In RE: Abilify (ARIPIPRAZOLE) Products Liability Litigation

Northern District of Florida, flnd-3:2016-md-02734

MOTION for Order to Show Cause Regarding Plaintiffs with Missing Plaintiff Profile Forms and/or Supplemental Plaintiff Profile Forms by BRISTOL-MYERS SQUIBB COMPANY, OTSUKA AMERICA PHARMACEUTICAL INC, OTSUKA PHARMACEUTICAL CO LTD.

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION IN RE: ABILIFY (ARIPIPRAZOLE) Case No. 3:16-md-2734 PRODUCTS LIABILITY LITIGATION This Document Relates to All Cases Judge M. Casey Rodgers Magistrate Judge Gary Jones DEFENDANTS' MOTION FOR ENTRY OF ORDER TO SHOW CAUSE REGARDING PLAINTIFFS WITH MISSING PLAINTIFF PROFILE FORMS AND/OR SUPPLEMENTAL PLAINTIFF PROFILE FORMS As of this date, 272 Plaintiffs in this Multidistrict Litigation have yet to submit Plaintiff Profile Forms ("PPFs") and supplemental Plaintiff Profile Forms ("supple- mental PPFs"). Another 283 Plaintiffs have failed to submit one or the other of these forms. Collectively, these Plaintiffs represent 20% of this MDL. As this Court has noted, Plaintiffs' failure to timely submit this information impairs the advancement of this litigation. ECF 901 at 1. Accordingly, Defendants respectfully request that this Court enter an Order to Show Cause why these Plaintiffs' claims should not be dismissed with prejudice. At the outset of this MDL, the parties agreed to a PPF requiring Plaintiffs to identify, among other things, their dates of Abilify use, their dosage(s), whether they had any preexisting compulsive behaviors, which compulsive behaviors they claim were caused by their ingestion of Abilify, the temporal relationship between those behaviors and their Abilify use (e.g., dechallenge and rechallenge) and their claimed gambling losses and any other losses or injuries. Last summer, "[t]he parties deter- mined that additional information [was] needed from individual plaintiffs, beyond that provided in the initial Profile Forms." ECF 901 at 2. The supplemental PPF this Court adopted requires Plaintiffs to provide supporting information and docu- mentation concerning proof of use, proof of injury and proof of loss. ECF 986. Under the Stipulated Order Establishing Case Management Schedule—jointly proposed by the Parties—PPFs are due "within 30 days of filing for any newly-filed cases" (or by May 7, 2017, for any Plaintiff who was part of the MDL as of March 23, 2017). ECF 273 at 3. The Court ordered that Plaintiffs must submit supple- mental PPFs by the later of November 30, 2018 or "within 60 days after the date the case is first docketed in this district." ECF 993 at 1. Given the importance of these profile forms, the Court has warned Plaintiffs that failure to comply with these requirements "will result in sanctions, up to and including dismissal of a case." ECF 901 at 2; see also ECF 986 at 2 ("Failure to timely submit a completed Supplemental PPF will result in sanctions, up to and in- cluding dismissal of a case."). The Court also asked the parties to establish a defi- ciency process to identify Plaintiffs who fail to comply. Under the parties' agreed- to process, once Defendants give notice of a Plaintiff's failure to file a PPF or sup- plemental PPF, that Plaintiff has 14 days to cure any deficiency. ECF 1042 at 9. 2 On December 7, 2018, Defendants notified Plaintiffs' counsel that PPFs or supplemental PPFs for 247 Plaintiffs were completely blank in the BrownGreer da- tabase. See, e.g., Ex. A. Then, on December 21, 2018, Defendants notified Plain- tiffs' counsel that another 613 Plaintiffs had failed to timely submit either a PPF or a supplemental PPF. See Exs. B, C & D. Since then, BrownGreer has resolved a technical issue for 182 Plaintiffs that caused their profile forms to appear blank in the database, another 122 Plaintiffs have submitted missing profile forms, and 6 Plaintiffs have or are in the process of voluntarily dismissing their claims. But 555 Plaintiffs still have not submitted the required form(s), including 272 Plaintiffs who have submitted neither a PPF nor a supplemental PPF. The vast majority of these Plaintiffs' claims have been pending for at least five months, and over 30 Plaintiffs filed suit more than a year ago. Given this widespread disregard of the Court's deadlines, Defendants respect- fully request that this Court enter an Order to Show Cause for any plaintiff that fails to comply with the Court's directive. Exhibit E to this Motion identifies those 272 Plaintiffs who have failed to file both a PPF and a supplemental PPF as of this date. Exhibit F to this Motion identifies those 146 Plaintiffs who have failed to file a PPF as of this date. Exhibit G to this Motion identifies those 137 Plaintiffs who have failed to file, or submitted blank, supplemental PPFs as of this date. 3 Respectfully submitted, /s/ Matthew A. Campbell Matthew A. Campbell (pro hac vice) Matthew M. Saxon (pro hac vice) Rand K. Brothers (pro hac vice) WINSTON & STRAWN LLP 1700 K Street, N.W. Washington, DC 20006 Phone: 202.282.5848 Fax: 202.282.5100 Luke A. Connelly (pro hac vice) WINSTON & STRAWN LLP 200 Park Avenue New York, NY 10166 Phone: 212.294.6882 Fax: 212.294.4700 Hal K. Litchford (Fla. Bar No. 272485) Kelly Overstreet Johnson (Fla. Bar No. 0354163) BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC 101 N. Monroe Street, Suite 925 Tallahassee, FL 32301 Phone: 850.425.7500 Fax: 850.270.6661 Attorneys for Defendants Otsuka Pharmaceutical Co., Ltd. and Otsuka America Pharmaceutical, Inc. 4 Larry Hill (Florida Bar No. 173908) Charles F. Beall, Jr. (Florida Bar No. 66494) Kimberly S. Sullivan (Florida Bar No. 101408) MOORE, HILL & WESTMORELAND, P.A. 350 West Cedar Street Maritime Place, Suite 100 Pensacola, FL 32502 Phone: 850.434.3541 Lauren Colton (pro hac vice) HOGAN LOVELLS US LLP 100 International Drive, Suite 200 Baltimore, Maryland 21202 Phone: 410.659.2700 Anand Agneshwar (pro hac vice) ARNOLD & PORTER KAYE SCHOLER LLP 250 West 55th Street New York, NY 10019 Phone: 212.836.8000 Matthew A. Eisenstein (pro hac vice) Paige H. Sharpe (pro hac vice) ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave, NW Washington, DC 20001 Phone: 202.942.6606 Attorneys for Defendant Bristol-Myers Squibb Company 5 CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(B) Counsel for Defendants have notified Plaintiffs of these deficiencies in writ- ing prior to the filing of the present motion. Defendants are complying with the deadlines set forth in the Court's Order Regarding Deficiency Process for Plaintiff Fact Sheets, Records Authorizations, Plaintiff Profile Forms and Supplemental Plaintiff Profile Forms (ECF 1042). CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(F) I hereby certify that this motion complies with the word limit of Local Rule 7.1(F) and the memorandum contains 659 words, excluding the parts exempted by that Rule. CERTIFICATE OF SERVICE I hereby certify this 16th day of January, 2019, a true and correct copy of the foregoing was filed electronically via the Court's CM/ECF system, which will auto- matically serve notice of this filing via e-mail notification to all registered counsel of record. /s/ Matthew A. Campbell Matthew A. Campbell 6