The US Judicial Panel on Multidistrict Litigation (JPMDL) cited four reasons to refuse the creation of a multi-district litigation docket for plaintiffs in nationwide proton pump inhibitor lawsuits, charging that the heartburn medicines cause kidney damage.
Six plaintiffs who suffered kidney damage had filed a motion for the JPML to create a new MDL 2757 in Louisiana to consolidate 15 lawsuits filed against manufacturers of proton pump inhibitor (PPI) medicines in federal court in California, Illinois, Kansas, Louisiana, Missouri, New Jersey, New York, Ohio, Tennessee, and West Virginia.
The cases arise from allegations that taking proton pump inhibitors (PPIs) may result in various types of kidney injury, including acute interstitial nephritis (AIN), chronic kidney disease, end-stage renal disease, and kidney failure.
First, the defendants vary from action to action. Although AstraZeneca is sued in most of the actions (14 constituent actions and 23 tag-alongs), P&G is sued in only eight, Takeda in four, and Pfizer in two. “Centralization thus appears unlikely to serve the convenience of most, if not all, defendants and their witnesses,” the court said.
Second, the various defendants are competitors. We are “typically hesitant to centralize litigation against multiple, competing defendants which marketed, manufactured and sold similar products,” the court said. Centralizing competing defendants in the same MDL likely would complicate case management due to the need to protect trade secret and confidential information.
Third, a significant amount of the discovery in these actions appears almost certain to be defendant-specific. Although all the subject drugs are PPIs, they are not identical. Some are available by prescription only, but others are sold over-the-counter. Each has a unique development, testing, and marketing history, and each was approved by the FDA at different times.
For example, Prilosec (omeprazole) and Prevacid (lansoprazole) have been on the market since 1989 and 1995, respectively, whereas Nexium (esomeprazole magnesium) was approved by the FDA in 2001. “Further, the variety of kidney injuries alleged, combined with these differences among the drugs, significantly undermines any efficiency gains to be achieved from centralization,” the court said.
Fourth, 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 15 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,” the court said. “Such caution is warranted here, given that the first PPI came to market more than two decades ago and the drugs have been taken by millions of Americans.”