In re: Acetaminophen - ASD-ADHD Products Liability Litigation

Filing 17

ORDER: A conference in In Re: Acetaminophen - ASD-ADHD Products Liability Litigation was held on November 17, 2022. It is hereby ORDERED that by November 30, 2022, plaintiffs' counsel and defense counsel shall meet and confer regarding the Draft Direct Filing Order, attached hereto, and submit a proposed direct filing order, which shall include any alternative language to which the parties cannot agree, and letters describing any disputes. (Signed by Judge Denise L. Cote on 11/18/2022) (Attachments: # 1 Exhibit 1) (vfr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
IN RE: Acetaminophen – ASD-ADHD :
Products Liability Litigation
:
:
--------------------------------- X

22md3043 (DLC)
22mc3043 (DLC)
DRAFT ORDER:
DIRECT FILING

On November 16, 2022, the parties submitted proposed orders
governing the direct filing of actions in In re Acetaminophen –
ASD/ADHD Products Liability Litigation, 22md3043 (“MDL”), in the
Southern District of New York.

For the reasons stated on the

record at a November 17 conference with the parties, it is
hereby
ORDERED:
I.
1.

SCOPE OF THE ORDER

This Order applies only to personal injury claims

brought by United States residents and filed directly in the
MDL.
II.
2.

DIRECT FILING OF CASES INTO THE MDL

To eliminate delays associated with the transfer to

this Court of cases filed in or removed to other federal
district courts and to promote judicial efficiency, any
plaintiff(s) whose case would be subject to transfer to this MDL
may directly file his or her complaint against any or all
Defendants in the United States District Court for the Southern

District of New York as related to the MDL.
3.

Any complaint that is filed directly in the Southern

District of New York pursuant to this Order shall be deemed
directly filed in the MDL and filed as a new civil action in the
Court’s electronic filing system.

At the time of filing, the

complaint shall bear the caption set forth in Paragraph 4(c) of
this Order and be accompanied by a civil cover sheet and
summons.

The civil cover sheet shall be completed in accordance

with the instructions set forth therein.

The filing party shall

use the origin code 8 on the civil cover sheet.

The Clerk of

Court is directed to assign the action to the MDL Judge’s
docket.

After review by the Clerk of Court’s office, the case

will be automatically consolidated for pretrial purposes in the
MDL and listed as a Member Case.

If counsel have any questions

regarding opening a civil case, contact the Civil Case Openings
unit of the Southern District of New York at 212-805-0632 or
[e-mail].
4.

The process for direct filing will be as follows:
a.

Attorneys who are subject to the Local Rules of

this District must file the complaint in accordance with the
Local Rules.

Attorneys who are not admitted to practice in

the United States District Court for the Southern District of
New York shall seek admission prior to the direct filing of the
cases in accordance with this Court’s October 19, 2022 Order:
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Attorney Admissions.
b.

All plaintiffs directly filing in the MDL are

required to pay the standard New Action Filing Fee to initiate
the case.
c.

Any complaint that is directly filed in the MDL

shall bear following caption:
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
IN RE: Acetaminophen – ASD-ADHD :
Products Liability Litigation
:
:
This Document Relates To:
:
:
_________________,
:
:
Plaintiffs,
:
:
-v:
:
_________________,
:
:
Defendants.
:
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d.

22md3043 (DLC)

DIRECT FILED COMPLAINT [&
JURY DEMAND] PURSUANT TO CASE
MANAGEMENT ORDER: DIRECT
FILING
CIVIL ACTION NO.
_____________

Each case filed directly in the MDL that

emanates from a district outside the Southern District of New
York will be filed in the MDL for pretrial proceedings only,
consistent with the Judicial Panel on Multidistrict
Litigation’s October 5, 2022 Transfer Order.
e.

In any complaint directly filed in the Southern

District of New York pursuant to this Order, plaintiff’s
counsel shall identify the federal district or districts in
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which the individual plaintiff resides or any other district in
which the action otherwise would have been appropriately filed
absent direct filing.

Specifically, each plaintiff filing

directly in this MDL shall plead the following language in the
leading paragraph of the complaint:
Plaintiff files this Complaint pursuant to Case
Management Order: Direct Filing, and is bound by the
rights, protections, privileges, and obligations of
that Order. Further, in accordance with said Order,
Plaintiff hereby designates the United States District
Court for the
_____ as Plaintiff’s home venue, as
this case may have originally been filed there as
Plaintiff currently
resides in _____ (city), __
(state).
f.

Upon completion of all pretrial proceedings

applicable to a case directly filed in this Court, pursuant to
28 U.S.C. § 1404(a), if the Court determines that transfer of a
given case or cases is warranted, the Court will transfer each
such case to the identified federal district of the plaintiff’s
residence unless that designation is subject to challenge,
pursuant to Paragraph 4(h) of this Order, or to another district
which the parties to the action jointly request that the case
be transferred.
g.

Plaintiffs, through Co-Lead Counsel, and

Defendants in the applicable Member Case shall have fourteen
(14) days from the date the action is listed as a Member Case,
pursuant to Paragraph 3, supra, to confer and object by letter
motion to the inclusion of the case in the MDL.
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The party in

favor of inclusion in the MDL shall then have three (3) days to
file a response to any such objection.

Failure to object as

set forth herein shall constitute a waiver of any objection to
inclusion of the case in the MDL for pretrial proceedings.
h.

Plaintiffs, through Co-Lead Counsel, and

Defendants shall have fourteen (14) days from the date the action
is listed as a Member Case to object to a plaintiff’s designation
of home venue in any directly filed Complaint.

Objections

regarding a plaintiff’s designated home venue may be raised by
letter motion at any time thereafter upon a showing of good
cause, but no later than the deadline for the conclusion of
fact discovery in the individual directly filed action.
5.

Nothing contained in this Order shall preclude the

parties from agreeing, at a future date, to try cases filed
pursuant to this Order in the Southern District of New York.
6.

All Defendants currently before this Court as of the

date of this Order stipulate and agree that they will not assert
any objection of improper venue pursuant to Fed. R. Civ. P.
12(b) as to any Member Case filed directly in the Southern
District of New York where the plaintiff has designated in the
complaint another district as the plaintiff’s home venue unless
and until the Court determines that transfer to a plaintiff or
plaintiffs’ designated home venue is appropriate.
7.

The inclusion of any action in the MDL, whether such
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action was or will be filed originally or directly in the
Southern District of New York, shall have no impact on the
choice of law determination that otherwise would apply to an
individual case had it been originally filed in another district
court and transferred to this Court pursuant to 28 U.S.C. §
1407.
8.

The direct filing of a case in the MDL shall not

constitute a determination by this Court that venue is proper in
this district, nor a waiver of personal jurisdiction or service
by any named Defendant.

Nor shall the filing of an action

directly in the MDL constitute, for any party, a waiver pursuant
to Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523
U.S. 26 (1998).

The Court understands that Defendants expressly

reserve all rights pursuant to Lexecon.
9.

The filing of a complaint directly in the MDL pursuant

to this Order shall stop the running of any statute of
limitations or prescriptive or preemptive period as if the
complaint had been filed in an appropriate venue.
10.

Defendants reserve all rights to move to dismiss any

directly filed individual complaint under Rule 12 or Rule 9,
consistent with a schedule to be entered by the Court.

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11.

The references to “Defendants” herein shall not

constitute an appearance by or for any Defendant not yet named
in the MDL and/or not properly served.
Dated:

New York, New York
November 17, 2022
DENISE COTE
United States District Judge

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