In the latest volley by pharmaceutical defendants seeking alternative forums to Pennsylvania state court, drugmaker Pfizer on Wednesday asked that almost 50 cases that have been removed to the U.S. District Court for the Eastern District of Pennsylvania be consolidated into one multidistrict litigation.
Pfizer counsel Mark S. Cheffo and Katherine Armstrong of Skadden Arps Slate Meagher & Flom in New York filed a motion with the U.S. Judicial Panel on Multidistrict Litigation to consolidate 59 cases filed in Pennsylvania, New York, Illinois, Mississippi, Missouri and Ohio for pretrial proceedings.
The plaintiffs allege that birth defects were caused in children whose mothers took Zoloft during their pregnancies, according to court papers.
Some of the 48 Pennsylvania cases involving out-of-state plaintiffs were removed by Pfizer from Philadelphia Common Pleas Court. Pfizer’s request comes two months after another drug company filed a King’s Bench petition with the Pennsylvania Supreme Court, asking the court to intervene on the issue of forum in some pharmaceutical litigation.
Pfizer requested as its first choice of an MDL forum a jurisdiction in which it is headquartered: the Southern District of New York.
New York would be convenient because plaintiffs counsel are already scattered around the country, including in “Birmingham, Denver, Houston, Kansas City, St. Louis, New York and Philadelphia,” and New York is served by three international airports, Pfizer said.
The Southern District has more experience than any other district in handling MDLs, Pfizer said. Between 1977 and 2010, more than 100 MDLs have been transferred to that district.
In the alternative, Pfizer asked that the MDL be situated in the Northern District of Mississippi, the Southern District of Mississippi or the Northern District of Ohio.
Pfizer said that the Northern District of Mississippi is under a 1.5 hour drive from the airport in Memphis, Tenn.; the Southern District of Mississippi is less than 10 miles from the Jackson, Miss., airport; and the Northern District of Ohio is 12 miles from the Cleveland airport.
Pfizer argued in themotion that in the Pennsylvania cases, “plaintiffs have created an artificial concentration of cases in Pennsylvania by … fraudulently joining Wolters Kluwer Health, a Pennsylvania corporation, as a defendant, in order to defeat diversity jurisdiction.”
The plaintiffs’ theory against Wolters Kluwer Health is that it was negligent in the publication of the risks and benefits of using Zoloft during pregnancy in its patient education monographs.
Pfizer argues that the division that published the monographs, Medi-Span, is headquartered in Indiana and has offices in Missouri, so Pennsylvania has no “real nexus” to the out-of-state plaintiffs, defendants that the drug company argues are located elsewhere and the underlying allegedly negligent transactions.
Pfizer’s move follows drugmaker Bayer asking the state Supreme Court to intervene on the issue of the most convenient forum for several drug products liability cases brought by out-of-state plaintiffs in Philadelphia Common Pleas Court.
In its King’s Bench petition, various Bayer-related defendants argue that the Complex Litigation Center, Philadelphia’s program for mass torts, has shifted from its foundational purpose of reducing the backlog of asbestos cases to encouraging out-of-state plaintiffs to file their claims in Pennsylvania state court.
Instead, cases should be litigated in the federal multidistrict litigation panel or in the courts of the state in which the plaintiffs were allegedly injured, Bayer told the Supreme Court in its filing.
The petition was filed by Bayer Corp., Bayer HealthCare LLC, Bayer HealthCare Pharmaceuticals Inc. and Bayer Pharma AG regarding nine orders Philadelphia Common Pleas Court Judge Sandra Mazer Moss issued denying Bayer’s motions to dismiss nine out-of-state plaintiffs claims for forum non conveniens.
Bayer also appealed Moss’ orders, and those appeals have been denied by the state Superior Court.
Bayer cited in its petition comments made by Philadelphia Common Pleas Court President Judge Pamela Pryor Dembe in 2009 that the center’s administrators wanted the program to take “business away from other courts” and that significant filing fees were generated because of mass torts. The plaintiffs, however, noted in their response that Dembe also commented that the court wanted to know what would make the mass torts program “efficient, comfortable for their clients to litigate here, on both sides.”
In another pharmaceutical litigation in which Wolters Kluwer Health also was named, U.S. District Court Judge Jan E. DuBois of the Eastern District of Pennsylvania remanded a case to Philadelphia Common Pleas Court in which a plaintiff alleged that his use of acne treatment drug Accutane led to his development of colitis and ulcerative colitis.
DuBois found that Wolters Kluwer Health was not fraudulently joined. While the learned intermediary doctrine might shield Wolters Kluwer Health from liability because “nonphysicians such as pharmacists and drug manufacturers do not have an independent duty to warn about the dangers and side-effects of prescription drugs,” the judge continued that “fraudulent joinder should not be found simply because plaintiff had a weak case against a forum or nondiverse defendant.”
Zoloft, a selective serotonin reuptake inhibitor, has been on the market for 20 years and is used for treating depressive, obsessive-compulsive, panic, post-traumatic stress, premenstrual dysphoric and social anxiety disorders, according to court papers.
“The pending Zoloft litigation represents a small number of cases among millions of patients, including pregnant women, who were prescribed the medicine for the treatment of depression and other serious and often debilitating psychiatric conditions,” Pfizer said in a statement. “There is extensive science supporting the safety and efficacy of Zoloft, and the medicine carries accurate, science-based and FDA-approved information on its benefits and risks.”