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IN RE PREMPRO PRODUCTS LIABILITY LITIGATION
October 17, 2005.
IN RE: PREMPRO PRODUCTS LIABILITY LITIGATION.
The opinion of the court was delivered by: Wm. WILSON Jr., District Judge
PRACTICE AND PROCEDURE ORDER 8
This Order is necessary to establish a uniform procedure to
address product identification and dismissal of Defendants who
are not specifically identified in either the complaint or the
plaintiff's fact sheet.
Numerous complaints in this litigation have broad boilerplate
language which names every pharmaceutical company that ever
manufactured an HRT drug. However, in many cases, the complaints
fail to allege that the plaintiff took a drug manufactured by a
specific defendant. Instead, the complaints simply state that the
plaintiff took an HRT drug or that she took drugs "including but
not limited to" certain drugs, and then lists drugs manufactured
by only a few of the named defendants. Although these types of
pleadings may meet the bare requirements of Rule 8 of the Federal
Rules of Civil Procedure, at some point in the litigation the
plaintiffs must do more.
In addition to failing to identify products in the complaints,
Plaintiffs also often fail to make specific defendant product
identifications in their fact sheets. This won't get it done. At
what point is each plaintiff going to commence the discovery
required to identify which defendants may be liable in her case?
Since these are product liability claims with multiple defendants, product identification is essential for the movement
of the case. It is not enough for a plaintiff to make general
allegations in a complaint and then rest on those allegations;
the plaintiffs have an obligation to conduct discovery and
pinpoint their allegations on specific defendants and specific
products.*fn1 And, of course, FRCP 11(b)(3) requires that
the allegations in pleadings "have evidentiary support or, if
specifically so identified, are likely to have evidentiary
support after a reasonable opportunity for further investigation
The parties have repeatedly filed joint motions to dismiss,
notices of dismissal, or voluntary dismissals to clean up these
complaints. Having granted nearly one thousand of these piecemeal
dismissals, I have determined that this process quite
inefficient. Accordingly, in an effort to move these cases, the
following will be followed:
PPO 8 applies to cases where the plaintiff does not
make a specific allegation in the complaint that she
consumed a defendant's drug those cases where the
plaintiff lists an array of manufacturers but makes
no specific allegations against any particular
defendant*fn3 and/or*fn4 does not list
the defendant or the defendant's drug on her fact
sheet. Defendants must identify and inform Plaintiffs of
cases that are affected by PPO 8.
In each identified case, the defendants should
jointly submit a list of all defendants in the
specific case who are seeking dismissal under PPO 8.
If the parties cannot agree to a joint dismissal
within forty-five (45) days of the submitted list,
the defendants may jointly file a motion to dismiss
without prejudice for 180 days. All defendants
seeking to be dismissed under PPO 8 should join the
motion there should only be one motion per
plaintiff and all interested defendants should join
in the motion; if at all possible, there should only
be one motion per case.
The plaintiff has 180 days from the date of the
dismissal order to file a motion to amend her
complaint to reassert claims against the defendant(s)
dismissed under PPO 8. The motion must be
accompanied by either (a) a signed consent to the
amendment by the dismissed defendant(s), or (b) a
demonstration of evidentiary support and legal basis
to assert claims against the defendant(s).*fn5
All defenses to which the dismissed defendant was
entitled as of the effective date of the original
complaint are preserved.
Defendants who seek dismissal under PPO 8 must
agree that they will not assert any statute of
limitations defenses based solely on the passage of
time between the effective date of the original
complaint against the dismissed defendant and ...
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