Pancreatic Cancer Lawsuits Over Byetta, Victoza and Other Diabetes Drugs Won’t Be Selected For Bellwether Trials Until Late 2020

Over the past seven years, hundreds of Byetta lawsuits, Januvia lawsuits, Janumet lawsuits, and Victoza lawsuits have been proceeding through the federal court system, alleging that the popular diabetes drugs resulted in a pancreatic cancer diagnosis. However, plaintiffs will have to continue waiting for their day in court, as the first “bellwether” claims will not be selected for trial until at least late 2020, according to recent filings.

Byetta, Victoza, Januvia and Janumet are all part of a popular class of diabetes medications, known as increatin mimetics, which were linked to a potential risk of pancreatitis about a decade ago, resulting in a number of product liability lawsuits against the drug makers. The complaints allege that the failure to warn about the potential side effects associated with the drugs resulted in the development of pancreatic cancer, which may have been prevented if earlier information had been provided for consumers and the medical community.

Given common questions of fact and law raised in complaints filed throughout the federal court system, the litigation was centralized before U.S. District Judge Anthony Battaglia in the Southern District of California in 2013.

Following coordinated discovery and pretrial proceedings, Judge Battaglia issued an order that dismissed all claims in 2015, indicating the lawsuits were preempted by federal law, since the Court found there was sufficient evidence to establish the FDA would not have approved any request by the drug makers to add an earlier pancreatic cancer warnings to the drug labels.

In December 2017, the U.S. Court of Appeals for the Ninth Circuit overturned that ruling, reinstating about 700 lawsuits, and returning the cases back to Judge Battaglia for further proceedings, which is expected to include a series of “bellwether” trials designed to help gauge how juries are likely to respond to certain evidence and testimony that is likely to be offered throughout the claims. However, before selecting a group of representative cases for trial, the Court will consider another round of motions to exclude plaintiffs’ expert witness testimony or dismiss the litigation.

In a court order (PDF) issued on December 16, Judge Bettaglia extended the deadline for the parties to submit a bellwether trial protocol, indicating that the plan for selecting a group of claims that will serve as test cases will be due 45 days after the Court issues orders on motions for summary judgement based on general causation and/or pre-emption.

According to the prior pretrial schedule issued in April 2019, the court is expected to hold hearings in June 2020, to consider oral arguments on Daubert challenges to the admissibility of certain expert witness testimony and summary judgment motions that are likely to be filed again before the first cases are allowed to go before a jury. As a result, the first claims are unlikely to go before a jury until late 2020, or 2021.