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Pfizer Inc., facing a raft of New Jersey suits over its birth-control product Depo-Provera, wants the litigation handled as a mass tort. Pfizer moved on Feb. 23 to consolidate 151 suits filed in Middlesex and Camden counties for centralized case management, and plaintiffs attorneys support the motion. A public notice issued by Administrative Director of the Courts Philip Carchman gives interested parties until March 30 to comment. The suits allege that Depo-Provera, a drug administered by injection, carries a risk of bone loss as high as 25 percent to 35 percent among users who take it for more than two years. Some plaintiffs claim that their bones have shattered while undertaking activities as routine as stepping off a curb. What’s more, plaintiffs claim the manufacturer has long known about the problem. The suits allege negligence, negligent and intentional misrepresentation, breach of express and implied warranty, negligent infliction of emotional distress and violation of the New Jersey Products Liability Act and Consumer Fraud Act. The plaintiffs seek compensatory damages for present and future physical, emotional and economic injuries, punitive damages, related fees and costs and, in some cases, medical monitoring. In a similar case, a putative class action filed in the District of New Jersey last November, Riddell v. Pfizer Inc., Pfizer denied the allegations. It cited approval given the drug by the Food and Drug Administration and invoked the Learned Intermediary Doctrine, noting that a notice given prescribing physicians since the drug’s introduction in 1992 addresses the bone loss issue. Pfizer also faces nine suits in seven other states over Depo-Provera. In seeking mass tort status for the New Jersey cases, Pfizer lawyer Ezra Rosenberg noted the large number of parties, complaints with common issues of law and fact, geographic disbursement of parties and similarity of alleged injuries. He said mass tort designation would provide an opportunity to promote communication by appointment of liaison counsel and to reduce expense. Centralized case management would also reduce risk of inconsistent rulings, said Rosenberg, of Dechert in Princeton, N.J. Three of the plaintiffs in the New Jersey cases come from the state; the rest come from 37 other states. The out-of-state suits were filed by Oshman & Mirisola of New York, and two Philadelphia firms, Anapol Schwartz Weiss Cohan Feldman & Smalley and Sheller Ludwig & Sheller. Plaintiffs lawyers Theodore Oshman and James Ronca, of Anapol Schwartz, support the motion for mass tort status. The third plaintiffs firm, Sheller Ludwig, did not return a reporter’s call. Oshman said his firm chose New Jersey as the venue because it has the largest concentration of doctors and scientists from Pfizer and its predecessors, also named as defendants. Depo-Provera has been used for 14 years in the United States and longer in other countries. It was developed by Upjohn Co. of Kalamazoo, Mich., and approved for use in the United States in 1992. Upjohn merged in 1995 with Swedish drug company Pharmacia Corp., whose U.S. headquarters were in Peapack. Pharmacia and Pfizer merged in 2003. In November 2004, Pfizer entered an agreement with the Food and Drug Administration to add a warning to the drug’s label that using it for more than two years creates risk of bone loss. Plaintiffs lawyer Oshman said that although the risk of bone loss was known to be a side effect before then, the FDA warning raised red flags. Pfizer spokesman Bryant Haskins’ said Depo-Provera has been used by tens of millions of women since introduced overseas in the 1960s and “has a tremendous record of safety and efficacy.” The class action complaint estimates that 1 million American women use Depo-Provera. The company’s marketing targeted young women as users, and it hired Maureen McCormick, the actress who played Marcia in The Brady Bunch, to appear as a spokeswoman, the class action complaint said. New Jersey has designated 13 species of litigation as mass torts, including diet drugs, hormone replacement therapy, asbestos, lead paint and the Merck & Co. painkiller Vioxx. They are handled in Middlesex, Bergen and Atlantic counties. This article originally appeared in the New Jersey Law Journal, a publication of ALM.

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