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Last Tuesday, the 23rd of February, counsel for Plaintiffs and GlaxoSmithKline met before the Honorable F. Dennis Saylor IV for another status conference in the on-going Zofran litigation. Saylor presides over more than 200 birth defect lawsuits, filed against GlaxoSmithKline, currently consolidated in Boston.

While concrete details from the conference have yet to be made public, the US District Court of Massachusetts released a quick summary of developments shortly after the meeting took place.

Review Of State & Federal Filings

According to notes (screenshot captured March 1, 2016) maintained by the Court’s clerk, Saylor was updated on the current number of lawsuits filed in both federal and state courts. Records published on the Public Access to Court Electronic Records (PACER) database indicate 232 individual cases “associated” with the Multi-District Litigation, but that number would not include lawsuits filed in state or federal courts that have yet to be transferred to Massachusetts.

Plaintiffs Have Week To Weigh In On Product Identification

The Court also heard an “initial update” on GlaxoSmithKline’s motion requesting product identification. If granted, an order for product identification would require Plaintiffs to state up-front whether they were prescribed GlaxoSmithKline’s brand name Zofran or a generic equivalent. We wrote extensively on this issue in a post last week. Court records say Plaintiffs have until March 8, 2016 to file a response to GlaxoSmithKline’s proposal.

Master Pleadings

In the conference, Saylor nailed down preliminary due dates for “the sequence and effect of master pleadings.” Generally, “master pleadings” are documents prepared for efficiency’s sake, effectively distilling the allegations made by numerous lawsuits into a single document. Defendants usually work up a master response, as well, a single document answering the allegations set forth in a master complaint.

Where Plaintiffs are concerned, a “master complaint” is unlikely to override, or replace, families’ individual lawsuits. Courts have routinely held that “master pleadings” serve an administrative role. Rather than canceling out the crucial details that separate different Plaintiffs from one another, a master complaint would simply gather together major factual claims in one place.

At this point, the Court has not requested that Plaintiffs finalize a master complaint. Instead, it’s asked Plaintiffs to draft a proposal schedule for the filing of master pleadings, and outline how these documents will be treated in the litigation. Plaintiffs have until March 11, 2016 to file their proposal. GlaxoSmithKline has until March 25 to respond.

Fact Sheets

The Court also “reviewed the status of discovery progress on the formulation of fact sheets.” Fact sheets, created for both Plaintiffs and Defendants and very common in Multi-District Litigation, serve to streamline preliminary fact collection. These standardized forms allow both parties, along with the court, to gather information about specific lawsuits, without filing formal interrogatories against each party individually.

Fact sheets are a matter of negotiation, often because the information gathered runs the risk of entering the public domain. To mitigate that risk, some parties request a “protective order of confidentiality,” which would bind both parties from making certain facts public. GlaxoSmithKline has requested a protective order already, and court records suggest that the status of this request was considered in the conference.

Judge Saylor has given Plaintiffs and GlaxoSmithKline two deadlines for the development of fact sheets. If negotiations are successful, proposals for the fact sheets will be submitted by March 18, 2016. If the parties can’t reach an agreement, Plaintiffs will have to submit their own proposals on March 18, and GlaxoSmithKline has until April 1 to respond.

To learn more about how fact sheets work, visit

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