In re Zantac (Ranitidine) Prod. Liab. Litig.

• Decision Date: 03 May 2021
• Docket Number: CASE NO.: 20-MD-2924
• Parties: IN RE: ZANTAC (RANITIDINE) PRODUCT LIABILITY LITIGATION
• Court: U.S. District Court — Southern District of Florida

IN RE: ZANTAC (RANITIDINE) PRODUCT LIABILITY LITIGATION

CASE NO.: 20-MD-2924

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

May 3, 2021

ORDER DISCHARGING ORDER TO SHOW CAUSE [ECF NO. 3000]

On February 25, 2021, the Court entered Pretrial Order #60 ("PTO 60") (ECF No. 2877) to address procedures relating to discovery between Plaintiffs and the following Defendants:

Ajanta Pharma USA Inc.

Amneal Pharmaceuticals LLC

Amneal Pharmaceuticals of New York, LLC

Apotex Corporation

Aurobindo Pharma USA, Inc.

Auro Health LLC

Dr. Reddy's Laboratories, Inc.

Dr. Reddy's Laboratories LLC

Glenmark Pharmaceuticals, Inc., USA

Granules USA, Inc.

Heritage Pharmaceuticals, Inc.

Lannett Co., Inc.

Nostrum Laboratories, Inc.

Novitium Pharma LLC

PAI Holdings, LLC

Par Pharmaceutical Inc.

L. Perrigo Co.

Perrigo Research & Development Company

Sandoz Inc.

Strides Pharma, Inc.

Sun Pharmaceutical Industries, Inc.

Teva Pharmaceuticals U.S.A., Inc.

Actavis Mid Atlantic LLC

Watson Laboratories, Inc.

Torrent Pharma Inc.

Wockhardt USA LLC

Zydus Pharmaceuticals (USA) Inc.

PTO 60 contained provisions relating to upcoming depositions pursuant to Federal Rule of Civil Procedure 30(b)(6). It ordered:

No later than February 28, 2021, all Generic Manufacturer Defendants will provide Plaintiffs a list of proposed initial custodians, which shall include: (a) the custodian's full name, (b) job title(s), (c) department the custodian worked in, and (d) years employed. This list does not represent a complete list of all custodians for this case but should represent Generic Manufacturer Defendants' proposal for all custodians they deem relevant, taking into account the allegations in the Master Pleadings, the discovery requests at issue, and the three Rule 30(b)(6) deposition notices served to date. Custodians should span the relevant time period in Plaintiffs' requests for production. Generic Manufacturer Defendants will meet and confer with Plaintiffs individually to determine the sufficiency of their custodial lists in light of the amended class pleadings and Defendants' document productions, understanding that Plaintiffs presently do not have sufficient information to identify all relevant custodians from any Generic Manufacturer Defendant.

PTO 60 §II(B)(2).

No later than February 28, 2021, each Generic Manufacturer Defendant will provide to Plaintiffs the number of witnesses it expects to produce for each deposition notice and tentative dates on which it will present each witness for deposition in accordance with the below scheduling requirements, such dates and witnesses being subject to revision up to three days after the Court's order on the Pretrial Order # 32 hearing issues. Notwithstanding this deadline, this Court encourages Generic Manufacturer Defendants to provide dates as soon as possible in light of the number of depositions to be scheduled and the limited number of depositions that can be scheduled on the same date.

a) Each Generic Manufacturer Defendant will provide a date in April 2021 to produce its witnesses on the issues of storage and transport.b) Each Generic Manufacturer Defendant will provide a date in May 2021 to produce its witnesses on the issues of manufacturing.

c) Each Generic Manufacturer Defendant will provide a date in May 2021 or prior to June 15, 2021 to produce its witnesses on the issues of pharmacovigilance.

PTO 60 §II(C)(2).

At a discovery dispute hearing on March 4, 2021, Plaintiffs represented that the following defendants ("the Non-Manufacturing Generic Defendants") had not timely provided the information required by PTO 60 §II(C)(2):

Ajanta Pharma USA Inc.

Apotex Corporation

Aurobindo Pharma USA, Inc.

Aurobindo Health LLC

Granules USA, Inc.

Heritage Pharmaceuticals, Inc.

Heritage Pharma Labs Inc.

Ranbaxy Inc.

Sun Pharmaceutical Industries, Inc f/k/a Ranbaxy Pharmaceuticals Inc.

Taro Pharmaceuticals U.S.A., Inc.

Torrent Pharma Inc,

Wockhardt USA LLC

Wockhardt USA, Inc.

ECF No. 2938-1. The Non-Manufacturing Generic Defendants agreed that they had not provided this information on or before February 28. Hrg. Transcript at 8-11 (ECF No. 3067). The Plaintiffs thereafter clarified that two defendants (Ajanta Pharma USA Inc. and Torrent Pharma Inc) had not provided any deposition dates and that the remainder had not provided dates for a manufacturing deposition. See Exhibit 1 to this Order.

Plaintiffs also represented that the following Generic ManufacturerDefendants had not timely provided the list of initial proposed custodians required by PTO 60 §II(B)(2):

Nostrum Laboratories Inc.

Novitium Pharma LLC

Hrg. Transcript at 7-8. These two defendants complied with PTO #60 on March 1 and 2, 2021, respectively. Ex. 1.

