Case 9:20-md-02924-RLR Document 5348 Entered on FLSD Docket 02/28/2022 Page 1 of 10
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`IN RE: ZANTAC (RANITIDINE)
`PRODUCTS LIABILITY
`LITIGATION
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`_______________________________/
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`THIS DOCUMENT RELATES TO: ALL CASES
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`MDL NO. 2924
`20-MD-2924
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`JUDGE ROBIN L. ROSENBERG
`MAGISTRATE JUDGE BRUCE E. REINHART
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`PRETRIAL ORDER # 72
`Order Requiring Finalization of Registry Information and Certain Short-Form Complaints
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`Near the inception of this MDL, on April 20, 2020, the Court entered Pretrial Order # 15.
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`At that time, the parties were exploring the possibility that potential plaintiffs (“Claimants”) could
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`preserve their claims without necessarily filing a case in court. DE 547. Each side stood to benefit
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`from such an arrangement. For the Claimants, such an arrangement meant that they need not
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`immediately pay a filing fee and prosecute their case—they could wait to do so until a later stage
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`of the litigation. See id. This benefited the Defendants insofar as the Defendants had fewer filed
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`cases to defend against and, relatedly, fewer jurisdictions in which to do so. See id. And one
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`important benefit for all parties—Plaintiffs, Claimants, and Defendants—was that the
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`consolidation and preservation of the Claimants’ claims in a central registry would allow for data
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`to be accumulated about the Plaintiffs and the Claimants: the nature of their alleged injuries and a
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`summary of the individual characteristics of the various Plaintiffs and Claimants such as age,
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`location, duration of product use, etc. See id. This data was thought to be useful by all parties for
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`the purposes of bellwether trial selection and potential future settlement discussions, and the Court
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`therefore concluded that a registry would “assist in overall effective case management and the
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`orderly and efficient progression of this proceeding.” Id. at 1.
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`Case 9:20-md-02924-RLR Document 5348 Entered on FLSD Docket 02/28/2022 Page 2 of 10
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`Now, almost two years after the inception of this MDL, the time has come for the data in
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`the Registry to be finalized; the pleadings have closed, the Plaintiffs’ Leadership has designated
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`the specific cancers it will pursue, the parties have begun the process of preparing Daubert
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`challenges on the issue of general causation, and the bellwether trial selection process has begun.
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`For this MDL to proceed in an orderly fashion, both the parties and the Court need to know with
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`some degree of certainty who the Claimants are, what claims they intend to file, and where the
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`Claimants will file their claims. The Court intends to obtain this certainty by setting a date
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`whereupon the information in the Registry, as inputted by Claimants, will become final.1 The
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`Court has the power to require this finality because each Claimant agreed to be bound to the terms
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`of this Court’s Pretrial Orders and further agreed and consented to the authority of this Court to
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`issue additional Pretrial Orders that govern them as Claimants. DE 1408 at 32. Consistent with
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`that grant of authority, the Court hereby ORDERS as follows:
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`Finalization of the Claimants’ Intended Forum
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`1.
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`All Brand Defendants shall provide to Litigation Management, Inc. (“LMI”) and
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`Plaintiffs’ Co-Lead Counsel all applicable state(s) of citizenship for purposes of diversity analysis
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`within ten (10) days of the entry of this Order. Brand Defendants shall also provide the following
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`information: all specific finished dose formulations of Brand name Zantac manufactured,
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`packaged, or sold, and dates of manufacture, package, or sale of each finished dose Zantac
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`formulation. This shall be provided in a form directed by the Special Master in consultation with
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`LMI, with copies to Adam Pulaski and Tracy Finken, no later than thirty (30) days from the entry
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`of this Order.
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`1 Pretrial Order # 15 is not modified or amended with the exception of the provisions set forth therein at page 15,
`paragraph 5 [DE 547]. This Order supersedes paragraph 5 on page 15 of Pretrial Order # 15.
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`2
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`Case 9:20-md-02924-RLR Document 5348 Entered on FLSD Docket 02/28/2022 Page 3 of 10
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`2.
