTO 18C. Claimants shall serve
the items set forth above on
Susan Giamportone at Womble
Carlyle Sandrige & Rice, PLLC
Plaintiffs whose cases are
subsequently transferred or
removed to this Court shall
produce the items set forth above
within sixty (60) days of removal
(measured from the date the
notice of removal is filed in this
Court) or transfer (measured from
the date of filing in this Court of
the Transfer Order issued by the
Judicial Panel on Maultidistrict
Litigation) of their case to this
proceeding
D.
A-12
Plaintiffs or Claimants who fail to fully
comply with the requirements of this
Order shall be given notice by e-mail or
fax from Defendants’ Liaison Counse! or
his designee and shall be provided thirty
(30) additional days to cure_ such
deficiency (“Cure Period’). No other
extensions will be granted, except for
good cause shown. If Plaintiff or
Claimant fails to cure the deficiency
within the Cure Period, Defendant's
Liaison Counsel shall file a Motion to
Show Cause why the claim should not
be dismissed with prejudice or, if tolled,
why the tolling for that Claimant should
not be terminated. Plaintiff or Claimant
shall thereupon have thirty (30) days to
respond to the Notice to Show Cause.
Any failure to respond to the Motion
within the required period of time shall
lead to the dismissal of the claim with
prejudice or, if tolled, the termination of
tolling for that claim.
Nothing in this Order abrogates or
replaces each Plaintiffs obligation to
submit the Plaintiff Profile Form,
authorizations, and other materials
required under Pretrial Order 18C. The
Plaintiff need not re-submit a Plaintiff
Profile Form if one has already been
submitted with respect to his or her
claim.
Wi. DEFINITIONS
A For purposes of this Order onl;
“Myocardial Infarction” (“MI”) is defined
as follows:
1 A final or discharge diagnosis
ontemporaneous medical record
of a myocardial infarction o1
heart attack; or
2 A diagnosis or affirmative finding
in the contemporaneous medical
records (eg., a report of
consultation) by a cardiologist of a
myocardiai infarction or heart
attack; or, within 14 days of
discharge from the hospitalization
related to the Event, an
independent diagnosis by a
treating cardiologist that the
Event was a myocardial!
infarction or heart attack;
provided that, in either instance,
the final or discharge diagnosis
does not rule out a myocardial
infarction; or
3 If the medical records are silent
as to whether or not plaintiff had
a myocardial infarction, new
pathological Y) Wave i: tv !
more contiguous leads: O!
lf the medical records are silent
is to whether or not plaintiff had
a myocardial infarction, (1) Sign:
and symptoms’7 described in
medical records of a heart attack
(including but not limited to chest
pain, pressure, tightness _ or
discomfort, pain or discomfort in
the upper areas of the body
including but not limited to one or
both arms, the back, neck, jaw or
stomach, or shoulders; shortness
of breath, weakness, dizziness,
cold sweat, or excessive sweating,
nausea, weakness, fatigue, loss of
consciousness or posture,
lightheadedness, feeling of
z r
faintness, heart-burn O}
indigestion sensations, feelings of
restlessness or anxiousness, a
sense of impending doom,
disorientation, lips, hands or feet
turning shghtly blue, abnormal
heart rhythms (arrhythmias), or
loss of consciousness, cardiac
arrest, blood pressure
fluctuations or drops requiring
medical intervention) or new
ischemic ST-T wave changes on
an electrocardiogram in two or
more contiguous leads; AND (11) a
rise and tall of cardia enzyme
that includes a mse in serun
creatine kinase MB (CK-MB) to
greater than two times the upper
limit of normal (based on the
individual’s laboratory norma!
range) or a rise 1n serum cardia
troponin greater tnan two time
the upper limit of normal tha
oiven laboratory consider
diagnostic for infarctions. (In the
event that the laboratory record
do not reflect the norma!
liagnostic range for troponin that
utilized by that pecifi
laboratory, a rise in the troponir
to greater than 1.5 ng/ml] shall be
deemed CO indicate ad mvocardla
infarction.)
i
+
A] event n< a mvyocarala
infarction under definition No
Or } above if myocardia!}
infarction is ruled out a a
diagnosis un the dischargs
summary or by an_ in-house
cardiology consult at the time of
the event, or the final diagnos}
angina or unstable ang1!
xe). purpost¢ )] thi (Orde!
Sudden Cardia Death (SCD)
defined asa witnessed instantaneou
near-instantaneo
one hour of non diagnosti Symptoms, Oo!
in unwitnessed unexpected udden
deatt In which criterla lor a fatal
coronary. cerebrovascular event or other
iu revent are not met
} y | rp i ( )Y y ?
Iischen >t tro} lefined
n or ad narge dlagnos)
ntemporaneous medical record
if an ischemic stroke or ischemi«
cerebrovascular event or accident
e., 1schemlk troke Intrac}) ial
thrombos! cerebral emt m
thrombotic troke, embolic troke
icunar infarct, lacunar stroke
thromboti« occlusion
cerebrovascular event or accident
that is not a primary hemorrhagic
vent. and cerebral! infarction: or
d hemorrhag { ke that l
e( ndary | Lne rry previou ly
tec) 7
li tne I i Y } narve qd) rmnO
lent a to whnetner or not
laimant had an Ischemic Stroke
diagnosis or affirmative finding
the CONveTMNporaneou medica!
lization related to th
vent, an independent diagno
by a treating neurologist tnat
t ? rT) ‘ t [ "4
a
Kivent 1ot Ischen
% de
I 3% re YG {
iccident is ruled out
lliagnosis in tne discha)
1+ 4 1241
urologist within 1 day
qischarge Iron tI
} a ne, eer ; P
yOSpitalizatl r ¢
e Event
I rri
hemorrhagi
ePreprova L] ‘
tne qliagnosi tne
mscnarge summary or Dy
’ 4 . - “a “Ee
reating neurologist witnl
{1 days of discharge fro)
the hospitalization related
transient ischemic attack 1:
the diagnosis in the
discharge summary or 1s
the diagnosis of a treating
14 day:
yf discharge from the
neurologist with
hospitalization related Oo
the Event
[\ PENALTIES FOR FRAUD AND
DECEPTION
— Siw send . i ] : _++ . h
ANY fialntliil (and nis r ner attorneys) wno
ubmits false or intentionally misleading information
or otherwise attempts to satisfy the documentation
requirements of this Order through any form of
deception, dishonesty or fraud shall be subj to
appropriate sanctions (including monetary sanctions
] }
and costs) and dismissal with prey
Fed. R. Civ. P
ce Nur ] 1t 1
New Orleans, Louisiana, this
day of 2007.
