Parties to Proton Pump Inhibitor Lawsuits at Odds Over Bellwether Trial Selections

Published on September 11, 2019 by Sandy Liebhard

The federal court overseeing thousands of kidney injury lawsuits involving Nexium, Prilosec, and other popular proton pump inhibitors is preparing to select candidates for planned bellwether trials.

Unfortunately, it seems that attorneys for plaintiffs and defendants are at odd over exactly how that process should move forward.

Proton Pump Inhibitor Lawsuits Head to Trial Next Year

More than 13,000 proton pump inhibitor lawsuits are undergoing consolidated pre-trial proceedings in the U.S. District Court, District of New Jersey. The vast majority of cases were filed on behalf of individuals who allegedly developed chronic kidney failure, kidney disease, and other renal complications due to their long-term use of Nexium, Prilosec, PrevAcid, Dexilant, and Protonix.

Bellwether trials are tentatively scheduled to begin in September 2020. As test cases, the proton pump inhibitor trials will involve a representative group of lawsuits, and their verdicts could provide valuable insight as to how other juries might decide similar claims.

While there is no guarantee that bellwether trial verdicts will compel the parties to reach a global settlement, this process has proven valuable in resolving other large, complex litigations.

The Court’s Bellwether Trial Proposal

Last month, the Court proposed establishing a bellwether trial pool consisting of 170 cases.

The first 150 proton pump lawsuits would be randomly chosen, while the parties would each make selection. At that point each side will designate 15 cases for further discovery.

The parties would then have opportunity to strike four selections each, resulting in a final trial pool consisting of 22 proton pump inhibitor lawsuits. Once core discovery is complete, the Court would choose six of the 22 cases for trial.

What the Disagreement is About

In letter submitted to Court on September 5th, defense attorneys maintained that the Court’s proposal implied all case selections for the initial pool would be restricted to proton pump inhibitor lawsuits filed prior to May 1, 2019. But while plaintiffs’ attorneys agreed to the Court’s plan, they rejected the defendants’ interpretation and accused their opponents of attempting to cut a side deal.

“While there were features of the plan that the PSC was opposed to, we agreed it was a compromise as the Court had considered the concerns of all parties when making its proposal,” the Plaintiffs’ letter states. “However, we agreed to the plan with the expectation that the Defendants would inform the Court whether they would consent to the plan by September 5, 2019, and we were explicit that there would be no further negotiations with Defendants nor would we entertain any deviations or counter proposal from that plan that the defense might try to offer.”

According to the letter, the defendants’ counter proposal is a “tacit admission” that they are rejecting the Court’s proposal. As such, the plaintiffs requested that the Court require each side to select 10 proton pump inhibitor lawsuits for inclusion in the bellwether trial pool by October 11th.  The Court would then choose the final bellwether trial cases.

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