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`Within two (2) days of the entry of this Order, LMI will provide to each Generic
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`Defendant the information in the current Census Registry database being used for defense mapping
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`that was provided pursuant to Pretrial Order # 50 and citizenship information that has been
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`provided to LMI. Any Generic Defendant that consents to provide any necessary update or
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`correction to such information within thirty (30) days will have no further obligations to provide
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`any information to LMI.
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`3.
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`LMI shall add a certification box to the Registry interface as soon as reasonably
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`possible and as directed by the Special Master. The purpose of the checkbox is for a Claimant
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`who has registered or a Plaintiff who has filed in this MDL (collectively, the “Registry
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`Participants”) to certify his or her forum of choice. If a Registry Participant does not intend to file
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`his or her claim in federal court, the Registry Participant shall not check the box. If the Registry
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`Participant commits to file his or her claim in federal court (although no Registry Participant is
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`ever required to file suit) then the Registry Participant shall check the box and publish said
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`response to Defendants by no later than June 30, 2022.2 In checking the certification box, a
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`Registry Participant also certifies that federal court jurisdiction exists over his or her claims. As a
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`result of the Registry Participant’s certification that federal jurisdiction exists over the Registry
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`Participant’s claims, the Registry Participant must not name a defendant with the same state of
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`citizenship as the Registry Participant as discussed more fully below in paragraph 5.3 The Registry
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`Participants who certify that they will file their lawsuits in federal court will be deemed “Certified
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`Federal Participants.” Within a reasonable time after June 30, 2022, LMI shall provide a report to
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`the Court, Special Master, and all Co-Lead Counsel indicating the total number of Registry
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`2 The Court recognizes that the phrase “Registry Participants” includes Plaintiffs who already have filed cases in this
`MDL and therefore already have committed to file a claim in federal court. Nevertheless, such Plaintiffs shall check
`the certification box.
`3 Unless the Certified Federal Participant has a basis for federal jurisdiction other than diversity jurisdiction.
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`3
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`Participants, the total number of Registry Participants who allege a Designated Cancer (as defined
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`below), and the number of Certified Federal Participants.
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`4.
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`This Order is not intended to alter any negotiations that the parties have reached
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`regarding tolling or the right of any Defendant to terminate tolling pursuant to Pretrial Order # 15.
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`Such negotiations, and any agreements reached, regarding tolling are between the parties and are
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`not the subject of this Order. Such negotiation and agreements are not subject to enforcement by
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`the Court unless (i) the parties to the agreement consent to the Court’s enforcement of the
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`agreement, and (ii) the Court approves of the parties’ consent.
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`Finalization of the Claimants’ and Plaintiffs’ Claims in the Registry
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`5.
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`Every Registry Participant with a Designated Cancer and every Certified Federal
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`Participant with a Non-Designated Cancer must update answers to question 13 of his or her Census
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`Plus Form that he or she previously submitted pursuant to Pretrial Order # 15 (“CPF”), which shall
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`reflect any and all Brand Defendants,4 Generic Defendants, Retailer Defendants or others against
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`whom the Certified Federal Participant anticipates filing or intends to file a lawsuit regarding
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`Zantac or any generic equivalent ranitidine product (if any lawsuit is ever filed) (“Anticipated
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`Defendant”). Because each Certified Federal Participant has certified that he or she intends to file
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`in federal court (if he or she elects to file a lawsuit), none of the Anticipated Defendants may have
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`the same citizenship as the Certified Federal Participant.5 No later than June 30, 2022, these
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`answers regarding Anticipated Defendants will be published to the Defendants and become final.
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`Subsequent to June 30, 2022, Certified Federal Participants will be estopped from seeking to alter
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`the Anticipated Defendants and will be estopped from opposing the dismissal of a non-Anticipated
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`Defendant from any proceeding in any tribunal. Notwithstanding anything in this Order to the
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`4 Brand Defendants refers to GSK, Pfizer, Boehringer Ingelheim, Sanofi, Patheon, and Chattem.