ELDON EF. FALLON
UNITED STATES DISTRICT JUDGI
A-19
UNITED STATES DISTRICT COURT
KASTERN DISTRICT OF LOUISIANA
Inre: VIOXX * MDL Docket No. 1657
x
PRODUCTS :
LIABILITY ,
LITIGATION ad SECTION L
JUDGE FALLON
THIS DOCUMENT
RELATED TO
ALL CASES
° MAG. JUDGE
? KNOWLES
PRETRIAL ORDER NO. 29
Rules and Procedures Relating to
All Cases Filed or Transferred On or After
November 9, 2007
This Order applies to all plaintiffs who file
personal injury claims directly in, or whose claims
are transferred into, MDL Docket No. 1657 on or
after November 9, 2007 (“Post 11.09 Plaintiffs”).
Persons who represent themselves pro se in this
proceeding shall comply fully with all obligations
required of counsel by this Order, unless otherwise
stated
I. PRESERVATION NOTICE
REQUIREMENT
\ Pnor to filing a claim, counsel or if a
plaintiff is proceeding pro. se, the
plaintiff shall be responsible for
ensuring that all records in_ the
possession of the plaintiffs’ pharmacies
and healthcare providers as described in
paragraph (8B) below’ have © been
preserved, collected and reviewed
Within thirty (380) days of agreeing to
accept a client for purposes of pursuing
Vioxx litigation, counsel shall notify the
individuals or entities listed below in
Paragraph B, by registered mail, that
they may have records relevant to the
putative plaintiff's (“Plaintiff or
Plaintiffs”) claim In this MDL
proceeding (“Claim”) and that any
records relating to the Plaintiff must be
preserved pursuant to Pretrial Order No
l entered by this Court on February 17,
2005 (the “Notice’), pending collection
by the Plaintiff. Plaintiffs proceeding
pro se must notify the individuals or
‘>
entities listed below in Paragraph
within thirty (30) days of filing an action
\
A-2]
All Pharmacies that dispensed
any medications to the Plaintiff
for the period from January l,
1995 to the present;
All) Physicians, Medical Facilities,
other Healthcare Providers and/or
others persons (“other Providers’)
who Plaintiff claims provided any
samples of Vioxx to the Plaintiff;
All Physicians, Medical Facilities
and/or other Healthcare Providers
who prescribed Vioxx for the
Plaintiff;
All Physicians and/or’ other
Healthcare Providers who treated
Plaintiff for the period from
January 1, 1995 to the present:
and
lf Plaintiff is seeking lost wages,
all of his/her employers for the
period from three years prior to
the date for which he/she is
seeking lost wages through the
last day for which Plaintiff or
Claimant is seeking lost wages
copy ol Pre frnal Order No
(Paragraph 13 Preservation of
Evidence) shall be attached to the
Notice and all copies of the Notice shaj)
be preserved by Counsel for Plaintiff for
so long as the claim remains pending in
this Proceeding.
Within ten (10) days of filing a claim,
Plaintiff shall serve a statement listing
the names and addresses. of all
individuals or entities to which Notices
were sent, along with copies of the
Notices and a signed certification that
the Notices were sent as required by
this Order. Service shall be made in
accordance with the service procedures
of PTO No. 8 and paragraphs 5 through
7 of PTO 18C.
Plaintiffs who fail to fully comply with
the requirements of this Order shall be
fiven notice by e-mail or fax from
Defendants’ Liaison Counsel or his
designee and shall be provided thirty
(30) additional days to cure such
deficiency (“Cure Period”). No other
extensions will be granted. If Plaintiff
fails to cure the deficiency within the
Cure Period, Defendant’s — Liaison
Counsel shall file a Motion to Show
Cause why the claim should not be
dismissed with prejudice. Plaintiff shall
thereupon have thirty (30) days to
respond to the Notice to Show Cause.
Any failure to respond to the Motion
within the required period of time shall
lead to the dismissal of the claim with
prejudice, except for good cause shown.
oe Plaintiff may not seek to introduce into
evidence at tmal any document or
information asserting that Vioxx was
dispensed by a pharmacy or that Vioxx
was provided to the Plaintiff as a
sample if a Notice were not sent to the
Plaintiffs pharmacy, physician, other
healthcare provider and/or Other
Provider as required by this Order,
except upon leave of court for good cause
shown. A Plaintiff who fails to comply
with this Order may also be subject to
other sanctions or orders.
IT. DISCOVERY REQUIREMENTS
A. Within forty-five (45) days of filing his
or her claim in this MDL, or within
forty-five (45) days of their case being
transferred (measured from the date of
filiung with this Court of the Transfer
Order issued by the Judicial Panel on
Multicistrict Litigation) or removed
(measured from the date of filing with
this Court of the Notice of Removal) to
this MDL, all Post 11.09 Plaintiffs who
claim to have suffered an injury as a
result of the use of Vioxx must produce
the following information:
A-24
All pharmacy records regarding
the dispensing of drugs to the
Plaintiff for the period from
January 1, 1995 to the present,
along with a signed certification
from the respective pharmacy or
pharmacies indicating that the
production is complete.
