Parties in JUUL Marketing MDL Bring Discovery Dispute to Magistrate Judge

On Monday in the Northern District of California, counsel for the defendant e-cigarette manufacturer JUUL Labs, Inc., Altria, and five of their executives, together with the plaintiffs’ co-lead counsel, submitted a letter brief explaining their positions on disputed issues for Magistrate Judge Jacqueline Scott Corley’s consideration. The case was filed in 2019, when the plaintiffs accused the defendants of improperly aiming their marketing efforts at children. The letter brief argument centered on proposed “Government Entity and School District Plaintiff Fact Sheets” (collectively PFS), which are questionnaires meant to elicit information pertinent to the plaintiffs’ tort claims.

The litigation against the vaping and smokeless tobacco product manufacturers is currently being pursued by both private parties and government entities, a collection of seven school districts. The complex and layered multi-district litigation is proceeding with discovery ahead of a motion to dismiss hearing, rescheduled several times and now set for Nov. 11.

In their most recent submission, the parties debated the PFS’ appropriate level of detail and length relating to the “bellwether” case selection process, a bellwether case being one used to test one or more issues common to all claimants. The parties also disagreed as to whether the court’s forthcoming implementation order should dismiss the claims of plaintiffs, who fail to meet the PFS submission deadline or requirements with prejudice.

The defendants explained that “[t]he PFS process is a critical means to efficiently assess, litigate, and/or otherwise resolve these claims and the overall MDL.” The proposed PFS that they have asked the court to adopt will supposedly “elicit probative information with minimal burden,” advancing the bellwether selection process and facilitating the overall resolution of the MDL, they contended.

The defendants further argued that the court’s PFS implementation order, “should reflect the aggressive case schedule.” They acknowledged that though the COVID-19 pandemic presents understandable difficulties, the plaintiffs decided to and are still pursuing the cases on their own volition. Thus, dismissal with prejudice is “fair and appropriate” for “failure to provide basic discovery on a reasonable timeframe.”

The plaintiffs first noted that “[d]uring the September 1, 2020 Informal Discovery Conference, the Court remarked that the Defendants’ proposed Government Entity (“GE”) Plaintiff Fact Sheets (“PFS’s”) were ‘[w]ay too detailed’ and that they ‘would take days and days and hours and hours, which school personnel don’t have, counties either.’” In asking the court to adopt their proposed PFS, the plaintiffs argued that their shorter PFS is appropriate, whereas, the defendants’ latest proposal still seeks information that is unnecessary and burdensome.

The plaintiffs also made light of the alleged fact that the defendants will be entitled to much of the discovery covered by the questions in the PFS at a later juncture. Finally, the plaintiffs claimed that the court’s implementation order need not provide for a dismissal with prejudice because “there is no valid basis for imposing such a draconian penalty on a GE Plaintiff, particularly in the middle of a pandemic that has schools, cities and counties stretched thin to provide services to their students and citizens amid a constantly shifting public health landscape.”

The letter was signed and submitted by counsel from Kirkland & Ellis LLP, the firm that represents Juul Labs, Inc. and serves as lead defense liaison counsel.