`5 Unless the Certified Federal Participant has a basis for federal jurisdiction other than diversity jurisdiction.
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`4
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`contrary, Certified Federal Participants who entered the Registry on or before February 28, 2022,
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`will be estopped from amending an answer regarding an Anticipated Defendant, unless the
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`Certified Federal Participant can provide: (1) a medical record, pharmacy record, loyalty record,
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`or purchase receipt that supports the change(s), provided that the applicable record supporting such
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`change(s) is ordered on or before May 15, 2022 but not received by June 24, 2022; (2) a record
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`ordered by counsel prior to May 15, 2022 that the party to whom the request was submitted failed
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`to produce to him or her despite reasonable follow up prior to June 24, 2022; (3) a record ordered
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`prior to May 15, 2022 that, upon receipt and review, requires the Certified Federal Participant’s
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`counsel to order other records, so long as such additional records are ordered within forty-five (45)
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`days of receipt of the prior record; or (4) any other reason that the Court deems fair and equitable.
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`Additionally, notwithstanding anything in this Order to the contrary, a Certified Federal Participant
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`who enters the Registry on or after March 1, 2022, may amend an answer regarding an Anticipated
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`Defendant if the Certified Federal Participant can provide: (1) a medical record, pharmacy record,
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`loyalty record, or purchase receipt that supports the change(s), provided that the applicable record
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`supporting such change(s) is ordered on or before ninety (90) days after entering the Registry; (2) a
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`record ordered on or before ninety (90) days after entering the Registry that, upon receipt and
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`review, requires the Certified Federal Participant’s counsel to order other records, so long as such
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`additional records are ordered within forty-five (45) days of receipt of the prior record; or (3) any
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`other reason that the Court deems fair and equitable.6
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`6.
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`By participating in the certification process described in this Order, a Certified
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`Federal Participant agrees that (i) he or she is estopped from filing a lawsuit concerning Zantac or
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`any generic equivalent ranitidine product in a state court, unless any of the exceptions in
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`6 This Order shall not preclude the parties from reaching a contrary agreement concerning estoppel.
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`5
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`paragraphs 5 or 10 for changing Anticipated Defendants apply; and (ii) if he or she files a lawsuit
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`concerning Zantac or any generic equivalent ranitidine product in a state court, such Certified
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`Federal Participant will not oppose removal of the action to federal court and subsequent transfer
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`of the action to this MDL, so that this Court will decide any dispute about whether the Certified
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`Federal Participant is obligated to file his or her action only in federal court.
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`7.
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`Some of the Registry Participants are Plaintiffs in this MDL who have filed
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`Short-Form Complaints that name Defendants. The Defendants named in a Plaintiff’s Short-Form
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`Complaint must be identical to the Anticipated Defendants listed on a Plaintiff’s CPF.
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`Accordingly, if a Plaintiff alters his or her Anticipated Defendants in the Registry, the Plaintiff
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`shall also amend his or her Short-Form Complaint. Further, each Plaintiff shall also ensure that,
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`as of June 30, 2022, the Defendants named in her or her Short-Form Complaint are identical to the
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`Anticipated Defendants.
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`8.
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`Any attorney representing a Registry Participant (“Registry Counsel”) shall notify
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`LMI within fourteen (14) days of any change in representation status of any Registry Participant.
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`9.
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`Registry Counsel shall also ensure that question 19 of the CPF accurately reflects
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`the current state of residence of any Registry Participant, or state of residence at the time of death
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`for decedents. Registry Counsel, upon notice of a Registry Participant’s death, shall promptly
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`update questions 27 and 28 of the CPF, and ensure that, if notified of such occurrence prior to June
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`15, 2022, the CPF is updated by that date.
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`10.