All medical records relating to the
Plaintiff from all healthcare
providers requested in_ the
Amended and Supplemental
Plaintiff Profile Form for the
period from January 1, 1995 to
the present, along with a signed
certification from each Healthcare
Provider who has records relating
to the Plaintiff indicating that all
records in the possession, custody
or control of the Provider have
been produced
If any death is claimed, a
statement to that effect along
with a copy of the death
certificate and autopsy report, 1
one was performed
An Amended and Supplemental
Plaintiff Profile Form (attached
as Exhibit A), records requested
therein. and executed
A Zo
Authorizatiens for Release of
Records pursuant to PTO 18A, B
or C, as applicable. Service by
Plaintiffs shall be made _ in
accordance with the © service
procedures of PTO No. 8 and
paragraphs 5 through 7 of PTO
IBC. Service by Claimants shail
be made on Susan Giamportone
at Womble Carlyle Sandrige &
Rice, PLLC
Answers to the Interrogatories set
our in Exhibit B. Service by
Plaintiffs shall be made _ in
accordance with the © service
procedures of PTO No. 8 and
paragraphs 5 through 7 of PTO
18C. Service by Claimants shall
be made on Susan Giamportone
at Womble Carlyle Sandrige &
Rice, PLLC
An affidavit signed by the
Plaintiff @) attesting that records
have been collected from all
pharmacies that dispensed drugs
to, or for, the plaintiff; (i)
attesting that all medical records
described in paragraph (2) above
have been collected; (an) attesting
that all records collected
pursuant to subparagraphs (1), (2)
and (3) have been’ produced
\-26
pursuant to the Order, along with
an index or list identifying the
source of the records; and (iv)
citing the specific page of the
medical records containing the
diagnosis of the alleged injury.
A Rule 26(a)(2) case-specific
expert report from a medical
expert attesting (1) that the
Plaintiff suffered an injury and (11)
that Vioxx caused the injury. The
case-specific expert report must
include (1) an explanation of the
bases of the attestation that
Vioxx caused the plaintiff to
suffer the injury; (11) an
identification of any other causes
that were considered in
formulating the opinion; (ali) a
description of the specific injuries
allegedly suffered: (iv) a
description of the specific medical
findings that support the
diagnosis of those injuries; and (v)
an identification of all documents
relied on by the expert in forming
his Opinions.
lf any of the documents described in
paragraphs A (1), (2) and (3) do not exist,
the Plaintiff shall state that fact in his
or her affidavit and the reason why they
do not exist and provide a certified “No
Records Statement” from the pharma
or healthcare provider
Plaintiffs who fail to fully comply with
the requirements of this Order shall be
given notice by e-mail or fax from
Defendants’ Liaison Counsel or hi:
designee and shall be provided thirty
(30) additional days to cure’ such
deficiency (“Cure Period”). No other
extensions will be granted, except for
good cause shown. If Plaintiff fails to
cure the deficiency within the Cure
Period, Defendant's Liaison Counsel
shall fue a Modem to Show Cause why
the claim should not be dismissed with
prejudice. Plaintiff shall thereupon hav:
thirty (30) days to respond to the Notice
to Show Cause. Any failure to respond
to the Motion within the required period
of time shal] lead to the dismissal of the
laim with prejudice
Nothing in this Order abrogate:
replaces each Plaintiff's obligation to
submit the Plaintiff Profile Form
authorizations, and other material
required under Pretrial Order 18C. The
Plaintiff need not re-submit a Plaintiff
Profile Form if one has already been
submitted with respect to his or he
claim
| ( ) ’( )
PLAINTIFFS
: f rt ! ‘
} , ~ + } {) rc Ve {
Prior peptember 39 ZUU04
approximately 100 lawsuit nad
been filed against Merck & Co. by
plaintiffs alleging variou
Wnyurie
from the use of
4 A 7
Vioxx. In New
Jersey an Order 10) peen
entered O} May (0). 2003
establishing a coordinated
proceeding for Vioxx htigants and
on September 30. 2002. an Order
vas entered in California for the
ime purp
} pept mbde} 18, (O04 Mi re
Vithdrew Vioxx from the market
The withdrawal of Vioxx led te
tensive publicity nationwide 11
newspapers and magazines, on
elevision and radio
ie Internet. While plaintiff
ounse!] had xTte
and acro
nsivel
idavertised eeKIng chent
pursu¢ laim against Mercl
relating to the use of Vio before
pt m he MVOA {
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‘ y
defendants may take a long time
and much effort
However, the cost and risk
inherent in prosecuting the first
series of claims in a large-scale
pharmaceutical tort is not the
Same throughout the btigati nN
because of the extensive publicity
and extensive advertising that
followed the withdrawal of Vioxx,
users of Vioxx (and their lawyers)
have had ample notice of the
possibility that they may have a
claim against Merck in connection
with their use of the drug. The
uncertainty of the number of
potential claims in a litigation of
this magnitude makes the
management of this proceeding
exceedingly difficult both for the
parties and the Court
The Vioxx litigation is an extremely
mature litigation. To date, MDL and
state court lawyers have tried 17 cases
and taken over 1,800 depositions; more
)
than 50 mullion pages of documents
have been produced, and an enormous
volume of electronic data, and
substantial Third Party discovery has
curred. Because of this extensive work
done by the PSC and certain state court
lawyers, the cost of litigating Vioxx
claims has been substantially reduced
Given the extensive amount of discovery
and trial preparation that has been
undertaken and already achieved as
well as the work on, and lessons learned
from, bellwether trials conducted in this
Court and others over the last several
years counsel filing new claims can
reasonably expect to expend much less
time and resources prosecuting those
cases than counsel who have. been
involved in those proceedings from the
beginning, and I encourage counsel to
consider such disparity in negotiating
IV. PENALTIES FOR FRAUD AND
DECEPTION
Any Plaintiff (and his or her attorneys) whi
submits false or intentionally misleading information,
or otherwise attempts to satisfy the documentation
requirements of this Order through any form of
deception, dishonesty or fraud shall be subject to
appropriate sanctions (including monetary sanctions
and costs) and dismissal! with prejudice pursuant to
Fed. R Civ. P. 37. Post 11.09 Plaintiffs who fail to
fully comply with the requirements of this Order may
be subject to sanctions and dismissal of their claims
pursuant to Fed. R. C
New Orleans, Louisiana, this day ef
November, 2007.