On March 9, 2021, I entered an order to show cause why the Non-Manufacturing Generic Defendants, Nostrum, and Novitium should not be sanctioned for their non-compliance with PTO 60. ECF No. 3000. The defendants filed Responses. ECF Nos. 3104 (Non-Manufacturing Generic Defendants), 3106 (Nostrum and Novitium). Plaintiffs did not file a Reply.

The Non-Manufacturing Generic Defendants argue:

1. There was no non-compliance;

2. If there was non-compliance, it was not intentional;

3. They relied on Plaintiffs' acknowledgement that "the Generic Defendants would not provide witnesses for subjects outside their business operations - such as manufacturing - when that business function is performed instead by a foreign entity that is not yet subject to the Court's jurisdiction or is challenging that jurisdiction";

4. Plaintiffs have not been prejudiced by any non-compliance;

5. These defendants have not engaged in a pattern of non-compliance or total disregard of the Court's orders.

ECF No. 3104 at 5. Novitium and Nostrum argue that they acted in good faith butran out of time to comply or to seek an extension of time. ECF No. 3106.

THE COURT'S AUTHORITY TO SANCTION

"[I]n order to ensure the orderly administration of justice, [a district court] has the authority and responsibility to set and enforce reasonable deadlines." Lowe's Home Centers, Inc. v. Olin Corp., 313 F.3d 1307, 1315 (11th Cir. 2002). "[C]ase management depends on enforceable deadlines. . . . In managing their caseloads, district courts are entitled to—'indeed they must—enforce deadlines.'" Flint v. City of Belvidere, 791 F.3d 764, 768 (7th Cir. 2015) (citations omitted). The Court's authority to sanction parties and/or their counsel for non-compliance with a discovery-related order includes (1) criminal contempt, (2) the Court's inherent authority, (3) 28 U.S.C. § 1927, (4) Federal Rule of Civil Procedure 37(b)(2), (5) civil contempt, and (6) Federal Rule of Civil Procedure 16(f).

1. Criminal Contempt/Inherent Authority/28 U.S.C. § 1927

The first three sanctions require a finding of willful disobedience or bad faith. United States v. Baldwin, 770 F.2d 1550, 1557 (11th Cir. 1985) (criminal contempt requires willful disobedience of a court order); In re Mroz, 65 F.3d 1567, 1575 (11th Cir. 1995) (Invocation of a court's inherent power requires a finding of bad faith.); Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 (11th Cir. 2003) (28 U.S.C. § 1927 requires bad faith). Here, the record does not support a finding of willfulness or bad faith, so no sanctions are appropriate under the Court's criminal contempt power, its inherent authority, or § 1927.

2. Federal Rule of Civil Procedure 37(b)

Rule 37(b)(2) authorizes sanctions against a party who "fails to obey an order to provide or permit discovery." Fed. R. Civ. P. 37(b)(2). Here, PTO #60 did not require these defendants to provide or permit particular discovery; §II(B)(2) required each of them to provide "a list of proposed initial custodians, which shall include: (a) the custodian's full name, (b) job title(s), (c) department the custodian worked in, and (d) years employed;" §II(C)(2) required each of them to specify "the number of witnesses it expects to produce for each deposition notice and tentative dates on which it will present each witness for deposition." Therefore, Rule 37(b)(2) does not apply.

3. Federal Rule of Civil Procedure 16(f)

Rule 16(f)(1)(C) states, "On motion or on its own, the court may issue any just orders . . . if a party or its attorney . . . fails to obey a scheduling or other pretrial order." Fed. R. Civ. P. 16(f)(1)(C). "Rule 16(f) sanctions were 'designed to punish lawyers and parties for conduct which unreasonably delays or otherwise interferes with the expeditious management of trial preparation.' United States v. Samaniego, 345 F.3d 1280, 1284 (11th Cir. 2003). As the 1983 Advisory Committee Notes point out, the court 'has discretion to impose whichever sanction it feels is appropriate under the circumstances' and the decision to award sanctions is 'reviewable under the abuse-of-discretion standard.'" In re Sanctions Hearing: Remer, No. 11-23592-CIV, 2012 WL 12888409, at *8 (S.D. Fla. Dec. 20, 2012) (J. Goodman), report and recommendation adopted sub nom. Dammar-Fletcher v. Baptist Health S. Fla., Inc.,No. 12-2298-CIV, 2013 WL 12131602 (S.D. Fla. Jan. 11, 2013) (J. Graham). Rule 16(f) sanctions can be "imposed to vindicate the integrity of the court and deter future violations" of court orders. Pinero v. Corp. Cts. At Miami Lakes, 389 F. App'x 886, 889 (11th Cir. 2010).

A finding of bad faith is not a prerequisite to sanctions under Rule 16(f). Giovanno v. Fabec, 804 F.3d 1361, 1366 n.5 (11th Cir. 2015). Sanctions under Rule 16(f) "are appropriate for negligent failure to comply with court orders." Ross v. Lamberti, No. No. 09-61123-CIV, 2010 WL 11505214, at *5 (S.D. Fla. July 16, 2010) (J. Snow) (citations omitted). "Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses—including attorney's fees—incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust." Fed. R. Civ. P. 16(f)(2).

Although not expressly required by Rule 16(f), in...