A federal judicial panel has transferred more than 200 cases to New Jersey involving heartburn medications Nexium and Prilosec just six months after it refused a similar request.
In a notably lengthy opinion, the U.S. Judicial Panel on Multidistrict Litigation acknowledged that the litigation over so-called proton pump inhibitor drugs had grown from the 39 cases when it initially rejected a motion to coordinate on Feb. 2. The panel, which heard arguments on the renewed request and other MDL motions last month, noted that the primary defendants now supported transfer despite opposing it earlier this year.
“Although several of the grounds on which we denied centralization in Proton-Pump 1 remain largely valid, we find that the significantly larger number of involved actions, districts and counsel, the concomitant increase in burden on party and judicial resources, and the opportunity for federal-state coordination, coupled with most defendants’ change in position to now support centralization, tip the balance in favor of creating an MDL,” wrote panel chairwoman Sarah Vance, a district judge in the Eastern District of Louisiana, on Aug. 2.
The panel acknowledged concerns about multiple defendants in the litigation but cited its 2014 order creating an MDL that involved several makers of “low testosterone” medications—a case brought up at last month’s hearing by plaintiffs’ attorney Christopher Seeger, of New York’s Seeger Weiss, co-lead counsel in the litigation.
The panel sent the cases to U.S. District Judge Claire Cecchi, who has issued several orders already and has handled an MDL before.
The panel also transferred eight cases brought over the skyrocketing price of the EpiPen, used to treat food allergies, to U.S. District Judge Daniel Crabtree in Kansas, a 2015 appointee of President Barack Obama who hasn’t handled an MDL before. To expand its pool of judges, the panel is increasingly choosing younger appointees without MDL experience.
Crabtree inherited the first EpiPen case after U.S. District Judge John Lungstrum—who is overseeing genetically modified corn seed litigation against Syngenta AG—reassigned the case on June 30. EpiPen manufacturer Mylan, which initially opposed coordination, changed its view after U.S. District Judge Freda Wolfson in New Jersey refused to transfer to Kansas an antitrust case against it brought by competitor Sanofi-Aventis. Sanofi-Aventis tried to argue that its case didn’t belong in an MDL, but the panel disagreed.
“Sanofi, which opposes inclusion in this MDL, is correct that there are differences among the actions,” Vance wrote in an Aug. 3 order. “Unique legal theories and factual allegations in a particular action, though, are not significant where all the actions arise from a common factual core.”
The panel, which has increasingly denied requests to coordinate MDLs, rejected three other matters, including 13 lawsuits brought by American Civil Liberties Union chapters over President Donald Trump’s travel ban that the U.S. Department of Justice, in an unusual move, had wanted in Washington, D.C. The panel also rejected six class actions brought over the failed Fyre Festival that most plaintiffs’ lawyers had wanted transferred to New York or Florida.