~
'
ve
—_
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
Inre: VIOXX * MDL Docket No. 1657
*
PRODUCTS al
LIABILITY *
LITIGATION * SECTION L
*
* JUDGE FALLON
This document *
related to: *
ALL CASES * MAG. JUDGE
* KNOWLES
*
* * * *
PRETRIAL ORDER NO. 30
Having reviewed the Resolution Program
agreement entered into by the PSC and Merck on
November 9, 2007, the Court finds that with some
exceptions, further activity in this MDL proceeding
should be stayed temporarily in order to give each
eligible plaintiff, with the advice of counsel, sufficient
time to determine whether it is in his or her best
interest to participate in the Resolution Program,
and to give counsel sufficient time to comprehend the
Resolution Program and advise thei clients
accordingly.
A-386
Accordingly, the Court hereby QRDERS as
follows.
e All activities in this MDL _ proceeding
GQneluding all activities in each case in
which a plaintiff is eligible to participate in
the Resolution Pregram) are hereby stayed
pending further order of this Court, except
as follows:
The stay shall not apply to cases
currently pending in this proceeding
that are not eligible for participation in
the Resolution Program, but only to the
extent that plaintiffs are required to
engage in certain discovery and other
pretrial actavities by Pretrial Order 28,
entered by this Court on November 9,
2007.
The stay shal] not apply to any cases in
this proceeding (or that may be later
transferred into this proceeding) filed on
or after November 9, 2007, but only to
the extent that plaintiffs are required to
engage in certain discovery and other
pretrial activities by Pretrial Order 29,
entered by this Court on November 9Q,
2007.
This Order shall not operate to stay the
various de bene esse depositions that the
parties previously scheduled, including
the discovery depositions related thereto.
Such depositions will be important to
the outcome of this htigation, regardless
of whether individual plaintiffs choose
to participate in the Resolution Program.
e At the appropriate time, the Court intends
to issue a further order lifting this stay with
respect to the eligible plaintiffs who decide
not to participate in the Resolution Program
Further, the Court will consider motions to
lift the stay with respect to specific
activities in this litigation upon good cause
shown.
ITISSO ORDERED.
pew
New Orleans, Louisiana, this (
November, 2007.
ELDON E. FALLON
UNITED STATES DISTRICT
JUDGE
A-38
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
In re: VIOXX * MDL Docket No. 1657
.
PRODUCTS *
LIABILITY *
LITIGATION x SECTION L
‘
“ JUDGE FALLON
* MAG. JUDGE
* KNOWLES
* x **k * *
THIS DOCUMENT RELATES TO ALL CASES
PRETRIAL ORDER No. 31
(Registration of Claims)
The Court hereby orders as follows’ with
respect to the registration of claims:
(1) The Court hereby orders the
registration of claims as follows:
(a) All Counsel of Record in
this proceeding shall be responsible for
designating Primary Counsel for any claim
pending in this coordinated proceeding in
which they have an Interest (as defined below
in paragraph 5) and that Primary Counsel
A-39
shall register such claims in accordance with
this Order.
(b) All Counsel of Record in
this proceeding who have at any time
submitted a request for tolling for a claimant
(hereinafter “Tolling Claimant”) pursuant to
the Notice of Filing of Tolling Agreement
which was filed in Federal Multidistrict
Litigation No. 1657 on June 9, 2005
(hereinafter “Tolling Agreement”) © shall
designate Primary Counsel for each Tolling
Claimant's claims, and that Primary Counsel
shall register such claims in accordance with
this Order.
(c) All Counsel of Record with
claims pending in this_ proceeding = shall
register (or ensure that other attorneys
register) all claims in which they have an
Interest (as defined below in Paragraph 5) that
are pending in any court or other tribunal in
the United States.
(d) All persons who represent
themselves pro se in this proceeding shall
register their claims in_ accordance with
Paragraph 4 below.
(2) The registration of claims’ by
counsel shall be provided in the form of a
Registration Affidavit and its Exhibit 1, altogether
set forth as Exhibit A to this Order. Counsel shall
provide the intormation required by Exhibit A
completely and accurately. The form shall provide
the information required as of (a) October 1, 2007, (b)
November 9, 2007, and (c) the date on which the
Registration Affidavit is served and filed. The
A-40
Registration Affidavit shall be filed no later than
January 15, 2008.
(3) Registration Affidavits, along
with their exhibits, shall be served on Defendant
Merck & Co., Ine. (“Merk”), the Executive
Committee to the Plaintiffs’ Steering Committee
(“PEC”), and the Claims Administrator.
(4) Persons who represent
themselves pro se in this proceeding shall complete
the Pro Se Registration Affidavit attached hereto as
Exhibit B and shall serve Defendant Merck, PEC,
and the Claims Administrator, by no later than
January 15, 2008.
(5) Counsel shall be deemed to have
an “Interest” in the claim of a Plaintiff or Tolling
Claimant if Counsel or any person affiliated with, or
related in any way to, Counsel: (a) has an
engagement or retainer agreement with such
Plaintiff or Tolling Claimant; (b) is listed as _ the
counsel of record for such Plaintiff in filed pleadings
related to Vioxx; (c) has entered a Tolling Claimant
into a Tolling Agreement; (d) has entered an
appearance for such Plaintiff or Tolling Claimant in
any legal action related to Vioxx; (e) would benefit
directly or indirectly from any payment to settle any
claim of such Plaintiff or Tolling Claimant connected
with Vioxx; or (f) otherwise has any financial interest
of any kind whatsoever in any claim of such Plaintiff
or Tolling Claimant connected with Vioxx.
