Process for Selecting Bellwether Nexium, Prilosec Cases Debated by Parties in PPI MDL

With more than 2,500 Nexium lawsuits, Prilosec lawsuits, Protonix lawsuits, Prevacid lawsuits and other claims over kidney injuries associated with the use of proton pump inhibitors pending in the federal court system, competing proposals for the selection of “bellwether” cases have been submitted to the U.S. District Judge presiding over the litigation.

Each of the cases raise similar claims that side effects of the heartburn drugs caused users to develop an acute kidney injury, chronic kidney disease, renal failure or other serious complications.

Nexium, Prilosec, Protonix and Prevacid are all part of the same class of medications, known as proton pump inhibitors (PPI), which are used by millions of Americans to reduce acid reflux and heartburn. However, plaintiffs allege that the drug makers have withheld important safety information from consumers and the medical community for years about the potential kidney risks.

Given common questions of fact and law raised in complaints filed in U.S. District Courts nationwide, all cases have been consolidated for pretrial proceedings as part of a federal multidistrict litigation (MDL), which is centralized before U.S. District Judge Claire C. Cecchi in New Jersey.

To help gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation, Judge Cecchi has established a “bellwether” process, where a small group of representative cases will be prepared for early trial dates.

In a recent case management order (PDF), Judge Cecchi required the parties to provide proposals regarding the selection of bellwether cases, which were submitted (PDF) on December 3.

In their proposal, plaintiffs laid out an extensive schedule for selecting eight to 12 bellwether discovery pool cases by February 28, 2019, looking for case that address a variety of issues that will make them representative of other claims in the litigation. The plan lays out an extensive schedule for discovery proceedings leading up to late July 2019, when the bellwether pool would be reduced to six cases that would be eligible for early trial dates.

Defendants submitted a competing selection plan, which calls for all cases involving a plaintiff who resides in New Jersey to complete a Plaintiff Fact Sheet and other necessary documents by December 1, which would all be part of the bellwether discovery pool. This plan calls for core discovery to be completed by June 28, 2019.

Judge Cecchi has ordered the parties to continue meeting and confering in an effort to resolve any issues regarding the bellwether process, and briefing in support of each parties respective proposal must be submitted by December 11, eight days before a status conference scheduled for December 19, at which time the Court is expected to consider the issue.

The first bellwether trial is expected to begin on September 21, 2020, according to a prior schedule provided by the Court, with additional trial dates following as needed.

While the outcome of these early bellwether trials will not be binding on other Nexium and Prilosec cases pending in the litigation, they will be closely watched, and may have a big influence on eventual settlement negotiations that would be necessary to avoid the need for thousands of individual trials nationwide.