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`In the event any Defendant does not provide accurate information to LMI pursuant
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`to paragraphs 1 or 2 of this Order or an error occurs by LMI in data mapping, and such inaccuracy
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`impacts whether a Registry Participant has diversity of citizenship with all Anticipated Defendants
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`listed in his or her CPF as outlined in paragraph 5, then within fourteen (14) days after the Registry
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`6
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`Participant or his/her counsel becomes aware of the accurate information, the Registry Participant
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`may amend his/her CPF and/or any certification he or she provided pursuant to paragraphs 3 and
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`5 – such amendment shall be limited to the scope of the new information only. In the event any
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`Defendant does not provide accurate information to LMI pursuant to paragraphs 1 or 2 of this
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`Order or an error occurs by LMI in data mapping, and such inaccuracy impacts whether a Registry
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`Participant could identify additional Anticipated Defendants, but naming those additional
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`Anticipated Defendants would not impact whether the Registry Participant has diversity of
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`citizenship with all such Anticipated Defendants, then within fourteen (14) days after the Registry
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`Participant or his/her counsel becomes aware of the accurate information, the Registry Participant
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`may amend his/her answer to question 13 of his/her CPF – such amendment shall be limited to the
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`scope of the new information only – but may not amend any certification he/she provided pursuant
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`to paragraphs 3 and 5.
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`Finalization of Claimants’ and Plaintiffs’ Alleged Injuries Involving Non-Designated Cancers
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`On January 25, 2022, Plaintiffs’ Leadership Counsel filed a disclosure identifying
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`11.
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`the types of cancer for which they have provided general causation reports in this MDL (the
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`“Designated Cancers”). DE 5147. Other cancers besides the Designated Cancers and other
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`injuries are alleged in various Plaintiffs’ Short-Form Complaints and by Claimants in the Registry
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`(the “Non-Designated Cancers”). Because Plaintiffs’ Leadership Counsel has elected not pursue
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`the Non-Designated Cancers, the Court must act to determine (i) how many Certified Federal
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`Participants wish to pursue the Non-Designated Cancers in this MDL; (ii) what, precisely, the
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`Non-Designated Cancers are; and (iii) how, if at all, the Court will adjudicate the Non-Designated
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`Cancers in this MDL.
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`7
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`12.
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`To that end, all Registry Participants with a Designated Cancer shall update their
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`alleged injury in question D(4) of the CPF by June 30, 2022; after this date, changes may only be
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`made for newly diagnosed cancers or injuries or based upon contemporaneous medical records
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`showing a different cancer. In addition, the Court has decided that all Certified Federal
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`Participants who allege a Non-Designated Cancer7 shall file a Short Form Complaint using the
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`process in Amended Pretrial Order # 31, if he or she has not already done so, by no later than June
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`30, 2022. See DE 1496. In the event a Certified Federal Participant who alleges a Non-Designated
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`Cancer in the Registry does not file a Short Form Complaint consistent with this Order, the Court
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`may remove the Certified Federal Participant from the Registry, consistent with the process set
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`forth in Pretrial Order # 15.
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`13.
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`Any Plaintiff who previously filed a Short Form Complaint claiming a
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`Non-Designated Cancer or injury, but who no longer wishes to pursue claims for the
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`Non-Designated Cancer or injury, shall so indicate by amending his or her Short-Form Complaint
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`by June 30, 2022. Alternatively, should a Plaintiff seek to dismiss his or her case because he or
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`she is pursuing a Non-Designated Cancer, the Answers to the Second Amended Master Personal
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`Injury Complaint [DE 4101, 4102, 4103, 4105, and 4205] will constitute answers that preclude a
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`Plaintiff from unilaterally dismissing his or her case under Federal Rule of Civil Procedure
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`7 This filing deadline applies to Plaintiffs and Claimants wishing to pursue claims only for Non-Designated Cancers
`or injuries, as well as to Plaintiffs and Claimants wishing to pursue claims for both Designated Cancers and
`Non-Designated Cancers or injuries, within the same complaint. There are a number of Plaintiffs and Claimants who
`have indicated that they have multiple cancers or injuries; many of these appear to allege that Zantac use caused a
`particular cancer, which cancer then led to other cancers or injuries resulting from the initial cancer. To the extent
`that the Plaintiff/Claimant alleges that Zantac caused a Designated Cancer, which then metastasized and he/she was
`then diagnosed with a Non-Designated Cancer – or developed another injury due to the original Designated Cancer –
`the Plaintiff/Claimant is pursuing a claim that Zantac caused a Designated Cancer and thus is not subject to paragraph
`12 of this Order. In contrast, if the Plaintiff/Claimant alleges that Zantac caused a Non-Designated Cancer, which
`then metastasized into a Designated Cancer, then the Plaintiff/ Claimant is pursuing a Non-Designated Cancer and
`thus is subject to paragraph 12 of this Order.