(6) Primary Counsel shall file the
Registration Affidavit and its Exhibit 1 in the
manner applicable in this coordinated proceeding for
filing documents with the Court under seal. Pro Se
Claimants shall do likewise with respect to their Pro
Se Registration Affidavit. Primary Counsel shall also
A-4]
serve the Registration Affidavit and its Exhibit 1 on
Merck, the PEC, and the Claims Administrator via
electronic mail. Specifically, Primary Counsel shall
attach three files to a_ single electronic mail
message—(i) the executed Registration Affidavit in
Adobe pdf format; (ii) Exhibit 1 to the Registration
Affidavit in Excel format; and (iii) a certification of
service in Adobe pdf format—and send that message
to the following addresses:
a. For Merck:
registration@hugheshubbard.com
b. For the PEC: rherman@hhkc.com
C, For the Claims Administrator:
claimsadmin@browngreer.com
(7) The subject line in the email
should state: “Registration Affidavit and Exhibit 1 for
[insert name of firm]. Pro Se Claimants shall serve
their Registration Affidavits on Merck, PEC and the
Claims Administrator at the above email addresses
If the Pro Se Claimant does not have access to email,
the Plaintiff or Tolling Claimant shall send the
Registration Affidavit via U.S. Mail postmarked no
later than January 8, 2008 to:
Claims Administrator
115 8. 15th Street
Suite 400
Richmond, VA 23219-4209
Main Number: 804.521.7200
(8) Primary Counsel and Pro Si
Claimants must certify in heu of oath [pursuant to 28
U.S.C. § 1746] that the information contained in the
Registration Affidavit is true and correct to his or her
knowledge. Intentionally incomplete or misleading
responses shall subject Primary Counsel and Pro Se
Claimants to sanctions.
(9) Primary Counsel shall serve a
revised Registration Affidavit and Exhibit 1 when he
or she acquires or loses his or her Interest in a
Plaintiffs or Tolling Claimant’s claim, when he or
she becomes Primary Counsel or ceases to be
Primary Counsel, or when because of changed
circumstances his or her Registration Affidavit
otherwise becomes materially untrue, in whole or in
part. In such instances, Primary Counsel must serve
a true and correct Registration Affidavit within 30
days of the changed circumstances. The revised
Registration Affidavit shall identify all Plaintiffs and
Tolling Claimants in whose claims Primary Counsel
has an Interest as of the date that he or she executes
the Registration Affidavit. This obligation § shall
terminate on September 1, 2008.
(10) The Court expects all Counse!
and all Pro Se Plaintiffs and Tolling Claimants to
comply with this Order. Failure to meet the
requirements of this Order by the deadlines set
herein will subject non-compliant Counsel to a show
cause hearing as to why they have not complied with
this Order and as to why claims in which they have
an Interest should not be dismissed
Registration Affidavit
j I dal
itted to practice law 1n the state ol!
The nan ire I |
}
4 T } } ‘
| ] K ¢ tT? ertificat f : lant t 4
.
etrial ()rdey \ ( rere? ] itne irrent
ord nated proceed ni
Kixhibl i to this certlilcation contalns a
} 1. ‘ P ,
of all of the Plaintiffs and/or
}
complete hi
Interest” and
along with a
true ana
Tolling Claimants in which I have an
for whom | am “Primary
notation of all firms with n Interest in
t ()ctober 9007
ertiyy unde? pe iit I !
; a re ne Trile 1corre
( ‘
OR
other
cases
terms
myself and al
on behalf of m:
counsel with an Interest in the
listed in Exhibit 1, agree to the
of the MSA and will recommend
all Plaintiffs and/or Tolling Claimants
listed
1}
on Exhibit I should enroll in the
Program
a
, dO not agree to the terms
of the MSA and will not recommend that
any of the Plaintiffs and/or
Tolling Claimants listed on Exhibit
enroll
in the Program
A-46
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN RE: VIOXX MDL NO. 1657
PRODUCTS
LIABILITY
LITIGATION SECTION: L
JUDGE FALLON
MAG. JUDGE
KNOWLES
THIS DOCUMENT RELATES TO:
David Agard, et al. v. Merck & Co., 05-1089
Glenn Dier, et al. v. Merck & Co., 05-1088
Adnan Aljibory, et al. v. Merck & Co., 05-1090
Rosemary Holobosky, et al. v. Merck
& Co., 05-1091
Marjorie Connolly, et al. v. Merck & Co., 06-2708
Marilyn Core, et al. v. Merck & Co., 05-2583
Carlo Devincentiis, et al., v. Merck
& Co., 05-2297
Kathleen Hoffner, et al. v. Merck & Co., 06-2238
Robert D. Gates, et al. v. Merck & Co., 05-6221
ORDER & REASONS
Before the Court are certain Plaintiffs’ Motion
for Miscellaneous Relief (Rec. Doc. 14938) and Motion
for a Stay (Rec. Doc. 16803). For the foilowing
reasons, both motions are DENIED.
I. BACKGROUND
On November 9, 2007, the parties announced
the establishment of a Vioxx Resolution Program
that encompasses all claims that allege a_ heart
attack, sudden cardiac death, or stroke.! Also on that
date, the Court entered two pre-trial orders requiring
Plaintiffs to provide certain information to Merck by
certain deadlines. Pre-Trial Order No. 28 (“PTO 28”)
requires. all plaintiffs and tolling agreement
claimants with claims pending as of November 9,
2007, to produce specified information regarding
their claims if they are not eligible for or have not
submitted their claims to the Vioxx Resolution
Program. Under PTO 28, plaintiffs and _ tolling
agreement claimants must provide case-specific
expert reports to Merck by certain dates based on the
first letter of the plaintiffs last name. Plaintiffs
whose last names begin with the letters A through L
were initially required to submit this information by
May 1, 2008, and plaintiffs whose last names begin
For a more detailed factual background
describing the events that took place before the
inception of this Multidistrict Litigation, see Jn re
Vioxx Prods. Liab. Litig., 401 F. Supp. 2d 565 (E.D.
