Plaintiffs have filed another motion with the Judicial Panel on Multidistrict Litigation (JPML) hoping to consolidate cases alleging kidney injuries were caused by acid-reducing proton pump inhibitors (PPIs) such as Prilosec, Nexium, Protonix, and Dexilant.
MDL No. 2789 IN RE: Proton-Pump Inhibitor Products Liability Litigation (No. II) was filed on May 31, 2017. The drugs are accused of causing acute interstitial nephritis (AIN), chronic kidney disease, end stage renal disease, and kidney failure. Some of the complaints against the drug makers include: negligence, design defect, failure to warn, fraudulent concealment, warranty claims, and loss of consortium.
In February, the JPML issued an order denying transfer of the first PPI MDL brought by another set of attorneys in October of last year. They sought to consolidate 15 cases in the U.S. District Court for the Middle District of Louisiana.
In the new motion, the plaintiffs’ attorneys reference one of the JPML’s reasons for denying the first motion to form a multidistrict litigation (MDL). In February, The Panel said, “Finally, although plaintiffs almost guarantee that the number of involved actions will increase by the hundreds if not thousands, the Section 1407 motion presently encompasses just fifteen cases and 24 tag-alongs. The Panel previously has been ‘disinclined to take into account the mere possibility of future filings in [its] centralization calculus.’”
In response, the new motion, which is brought by attorneys representing 24 of the 172 actions currently pending in the United States District Courts, states, “Now, there are 172 such actions in total… Thus, the Panel need not worry about ‘the mere possibility of future filings’; the increase in filings has already occurred and is ongoing.”
The plaintiffs argue that because the 172 cases are filed in 30 different federal courts in 21 states, Arizona, California, Florida, Georgia, Idaho, Illinois, Kansas, Kentucky, Louisiana, Maine, Maryland, Missouri, North Carolina, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, South Carolina, Utah, and West Virginia, there is an undue burden on the courts, with inherent inefficiencies and duplicative efforts as well as a greater likelihood of inconsistent rulings and orders.
Sixty-two of those are filed in the District Court of New Jersey, where the plaintiffs propose the new MDL be consolidated under Judge Claire C. Cecchi. The cases filed in this court, as well as those filed in the Southern District of Illinois, have already advanced far ahead of those in any other jurisdiction.
Other reasons for denial of the earlier motion to consolidate listed by the JPML included defendants varying from action to action, defendants being competitors and that because the drugs are not identical discovery is likely to be defendant-specific. In response, the new motion points out that the suits only include seven products manufactured by five defendant groups. They list many MDLs that have included numerous defendants and point out that Judge Cecchi has experience presiding over such complex litigation and with pharmaceutical litigation.
The seven products include four prescription products: Prilosec, Nexium, Protonix, and Dexilant; and three over-the-counter products: Prilosec OTC, Prevacid 24-Hour, and Nexium 24 Hour. The five defendant groups listed are AstraZeneca Entities, Procter & Gamble Entities, Novartis Entities, Pfizer and Wyeth Entities, and Takeda Entities. The plaintiffs state that to their knowledge AstraZeneca, Pfizer, and Wyeth Defendants support the formation of an MDL, and that the Proctor & Gamble Defendants do not oppose an MDL.