More than 100 plaintiffs with cases pending in Pennsylvania federal court over claims that the diabetes drug Invokana caused kidney damage are challenging the drugmaker’s efforts to move those cases into a recently-established multidistrict litigation in New Jersey.
Drugmakers Janssen Pharmaceuticals recently filed a motion seeking to stay and then transfer or dismiss 106 cases that had been filed in Pennsylvania state court and later removed to the U.S. District Court for the Eastern District of Pennsylvania. The plaintiffs responded to those efforts Monday, arguing that the transfer would go against “virtually all of” the factors courts should consider.
“In particular, 1) the plaintiff’s choice of forum should be given weight because there is a nexus between Pennsylvania and the allegations in the case; 2) the purported convenience that defendants rest on will not be realized because there are a number of cases that cannot be transferred for diversity jurisdiction; 3) the proposed new location is less convenient for nonparty witnesses; and 4) other factors weigh against transfer, including the convenience of the parties weighed against financial condition, and the relative congestion of the two districts at issue,” the plaintiffs’ reply filed in the case Portnoff v. Janssen Pharmaceuticals said.
Lopez McHugh attorney Joshua Mankoff filed the reply in Portnoff. He declined to comment beyond the filing.
Kaitlin Meiser, a spokeswoman for Janssen, said the company is committed to defending against the allegations, and transferring the cases to promote efficiency.
“We believe that these cases should then either be transferred to the District of New Jersey where the federal multidistrict litigation is pending to promote efficiency for all parties, or dismissed outright on numerous grounds,” she said in an emailed statement.
The plaintiffs’ reply comes about a month after the Judicial Panel for Multidistrict Litigation authorized dozens of cases over Invokana to be transferred and centralized in the U.S. District Court for the District of New Jersey. The panel designated Judge Brian R. Martinotti to handle the cases.
According to the JPML’s order, 55 cases were pending at the time of consolidation, some of which had been filed in Minnesota, Illinois, Kentucky, Missouri, Virginia and West Virginia. In its order, the panel said it expected to see 44 additional cases to be filed in New Jersey federal court.
Janssen’s request to stay and transfer, or dismiss the cases was made Nov. 21—before the multidistrict litigation had been established. But, its motion said it was likely that Invokana cases would be transferred to Martinotti. The drugmaker said that transferring the Pennsylvania wing of the litigation to Martinotti would “encourage efficient and expeditious resolution of these cases by a single judge while helping to minimize the wastefulness of time, energy, and money.”
Pennsylvania has been home to a significant chunk of the nationwide Invokana-related litigation.
Most of the 106 cases pending in Pennsylvania federal court, which involves 143 plaintiffs, were initially filed in the Philadelphia Court of Common Pleas.
The plaintiffs had sought to consolidate those cases into a mass tort in Philadelphia’s Complex Litigation Center, but, before a ruling was made on that request, the defendants removed the cases to federal court, citing the Class Action Fairness Act. That act is aimed at ensuring federal courts can consider “interstate cases of national importance.”
In their challenge to the latest efforts to transfer the cases, the plaintiffs have argued that the rule Janssen pointed to in seeking to transfer the litigation to New Jersey may go against the transfer rules outlined in the Class Action Fairness Act. The filing noted that the issue—whether 28 U.S. Code Section 1332 does not allow transfer under 28 U.S. Code Section 1404—is one of first impression for the district.
“Though various districts in California have permitted 1404(a) transfer to an MDL … the legislative history was not considered in any of those cases,” the filing said.
A hearing on the plaintiffs’ motion to remand the cases back to state court is also set to take place in federal court Wednesday.
Max Mitchell can be contacted at 215-557-2354 or firstname.lastname@example.org. Follow him on Twitter @MMitchellTLI.