La. 2005) (resolving Daubert challenges to a number
of expert witnesses). For a more detailed factual
background describing the terms of the Vioxx Master
Settlement Agreement and the events that took place
after the parties reached a settlement, see Jn re Vioxx
Prods. Liab. Litig.,. MDL No. 1657, 2008 WL 3285912
(E.D. La. Aug. 7, 2008) (denying third-party payors’
motions to enjoin interim payments).
A-49
with the letters L through Z were initially required to
submit this information by July 1, 2008. Pre-Trial
Order No. 29 imposes similar requirements on
plaintiffs whose claims are filed or transferred to the
MDL after November 9, 2007.
On December 10, 2007, certain plaintiffs (the
“Benjamin Plaintiffs”), all of whom are represented
by attorney Ronald Benjamin, appealed Pre-Trial
Order No. 28 to the United States Court of Appeals
for the Fifth Circuit. The Benjamin Plaintiffs sought
to have the Fifth Circuit vacate the Court’s
requirement that plaintiffs’ counsel produce case-
specific expert reports. On March 28, 2008, the Fifth
Circuit dismissed the Benjamin Plaintiffs’ appeal
without an opinion. See In re Vioxx Prods. Liab. Litig.,
Case No. 07-31164 (5th Cir. March 28, 2008) (per
curlam).
On Apnil 17, 2008, certain other plaintiffs (the
“Oldfather Plaintiffs”) filed a motion to suspend or
modify the requirements of Pre-Trial Order No. 28.
The Oldfather Plaintiffs argued that PTO 28's
requirements were premature as to those plaintiffs
who alleged injuries for which the PSC had not yet
developed general causation expert reports. With
respect to plaintiffs who were eligible for the Vioxx
Settlement Program, the Oldfather Plaintiffs argued
that PTO 28 did not provide sufficient time to
develop expert reports or seek new counsel. In
essence, the Oldfather Plaintiffs contended that PTO
28 “is unfair and unilaterally slanted in favor of
Merck, both in general and specific causation.” See In
re Vioxx Prods. Liab. Litig., 557 F. Supp. 2d 741, 743
(E.D. La. 2008).
On May 30, 2008, the Court issued an Order &
Reasons (the “May 30th Order’) denying in part and
A-50
granting in part the Oldfather Plaintiffs’ motion to
vacate PTO 28. Id. In the Court’s May 30th Order,
the Court explained that PTO 28 “is a type of pre-
trial order commonly known as a Lone Pine order,”
and that “[t]he United States Court of Appeals for
the Fifth Circuit has recognized the value of and
approved the use of Lone Pine orders in mass tort
litigation.” /d. (citing Acuna v. Brown & Root, Inc.,
200 F.3d 335, 340 (5th Cir. 2000) (holding that it is
within a district court’s discretion to issue a Lone
Pine scheduling order that essentially requires the
production of “information that plaintiffs should have
had before filing their claims’)). In lhght of the
advanced stage of the Vioxx htigation, the Court
found that PTO 28 was appropriate and that, after
nearly a decade of discovery, “it is not too much to
ask a Plaintiff to provide some kind of evidence to
support their claim that Vioxx caused them personal
injury, whether the injury be deep vein thrombosis, a
heart attack, an ulcer, or some other malady.” /d.:
)
‘The Court explained that a Lone Pine order
was particularly appropriate given the advanced
stage of the Vioxx litigation, both in the federal MDL
and the state courts:
{IIn the present case, a Lone Pine
order may not have been appropriate
at an earlher stage before any
discovery had taken place since little
was known about the structure,
nature and effect of Vioxx by anyone
other than perhaps the manufacturer
of the drug. But this case is no longer
(cont a)
(cé nt'd from previous page)
in its embryonic stage. It has existed
In state courts for over seven years
and in this Court for over three years,
and much discovery has taken place....
For xearly a decade, Plaintiffs’ counsel
throughout the country have been
studying, exploring, and discovering
all of the effects of Vioxx on the
human body. In this MDL, the PSC
did not selectively discovery only MI’s
or strokes, but rather they conducted
general discovery on the effects Vioxx
may or may not have on individuals.
All of this material is and has been
available to counsel in the individual
Cases.
The Court finds that at this
advanced stage of the litigation, it is
not too much to ask a Plaintiff to
provide some kind of evidence to
support their claim that Vioxx caused
them personal injury, whether that
injury be deep vein thrombosis, a
heart attack, an ulcer, or some other
malady. Surely if Plaintiffs’ counsel
beheve that such claims have merit,
thev must have some basis for that
belief; after al! this time it its
reasonable to require Plaintiffs to
come forward and show some kind of
basic evidence of specific causation.
