Motions to Dismiss Lawsuits Over Allergan Breast Implant Recall To Be Filed and Briefed Early Next Year

The U.S. District Judge presiding over all Allergan Biocell breast implant lawsuits indicates a briefing on the manufacturers’ motion to dismiss the master complaint filed in the litigation will take place between January and April 2021, with discovery placed on hold until the issue is resolved.

There are currently more than 400 product liability lawsuits and class action lawsuits filed throughout the federal court system over Allergan’s recalled breast implants, which were removed from the market last year after the Biocell textured design was linked to most reported cases of breast implant-associated anaplastic large cell lymphoma (BIA-ALCL).

The manufacturer faces individual claims brought by women who developed the rare cancer in the tissue surrounding the textured breast implant, as well claims on behalf of all women who received the recalled implants, which may result in the need for removal surgery or life-long medical monitoring due to the increased risk of cancer.

Given similar questions of fact and law presented in lawsuits filed in District Courts nationwide, the U.S. Judicial Panel on Multidistrict Litigation (JPML) has consolidated the claims before U.S. District Judge Brian R. Martinotti in the District of New Jersey, to reduce duplicative discovery into common issues, avoid conflicting pretrial schedules and serve the convenience of the parties, witnesses and the judicial system.

In a case management order (PDF) issued on December 15, Judge Martinotti announced discovery proceedings are on hold “pending the filing and briefing of motions to dismiss”, which take place over the next several months.

Judge Martinotti indicated the parties must meet and then tell the Court when they will each submit 15-page supplemental simultaneous briefs on the Motion to Dismiss.

After briefing on the manufacturers’ motion to dismiss, it is expected that the Court will schedule a “Science Day” for the parties to make non-adversarial presentations about the link between textured breast implants and cancer, which are designed to educate the court. Judge Martinotti indicated in the order that the scheduling of the Science Day will be addressed at a subsequent case management conference.

In complex pharmaceutical litigation, where large numbers of claims are being presented involving similar injuries associated with the same types of drugs, it is common for the Court to schedule such scientific presentations prior to ruling on pretrial matters. Typically, the parties choose experts to give lecture-style presentations to the court in non-adversarial settings, which are not admissible, discoverable, or used for any purpose other than to educate the Court. However, the precise rules of the Science Day will be decided by Judge Martinotti.

Allergan Breast Implant Recalls

The lawsuits emerged after an Allergan Biocell breast implant recall was issued in July 2019, in response to an FDA determination that nearly all cases of BIA-ALCL have been linked to this one type of device.

Although there have been concerns about the link between textured breast implants and cancer for the past few years, the manufacturer continued to sell the product and failed to notify women about the potential risk that may be associated with the Biocell design, according to allegations raised in the litigation.

Last year, the FDA released data involving at least 573 known cases of breast implant ALCL diagnosed worldwide, including at least 33 deaths. Of those, 481 have been linked to breast implants sold by Allergan, which have been involved in at least 12 of the 13 deaths where the manufacturer of the breast implant was known.

Since the recall, there has been a sharp rise in the number of lawsuits filed against Allergan over the breast implants, each raising similar allegations that the textured design was unreasonably dangerous and defective.

All pretrial proceedings will be handled by one judge, but the cases will remain individual lawsuits. If a breast implant settlement agreement is not reached while the cases are pending before Judge Martinotti, each claim may later be transferred back to its originating District Court for trial.