The New Jersey judiciary is considering a request from Passaic County, N.J.'s top judge for mass tort status for a growing number of suits alleging strokes and other serious health problems from the oral contraceptives Yaz, Yasmin and Ocella.
With 13 suits filed in his vicinage, Assignment Judge Donald Volkert Jr. wrote to Acting Administrative Director of the Courts Glenn Grant on Oct. 22 that "the case management and potential trial of this particular litigation would place a fairly substantial strain on our already limited resources."
There are 26 suits against the contraceptives' manufacturers pending in other counties, and Volkert said plaintiffs lawyers have told him the number could reach 1,000.
In a notice to the bar, the Administrative Office of the Courts says it will accept public comments until Dec. 31 on the proposal to centralize the cases in Atlantic, Bergen or Middlesex counties, where mass torts are heard.
Named defendants in the suits are Bayer Healthcare Pharmaceuticals, a German company with U.S. headquarters in Wayne, which makes Yaz and Barr Pharmaceuticals of Montvale, owned Teva Pharmaceuticals of Israel, which makes Ocella, a generic version.
Cited in Volkert's mass tort application is a suit filed in Passaic, N.J., by 10 women from Texas and Tennessee who allege they suffer from deep vein thrombosis, pulmonary embolism and other problems due to the prescription drugs.
The suit asserts that "defendants should have known that Yaz, Yasmin and Ocella created a higher risk of pulmonary embolism than other oral contraceptives on the market."
The suits allege that the drugs contain estrogen and progestin, which suppress ovulation and prevent pregnancy. The drugs also contain drospirenone, an ingredient not in other oral contraceptives. Drospirenone is allegedly unlike other progestins in the United States and was not marketed in this country before its use in the three drugs.
In August, the British Medical Journal published two studies showing a higher risk of venous blood clots for women taking drospirenone than those who took other oral contraceptives.
And on Aug. 5, the Food and Drug Administration issued a warning letter to Bayer for using low-quality batches of drospirenone from a plant in Germany.
Besides the potential for a large number of filings, the cases have several other indicia of a mass tort, Volkert wrote. They include:
• geographic dispersement of parties;
• consolidation by the Judicial Panel for Multidistrict Litigation of federal litigation over the three drugs in the Southern District of Illinois;
• risk of redundancy and inconsistent filings by different judges, resulting in undue delay and expense;
• existence of common issues of law and fact, as found by the MDL panel; and
• increased efficiency by having one judge oversee the issues.
Consolidation of federal litigation weighs in favor of a similar move for state litigation because judges hearing federal multidistrict cases tend to coordinate case management with state judges hearing similar cases, says Michelle Perone, chief of civil court programs.
"It makes sense to have a single point of contact between the New Jersey judge and the federal judge," she adds.
Mass tort status requests are most often made by plaintiffs counsel, but court rules permit judges to make such applications, and this was not the first time a jurist did so, Perone says.
Another instance was when Passaic County Superior Court Judge Thomas Brogan successfully sought mass tort status for litigation over dumping of hazardous chemicals at the Ford Motor Plant, Ringwood Mines landfill and adjacent sites in Mahwah and Ringwood.
Mass tort applications from lawyers typically request a specific venue among the three counties where cases are heard, but Volkert's application did not.
Perone says she expects plaintiffs lawyers will express their preferences for venue in comments to the court, which would make the decision based mainly on caseloads of the various venues.
Convenience is a secondary consideration because lawyers in mass tort cases tend to conduct most meetings with the court by conference call or videoconference, Perone says.
Plaintiffs attorneys Christopher Seeger of Seeger Weiss in New York and Peter Goss of Wendt Goss in Kansas City, Mo., did not return calls. Neither did Bayer officials.
Teva spokeswoman Denise Bradley declines to comment.