Pete Kaufman
Consolidated pharma cases: A rising tide lifts all boats How plaintiffs’ leadership in consolidated pharmaceutical cases can best protect the rights of all claimants
Cases involving injuries caused by pre-
scription drugs are nearly always consoli- dated for pretrial proceedings. This serves a number of valid ends. For example: the discovery process is streamlined for plain- tiffs; coordination among plaintiffs’ coun- sel provides for economies of scale with respect to discovery against defendant; consistency can be achieved in rulings on critical dispositive motions, addressed to issues of general applicability. In other ways, however, the process
divests plaintiffs and their counsel of “ownership” of their case. This is because the task of developing the defendant’s liability becomes, largely, the responsibili- ty of a small group of lawyers appointed by the court, usually referred to as the “Plaintiff ’s Steering Committee” (“PSC”). Those attorneys who do not participate in the plaintiffs’ leadership, but who rep- resent claimants with cases transferred to the consolidated proceeding are, to some extent, sidelined until that proceeding ends and individual cases are remanded to the original jurisdiction. In theory, this “wait and see”
approach is reasonable. Arguably, a claimant can maximize recovery in con- solidated drug cases by petitioning for remand at the appropriate time, and then leveraging a trial setting. But, as any practitioner with experience litigating pharmaceutical cases knows, this almost never happens. Indeed, few drug cases are ever tried in coordinated proceedings, and plaintiffs and their counsel are left to resolve their claims on the backs of what- ever limited results are realized. To be sure, there are examples of pharmaceutical Multidistrict Litigations
26 — The Advocate Magazine JANUARY 2012
(“MDL”) in which so-called “bellwether” trials have achieved productive results (e.g., the recent Vioxx litigation). And courts in consolidated cases routinely invoke the specter of mass remands in order to motivate litigants. But all too often, large drug cases are resolved with- out bellwether trials, and without any meaningful threat of large numbers of “post-remand” trials. This happens, prin- cipally, for two reasons: First, MDL courts and their state court counterparts are loathe to burden their brethren with trial cases. Second, there has been a persistent failure on behalf of the plaintiffs’ leader- ship in consolidated pharmaceutical pro- ceedings to convert the massive amount of evidence obtained during pretrial dis- covery into the sort of work product which would enable lawyers across the country to bring multiple complex drug cases to trial. The solution to this problem lies not
in rejecting the system of coordinated mass actions, but in working effectively within it. Consolidation of pharmaceuti- cal cases is a fact of life for claimants and their counsel. There simply is no more efficient means for handling large num- bers of claims involving the same prod- uct and – usually – nearly identical injuries. But in the absence of genuine trial pressure, truly equitable resolution of these cases is much harder to achieve. This article offers examples of ways in which the plaintiffs’ leadership in consol- idated drug cases can best discharge their obligation to claimants and their counsel, putting them on vastly improved footing when resolving these claims.
Consolidation and management of claims
Since the peak of the Bendectin liti-
gation in the late 1980s and early 1990s, there have been scores of consolidated actions involving drug products, ranging in size from the massive Vioxx litigation – with more than 50,000 claims – to cases with relatively small numbers of plain- tiffs, involving drugs like Zicam and the Nuvaring contraceptive device. The pri- mary claim in all these cases is strict products liability failure to warn; that is, the manufacturer failed to warn prescrib- ing physicians about a risk, or risks, of the drug, about which it knew or should have known. These cases have had wide- ranging effects: exerting enormous influ- ence on drug manufacturers in a way that has benefitted patients; producing semi- nal U.S. Supreme Court decisions, (See, e.g., Wyeth v. Levine (2009) 555 U.S. 555 and Daubert v. Merrell Dow Pharmaceuticals (1993) 509 U.S. 579) and, in some cases, inundating court systems across the coun- try with tens of thousands of claims. Because jurisdiction in many, if not
most, drug cases is founded on diversity, the lion’s share are filed in, or ultimately removed to, the federal courts. When two or more cases involving the same drug and similar injuries are pending in more than one district court, the Judicial Panel on Multidistrict Litigation can transfer them to a single federal district court (transferee court), for centralized pretrial proceedings. (See 28 U.S.C. § 1407(a).) In cases of this sort, centralization under section 1407 is generally considered to
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