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`8
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`41(a)(1)(A)(i). Any Plaintiff who wishes to voluntarily dismiss his or her case shall comply with
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`Federal Rule of Civil Procedure 41(a)(1)(A)(ii) or (a)(2).
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`14.
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`Subsequent to June 30, 2022, the Court intends to evaluate the number of filed cases
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`pursuing claims for Non-Designated Cancers and injuries, as well as the types of cancers and
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`injuries being alleged, to determine the best course of action for these cases. At a future time, the
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`Court may enter additional orders and establish deadlines and procedures for the Plaintiffs raising
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`personal injury claims for cancers and injuries other than the Designated Cancers, including setting
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`expedited expert discovery and Daubert deadlines for these cases.
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`15.
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`The Special Master will direct LMI to provide by March 15, 2022, and subsequently
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`at the Special Master’s discretion, an interim report to Plaintiffs’ and Defendants’ Co-Lead
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`Counsel listing the Plaintiffs and Claimants alleging Non-Designated Cancers. Such report shall
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`contain the LMI ID number, alleged cancer or other injury, counsel of record, and any other
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`information that the Special Master deems useful to the parties. To facilitate the accuracy of this
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`report, all Registry Counsel are directed to notify LMI within fourteen (14) days of any change in
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`representation of any personal injury Plaintiff or Claimant.
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`Resolution of Disputes or Lack of Clarity Pertaining to this Pretrial Order
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`16.
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`By participating in this certification process, a Certified Federal Participant agrees
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`that all disputes about the Certified Federal Participant’s compliance with this Court’s Pretrial
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`Orders will be decided by this Court.
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`17.
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`Any Registry Participant, Registry Counsel, or Defendant who seeks any
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`clarification or reconsideration of this Order must file a motion for leave8 to file a motion seeking
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`such relief within twenty-one (21) days of the date this Order is entered. Any Registry Participant
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`8 See Pretrial Order # 24, section 10.
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`9
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`who does not agree to be bound by the terms of this Order must exit the Registry within twenty-one
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`(21) days of the date this Order is entered, by notifying Registry Coordinating Counsel (Adam
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`Pulaski and Joe Petrosinelli) and the Special Master. LMI shall maintain the exit date of
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`individuals that exit the Registry pursuant to this paragraph, as well as those that exit due to
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`deficiencies or termination of tolling. In such circumstances, all data shall be preserved, and
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`Counsel and the Special Master shall continue to have the same access to the CPF, data, and/or
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`analytics, as when the Registry Participant was in the Registry.
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`18.
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`The Court understands that pro se litigants are not provided with access to LMI’s
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`database as a matter of course. To the extent that a pro se Claimant or Plaintiff has an obligation
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`to update his/her CPF pursuant to this Order, the pro se individual is directed to email LMI at
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`zanclaimants@lmiweb.com with his/her name, the name of the Zantac user (if different) and
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`applicable LMI ID number (or docket number, if the individual is a Filed Plaintiff and does not
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`have an LMI ID number). The Special Master shall, with consent of Registry Coordinating
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`Counsel, address in her discretion the data needs of pro se litigants together with any other data
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`collection or technology issues that may arise in the implementation of this Order.
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`DONE and ORDERED in Chambers, West Palm Beach, Florida, this 28th day of
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`February, 2022.
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`_______________________________________
`ROBIN L. ROSENBERG
`UNITED STATES DISTRICT JUDGE
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