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97 Federal Cases Alleging Cancer From Diabetes Drugs Centralized In MDL

WASHINGTON, D.C. — (Mealey’s) Ninety-seven federal lawsuits in which plaintiffs allege that three incretin-based diabetes drugs caused their pancreatic cancer were centralized Aug. 26 by a federal judicial panel into a multidistrict litigation in the U.S. District Court for the Southern District of California (In Re:  Incretin Mimetics Products Liability Litigation, MDL Docket No. 2452, JPMDL). 

(Order available.  Document #28-130905-002R.) 

The drugs and manufacturer/defendants are Januvia, made by Merck Sharp & Dohme Corp.; Byetta, co-marketed by Amylin Pharmaceuticals LLC and Eli Lilly and Co.; and Victoza, made by Novo Nordisk Inc. 

The Judicial Panel on Multidistrict Litigation sent 53 cases and 44 potential tag-along cases to Judge Anthony J. Battaglia after finding that the cases involve common questions of fact and that centralization will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.  It said centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings, particularly with respect to expert witnesses, and conserve the resources of the parties, their counsel and the courts. 

Exception To Rule 

The panel noted that it is “typically hesitant” to centralize litigation against multiple, competing defendants that make similar products.  “Plaintiffs in the case before us, however, make highly similar allegations about each of the four drugs that manage blood insulin levels and the propensity of the drugs to cause pancreatic cancer,” the panel wrote. 

“Several plaintiffs took more than one of the drugs at issue, which suggests that discovery specific to the plaintiffs in those cases will involve many of the same or substantially similar documents and witnesses,” the JPMDL continued.  “Moreover, the involved defendants all support centralization.” 

The panel said there are substantial efficiencies to be gained by having all allegations regarding the class of drugs in a single forum.  It added that the transferee judge has discretion to use a number of techniques to accommodate any individual issues. 

The panel said the District Court “stands out as an appropriate transferee forum for this litigation” because a majority of the cases, including the first-filed ones, are there, and Judge Battaglia is presiding over them.  In addition, it said the district enjoys the support of all responding plaintiffs and defendants, including Amylin, which developed Byetta in the district and has offices there. 

Case Caption Changed 

The defendants asked that the MDL’s caption be changed from In Re:  Incretin Mimetics Products Liability Litigation.  Merck, Amylin and Lilly suggested In Re:  GLP-1/DPP-4 Products Liability Litigation, to reflect the two different types of incretin mimetics, glucagon-like peptide-1s (GLP-1s) and dipeptidyl peptidase-4 (DPP-4s). 

Novo Nordisk suggested In Re:  Incretin-Based Therapies Products Liability Litigation, and the panel agreed that caption “appears to best convey the subject matter of these cases — whether the use of certain incretin-based therapies (which regulate blood insulin levels by either (1) mimicking the incretin hormone GLP-1 or (2) inhibiting the effect of the enzyme DPP-4 leads to the development of pancreatic cancer.” 

Judge Battaglia, 63, was a federal magistrate judge for 18 years before being nominated for judgeship by President Obama.  He presides over the Sony Game Network consumer data security breach MDL. 

The Southern District is home to seven other MDLs, including the Hydroxycut MDL. 

Causation Unsettled, Disputed 

The defendants dispute that their drugs cause pancreatic cancer but supported an MDL. 

The Food and Drug Administration is reviewing data that suggest the drugs cause pancreatitis or pancreatic cancer.  A committee of the European Medicines Agency in July said it completed its review and could not agree that the drugs cause either condition. 

U.S. Judge Kathryn H. Vratil of the District of Kansas, Circuit Judge Marjorie O. Rendell of the Third Circuit U.S. Court of Appeals, U.S. Judge Lewis A. Kaplan of the Southern District of New York, U.S. Judge Paul J. Barbadoro of the District of New Hampshire, U.S. Judge Charles R. Breyer of the Northern District of California and U.S. Judge Sarah S. Vance of the Eastern District of Louisiana comprised the panel. 

The moving plaintiffs are represented by Ryan L. Thompson and Mikal C. Watts of Watts Guerra in San Antonio. 

Defense Counsel 

Merck is represented by Douglas R. Marvin and M. Elaine Horn of Williams & Connolly in Washington. 

Lilly is represented by Nina M. Gussack  of Pepper Hamilton in Philadelphia.  Amylin is represented by Richard B. Goetz of O’Melveny & Myers in Los Angeles. 

Novo Nordisk is represented by Raymond M. Williams of DLA Piper LLP (US) in Philadelphia and by Loren H. Brown and Heidi L. Levine of DLA Piper in New York. 

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