In the January 2017 Hearing Session the United States Judicial Panel on Multidistrict Litigation (JPML) met regarding motions to centralizing forming new multidistrict litigation (MDL). Filed on Feb. 2, the JPML issued an order denying transfer of MDL No. 2757 – IN RE: Proton-Pump Inhibitor Products Liability Litigation.
The plaintiffs had sought to centralize 15 federal PPI cases; the panel mentioned being informed of 24 additional similar cases. They requested that the MDL be formed in the Middle District of Louisiana, the District of New Jersey, the Southern District of Illinois, the District of Kansas, or the Western District of Louisiana. The defendants opposed centralization.
The JPML denied the plaintiffs’ motion although acknowledging that the cases share similar allegations that proton pump inhibitors (PPIs) can cause various types of kidney damage including acute interstitial nephritis (AIN), chronic kidney disease, end stage renal disease, and kidney failure. One of the reasons listed was the “the variety of kidney injuries alleged, combined with these differences among the drugs, significantly undermines any efficiency gains to be achieved from centralization.”
The difference among the drugs mentioned in the previous statement goes beyond the fact that some PPIs are available by prescription and some are available over the counter, but the panel points out that these drugs are not identical. Of the various types of PPIs, the JPML says, “Each has a unique development, testing, and marketing history, and each was approved by the FDA at different times.” The panel says that this will cause much of the discovery in these cases to be defendant-specific.
Another issue mentioned by the panel is the number of defendants and the fact that they are competitors. With most defendants only being named in a fraction of the cases, centralization wouldn’t be convenient for them and their witnesses. “We are typically hesitant to centralize litigation against multiple, competing defendants which marketed, manufactured and sold similar products,” said the panel in regard to the difficulties in protecting trade secrets and confidential information.
The plaintiffs’ attorneys expect there to be hundreds, if not thousands, of similar cases filed in the future as more and more people who have suffered kidney injuries learn that the presumed safe and extremely popular acid reducing drugs have been linked to these dangerous side effects. However, in spite of this, the above mentioned considerations “fatally undercut the case for centralization.”
During the panel discussion in January, Law360 reported that one of the seven-member JPML U.S. District Judge Sarah Vance said when they were discussing structuring a possible MDL, “It just seems to me to be nightmarishly complex.”