Byetta, Januvia Pancreatic Cancer Plaintiffs Facing Death Can Testify Early

In the federal litigation for all pancreatic cancer lawsuits filed against the makers of Byetta, Januvia and other incretin mimetic diabetes drugs, a process has been established that will allow plaintiffs approaching the end of their life to schedule In Extremis depositions to preserve their testimony for use at trial.

In the federal court system, more than 150 Byetta lawsuits, Januvia lawsuits, Janumet lawsuits and Victoza lawsuits involving plaintiffs diagnosed with pancreatic cancer have been centralized for pretrial proceedings as part of an MDL or Multidistrict Litigation.

All of the complaints involve similar allegations that the makers of the popular diabetes drugs failed to adequately research the medications or provide sufficient warnings for users and the medical community about the risk of pancreatic cancer.

The survival rate for pancreatic cancer is only 31% over the first six months following a diagnosis, with the survival rate dropping to 14% after a year and only 2% of pancreatic cancer patients are alive five years following a diagnosis, according to data from the Surveillance, Epidemiology and End Results (SEER) database of the National Cancer Institute.

As the litigation remains in the early stages of organization and discovery, a large number of the complaints filed by individuals throughout the United States are likely to become Byetta wrongful death lawsuits and Januvia wrongful death lawsuits as plaintiffs pass away before their cases get to trial.

In an Order (PDF) issued November 5, U.S. Magistrate Judge Mitchell D. Dembin outlined a protocol that allows plaintiffs to schedule early depositions when they are “reasonably near the end of life.”

If a Plaintiff wishes to preserve testimony, their lawyer must notify Defense attorneys in writing, explaining the nature of the Plaintiff’s condition and their competency to testify. The deposition may proceed upon fourteen (14) days notice, so long as the Plaintiff has provided certain information about their case, including a completed Plaintiff Fact Sheet, certain medical records involving the prescription of the medication and diagnosis of pancreatic cancer, as well as pharmacy records.

If attorneys for the drug maker wish to take a discovery deposition before the In Extremis deposition, they may elect to do so, according to the order.

So long as plaintiffs comply with the procedures established in Judge Dembin’s order, it is not necessary to request an emergency hearing before proceeding with the deposition. If Defendants have a good faith objection to the deposition, Judge Dembin has indicated that an emergency notice to quash the deposition may be filed, so long as it is brought more than two days before the scheduled deposition date. If the objection is overruled, the In Extremis deposition will proceed at the date, time and location for which it was originally scheduled.

Diabetes Drug Pancreatic Cancer Litigation

It will likely be several years before the first trial dates are held in the pancreatic cancer litigation over Byetta, Januvia and other incretin mimetics. The organizational structure of the MDL is still being established, as attorneys were just appointed to serve in various leadership roles in late October.

As Byetta and Januvia lawyers continue to review and file additional cases in the coming months and years, it is ultimately expected that there could be a few thousand lawsuits centralized in the federal litigation.

The medications are widely used among individuals with type 2 diabetes, working by mimicking the incretin hormones that the body usually produces to naturally stimulate the release of insulin in response to a meal.

Byetta (exenatide) was the first member of the incretin mimetic class approved by the FDA, introduced by Amylin Pharmaceuticals in 2005 as a twice daily injection. Januvia (sitagliptin) was introduced by Merck the following year as an oral medication, and a combination pill containing Januvia and the older diabetes medication metformin was introduced in 2007 under the brand name Janumet. Victoza (liraglutide) was introduced by Novo Nordisk in 2010 as a daily injection.

In the federal court system, the cases have been assigned to U.S. District Judge Anthony J. Battaglia in the Southern District of California to reduce duplicative discovery across a large number of cases, to avoid conflicting pretrial rulings from different judges and to serve the convenience of the parties, witnesses and the courts.

The next status conference before Judge Battaglia is scheduled for November 21.