In re Vioxx Prods. Liab. Litig., 557 F. Supp. 2d at 744
A-52
Accordingly, the Court denied the Oldfather
Plaintiffs’ request to vacate PTO 28. To ensure that
all plaintiffs had a fair opportunity to comply with
the requirements of PTO 28, however, the Court
granted the Oldfather Plaintiffs’ request to extend
the deadlines for providing case-specific expert
reports, allowing that claimants whose last names
begin with the letters A though IL should submit
reports by July 1, 2008, whereas claimants whose
last names begin with the letters M though Z should
submit reports by August 1, 2008
II. PRESENT MOTIONS
On June 30, 2008, the Benjamin Plaintiffs filed
a motion seeking miscellaneous relief, including,
inter alia: (1) the Court’s resignation as Chief
Administrator of the Vioxx Master Settlement
Agreement; (2) an order vacating the Vioxx Master
Settlement Agreement because it is 1n fact a class
settlement subject to the requirements of Rule 23; (3)
an amendment to PTO 28 to allow for alternate forms
of proof or to extend the deadlines for submission of
expert reports; (4) an order lifting the stay of
discovery imposed by PTO 28; and (5) an order
vacating Pre-Trial Order No. 37, which sets forth the
terms of access to the PSC tmal package. The
Benjamin Plaintiffs have also filed a motion to stay
any further orders of dismissal based on PTO 28
pending the Court’s decision on their motion for
miscellaneous relief. Both the Plaintiffs’ Steering
Committee and Merck have filed responses in
opposition to the Benjamin Plaintiffs’ motion. The
Court will now address each of the Benjamin
Plaintiffs’ arguments in turn
A-53
WI. LAW & ANALYSIS
A. Motion for the Court’s Resignation
as Chief Administrator of tie Vioxx
Master Settlement Agreement
First, the Benjamin Plaintiffs seek the Court’s
resignation as Chief Administrator of the Vioxx
Master Settlement Agreement. Accord ng to the
Benjamin Plaintiffs, the Court should resign its role
as Chief Administrator of the Settlement in part
because the Court “is duty bound to exclude from
compensation under the MSA the same injuries that
are being pursued by plaintiffs in MDL 1657, and
will have to rule on the viability of those injuries in
the tort system.” The Benjamin Plaintiffs offer no
meaningful legal basis for their request. To the
extent that the Benjamin Plaintiffs’ motion might be
interpreted as seeking judicial recusal pursuant to 28
U.S.C. § 455, however, the request is without merit.
Title 28, United States Code, Section 455
provides that a judge “shall disqualify himself in any
proceeding in which his” impartiality § might
reasonably be questioned.” 28 U.S.C. § 455. The Fifth
Circuit has explained that recusal under § 455 is
warranted only in those cases in which a “reasonable
man, were he to know all the circumstances, would
harbor doubts about the judge’s impartiality.” /Q
Prods. Co. v. Pennzoil Prods. Co., 305 F.3d 368, 378
(5th Cir. 2002). The facts of the instant case do not
warrant recusal. As Chief Administrator of the Vioxx
Master Settlement Agreement, the Court serves in
an administrative capacity that has no substantive
effect on its management of the MDL proceedings.
A-54
See In re Vioxx Prods. Liab. Litig., MDL No. 1657,
2008 WL 4091672, at *2 (E.D. La. Aug. 27, 2008)
(explaining that the Court “has consistently exercised
its inherent authority over the MDL proceedings in
coordination with its express authority under the
terms of the Settlement Agreement to ensure that
the settlement proceedings move forward in a
uniform and efficient manner’). The Court played no
role in drafting the private settlement agreement
reached by the parties; the Court has taken no
position as to what types of claims should or should
not have been included in the settlement; and, finally,
the Court has consistently stated that it neither
encourages nor discourages participation in the
settlement. Accordingly, the motion for the Court’s
resignation is without merit.
B. Motion to Vacate the Master
Settlement Agreement Pursuant to
Rule 23
Second, the Benjamin Plaintiffs argue that the
Vioxx Master Settlement Agreement should be
vacated because the private, contractual agreement
is in fact a class settlement subject to the
requirements set forth in Rule 23. The Plaintiffs
argue, among other things, that they were not
adequately represented in the settlement discussions
and that the settlement does not protect their
individual interests.
The Benjamin Plaintiffs’ reliance on Rule 23 is
misplaced. This Court has previously denied class
certification of personal injury Vioxx cases. See In re
Vioxx Prods. Liab. Litig., 239 F.R.D. 450, 462-63 (E.D.
La. 2006) (finding that the “number, uniqueness,
singularity, and complexity of the factual scenario
surrounding each case swamp any predominating
issues’). Unlike a class settlement, the MSA is a
private, opt-in settlement that was not secured
through a settlement class vehicle and therefore
poses no risk of binding any unwilling plaintiff to it:
terms. Despite the Benjamin Plaintiffs’ rather
unspectacular argument that plaintiffs’ lead counsel
may not bind the litigants in an MDL to a settlement
agreement, the Benjamin Plaintiffs are unable to
show how in fact they are “bound” by the terms of thi
private, opt-in settlement they seek to vacate
Lacking any support for their argument in legal
precedent, the Benjamin Plaintiffs appear to base
their request more on their own individual desire to
rewrite the terms of the settlement. Accordingly, the
motion to vacate 1s denied
C. Motion to Modify Pre-Trial Order
No. 28 to Allow for Alternate Forms
of Proof or to Extend the Deadlines
for Submission of Expert Reports
Third, the Benjamin Plaintiffs seek an orde:
amending Pre-Trial Order No. 28 to allow fo:
alternate forms of proof or to extend the deadlines fo)
submission of expert reports. The Benjamin Plaintiff
propose two alternate forms of proof in lieu of case
specific expert reports: first, an attorney affirmation
that the plaintiff has an expert who will opine that
the plaintiffs injury was in fact causally related to
Vioxx; or, second, a single affirmation opining a
causal relationship between ingestion of Vioxx and
the plaintiffs’ non-eligible injuries. Alternatively, the
Benjamin Plaintiffs seek an extension of th
deadlines for submission of case-specific expert
reports for Injumes not covered by the MSA The
Benjamin Plaintiffs allege that they were caught by
surprise by PTO 28 because they were under thi
impression thet it was the PSC’s responsibility to
pursue and prepare such information
Although the precise legal basis for the
request is somewhat unclear, the Benjamin Plaintiffs
do claim that their request 1s “injunctive, at least in
part,’ and recite the four requirements for a
preliminary injunction: (1) a substantial lhkelihood of
success on the merits; (2) threat of irreparable injury
if the relief is not granted; (3) injury to the movant
outweighs injury to the non-movant; and (4) granting
relief will serve the public interest. See Enter. Jnt7,
Inc. v. Corporacion Estatal Petrolera Ecuatoriana
162 F.2d 464, 472 (5th Cir. 1985). Nevertheless, it 3
lear that the Plaintiffs do not seek injunctive relief
To the extent that the request might be interpreted
as a motion for injunctive relief, however, the Court
finds that the Plaintiffs have made no showing as to
iny of the four el ley) necessary to ucceed on uch
1reque !
