The Zoloft MDL is going to have to pick up its pace if it's going to usher the way for state courts that are hearing similar cases, the federal judge presiding over the case told a room full of attorneys in federal court in Philadelphia during a status conference Thursday.
The multidistrict litigation, which was consolidated in the court of U.S. District Judge Cynthia Rufe of the Eastern District of Pennsylvania in the spring of 2012, now includes about 450 cases in which plaintiffs allege that their ingestion of Pfizer's antidepressant drug, Zoloft, caused birth defects in the babies they were pregnant with while they took the drug.
"We're supposed to be leading the discovery," Rufe said.
"I'm going to go out on a limb here and predict that if we don't move a little faster in the course of discovery and selection of cases and get the trial dates that we have already put in place … we're going to be the tail that's wagging, or trying to wag, this dog."
Most eligible cases have been filed in the MDL, Rufe said, but there remain a handful of stray cases that were filed in various state courts.
"I don't ever rely on a state court holding back, they shouldn't have to," she said, noting that a single case has much faster legs on its way to trial than a lumbering MDL with hundreds of cases. "Those few cases that remain can speed," Rufe said of pending state court actions.
She warned the dozens of lawyers, from Pfizer's defense team and the plaintiffs' steering committee, "if we are going to determine true issues of science, of liability, and then of damages, I would hope that we would be speeding along. It's time to speed."
Rufe favors coordinating with other judges presiding over similar cases and has been in touch with judges hearing Zoloft cases.
As she was presiding over the recent Avandia MDL, which included thousands of claims, she said to TheLegal for an article last month that it was necessary to coordinate on discovery.
"It was not only courteous to consult other judges, it's mandatory because you can't have conflicting decisions and rulings in the same area all over the country," Rufe said.
She also said that the discussions between judges have to be confidential and cannot cover any substantial matters.
Philadelphia Court of Common Pleas Judge Sandra Mazer Moss said in the same article that picking the same master that Rufe had picked and having joint hearings with Rufe on the science led to the litigation resolving successfully in the Avandia case.
"I don't think we could have done what we did without joint coordination," Moss said in June. "Otherwise we would have been on the rocky shoals."
But judges remain sensitive to their jurisdictions, Moss said. "I'm not going to coordinate and cooperate myself out of existence," she said.
Moss is also hearing a Zoloft case and has set a trial date for it in April of next year, said Andrew Chirls of Fineman Krekstein & Harris, who is serving as special master for discovery in the Zoloft MDL.
On the pace of discovery, he told Rufe on Thursday that he's heard concerns from both sides and he said, "It's always true that discovery could go faster." Chirls said he is planning to initiate weekly telephone conferences with the defense and plaintiffs' steering committee.
As each side has undertaken selecting cases for the discovery pool, the defense, led by Mark Cheffo of Skadden, Arps, Slate, Meagher & Flom, expressed frustration that half of the cases they had initially selected were dismissed by the plaintiffs. Each side picks 12.
Dianne Nast of RodaNast, who is co-lead counsel for the plaintiffs' steering committee, suggested that they reduce the number of cases each side picks. During the Avandia case, which had many more claims than the Zoloft case does, they arrived at that number, she said, but in this case they've been stymied by the fact that doctors and hospitals typically maintain patient records for only seven years.
Of the practice from both sides of dismissing cases after they've been selected for the discovery pool, Rufe said, "I'm troubled by that maneuvering."
After some discussion, Rufe said, "Ten on each side, if that's where we end up, seems logical, but, in getting there, you might need the extra numbers, just to whittle it down."
Saranac Hale Spencer can be contacted at 215-557-2449 or email@example.com. Follow her on Twitter @SSpencerTLI. •