Gadolinium Litigation Judge May Not Preside Over First Trials

The federal judge overseeing the consolidated Gadolinium litigation involving cases filed on behalf of those who have developed Nephrogenic Systemic Fibrosis after receiving an MRI with contrast, has indicated that he will not preside over any of the first trials unless he is permitted to preside over an equal, or near equal, number of cases chosen by the plaintiffs and defendants.

Over 250 Nephrogenic Systemic Fibrosis lawsuits filed in federal courts throughout the United States have been consolidated and centralized for pretrial litigation in an MDL, or multidistrict litigation, in the U.S. District Court for the Northern District of Ohio before Judge Dan Polster.

The are being coordinated under a federal procedure which allows the courts to transfer cases from different districts throughout the country to one judge for discovery and pretrial proceedings where there are common issues in the cases.

All of the gadolinium lawsuits involve allegations that the makers of five different types of MRI contrast agents that contain gadolinium failed to adequately test their products or warn that individuals could face a risk of developing nephrogenic systemic fibrosis, a rare progressive condition which leads to the hardening and thickening of the skin, severely restricting movements and ultimately resulting in death in many cases.

The purpose of the MDL is to prevent inconsistent pretrial rulings, avoid duplicative discovery and serve the convenience of the parties, witnesses and the Court.

Under the MDL rules, if the cases do not settle or otherwise resolve during pretrial litigation, they are to be returned to the court in which they were filed. The MDL judge is only able to preside over a trial if the case was filed in the court where the judge sits or if all parties to the lawsuit waive personal jurisdiction and venue, known as a Lexecon waiver.

As part of the pretrial proceedings in the litigation, Judge Polster has established a Case Management Order which calls for gadolinium lawyers on each side to select 10 NSF lawsuits which will go through case-specific discovery in preparation for trial.

The parties will later be able to narrow the 20 cases down to a total of 10 which will be scheduled for early trials, known as bellwether trials since they are designed to litigate issues that will come up throughout other pending cases. The Case Management Order indicates that each side will select five of the 10 and the first trial will be scheduled with the plaintiffs’ highest ranked case, followed by the defendants’ highest ranked case.

The bellwether gadolinium trails are currently on track to begin towards the end of 2009 or early 2010.

Out of the 20 cases selected as eligible trial pool cases, the plaintiffs have executed Lexecon waivers in all cases, but the defendants have only agreed to have the 10 cases they selected go to trial before Judge Polster.

During an unscheduled telephone conference with liaison counsel on February 3, 2009, the Court notified the parties that, while they are under no obligation to waive personal jurisdiction and venue, unless both sides have the same, or close to the same, number of cases selected in which Judge Polster can preside, he will not hear any of the bellweather trials in his Court.

Judge Polster’s position will help ensure that the defendants are not able to circumvent the Court’s Case Management Order and hand-pick which of the plaintiffs’ cases will be the first to go to trial by only executing Lexecon waivers in the cases they favor.