‘Lhe request 1 Imi-arly without merit to the
extent that 1t might be interpreted as a motion fo
reconsideration, “A court's reconsideration of a prior
order 1s an extraordinary remedy which should be
used sparingly.” Motiva knters. LLC v. Wegman, No
00-3096, 2001 WL 246414, at *2 (B.D. La. Mar. 12
2001) Indeed, allowing the _ partie to eek
reconsideration of the Court orders Imply becau e
the parties might individually prefer a different
iad
tor the reasons set forth in the Court's earlher
opinion regarding PTO 28, the Plaintiffs’ argument
rings hollow. See In re Vioxx Prods. Liab. Litig., 557
l’, Supp. 2d at 743. As the Court explained, Lone Pine
orders such as PTO 28 are intended “to handle the
complex issues and potential burdens on defendant:
and courts in mass tort htigation.” Acuna, 200 F.3d
at 340. By requiring plaintiffs to produce case-specifue
expert reports, PTO 28 enables the Court “to identify
and cull potentially meritless claims and streamline
litigation” in this complex MDL. Baker v. Chevron
USA, Inc., Civ. A. No. 05-227, 2007 WL 315346, at *]
(S.D. Ohio Jan. 30, 2007). The Benjamin Plaintiff:
proposal to substitute alternate methods of proof
would undermine the express purposes of the Lon
Pine order. Similarly, the Plaintiffs’ argument that
PTO 28 imposes unduly burdensome requirements 1
imply not credible. As the Court has previously
explained, “after all this time it is reasonable t
require Plaintiffs to come forward and show the ba
for their behefs and show some kind of basic evidencs
of specific causation.” /n re Vioxx Prods. Liab. Litig
57 F. Supp. 2d at % Under scrutiny, the Benjamiu
Plaintiffs motion ( fro} . amount
nmi pre
,
result would rende) ntire niefing
irrelevant and [would] lead to endle is ti
reconsider. /reeport-McMoran Sulphur, LLC v. Mike
Mullen Energy Equip Re: No. 038-1496, 2004 WI
1488665, at *1 (£.D. La. June 30, 2004). According];
to the extent that . njamin Plaintiffs request
n ight be inte rpret¢ 1 me onsiderati
denied
littie more than a thiniv-vejiled motion to vacate the
rder ' According !\ the motion denied
In connection with their request to amend
the terms of PTO 28, the Benjamin Plaintiffs also
seek an order lifting the stay imposed by PTO 28, a
well as an order vacating PTO 37, which sets forth
the terms for access to the PSC’s trial package. A
the PSC makes clear in its response bnef, however
the Benjamin Plaintiffs are free to “inspect and
photocopy at their expense any non-work product
document available in the depository consistent with
this Court's other pretrial orders but without the
obligation imposed by PTO No. 37.” Accordingly, the
request to vacate PIO 37 is dismissed as moot
Similarly, with respect to the Benjamin Plaintiffs’
request to lift the stay imposed by PTO 28, the
Plaintiffs’ request 1s denied. The Court imposed the
tav of discovery for rood reason and will lift the 1\
tan appropriate time
Both the Plaintiffs’ Steering Committee and
Merck contend that Mr Benjamin} merely
employing ne ame failed discovery Lact that
resulted in dismissal of his chents’ cases in the /n re
Diet Drug litigation. See Jn re Lheg Drugs, 30 Fed
\ppx 27, 2002 WL 272351 at *1 (3d Cir. Feb AS
2002). In that htigation, the Third Circuit affirmed
the district court’s dismissal of Mr. Benjamin’s case
after hi repeatedly refused to comply with the
district court's requirement that plaintiffs produce
case-specific expert reports. In affirming dismissal of
the plaintiffs’ cases, the Third Circuit explained that
cont'd from previous page
the dismissal was warranted given Mr. Ben
litany of discovery abuses
Suffice it to say, appellants hav
been the victim of some bad lawyering
by their trial counsel, Ronald R
Benjamin. Indeed, Benjamin’s discovery
abuses can be summarized as a parade
of obstinance that ultimately cost his
chents their day in court. The origin
Benjamin’s discovery mischief dates
back to October 18, 1999, when cass
specific expert designations were due
Benjamin failed to honor this deadline
Instead, he objected to the need for
disclosure before the District Court
ruled on a related Daubert motion
citing the cost of obtaining expert
reports.
It is not necessary to burden this
Opinion with a recounting of each and
every subsequent instance of Benjamin’s
obstinance. In_ short, counsel had
numerous opportunities to comply with
the District Court’s longstanding
discovery order, yet stubbornly clung to
his argument that he should not have to
designate experts. Neither multiple
express rejections of this. already
rejected argument, nor threats of
dismissal ameliorated counsel's defianc:
to the discovery scheduls
IV. CONCLUSION
For the reasons stated above, the Benjamu.
Plaintiffs’ Motion for Miscellaneous Relief (Rec. Doc.
14938) and Motion for a Stay (Rec. Doc. 16803) ARE
DENIED.
NI ax .} OY 13 IO YF thn 1 [ A
New Orleans, Loursiana. this U Q Cl
December. 2008.
UNITED STATES DiSTRICT JU
A
248
On August 24, 2000, more than
€
he Special Discovery Master gave
3enjamin yet another chance to do what
1e had, over many months, been ordered
to do. Benjamin failed to seize this
opportunity and the Special Master
recommended dismissal as a sanction
In re Diet Drugs, 30 Fed. Appx. 27, 2002 WL 272351
at *1 (3d Cir. Feb. 26, 2002).
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