Gastric Cancer Lawsuits Over Nexium and Other Proton Pump Inhibitors Should Be Excluded From MDL, Drug Makers Argue

As a growing number of complaints continue to be filed over failure to warn about the side effects of Nexium, Prilosec, Prevacid and other popular heartburn medications, the drug manufacturers indicate that gastric cancer lawsuits should not be centralized together with claims involving various kidney injuries during coordinated pretrial proceedings.

There are currently more than 12,300 Nexium lawsuits, Prilosec lawsuits, Protonix lawsuits, Prevacid lawsuits and other claims brought by former users of proton pump inhibitors (PPI), who indicate that they developed chronic kidney disease, acute kidney injury or other renal complications.

Given common questions of fact and law raised in complaints filed throughout the federal court system, the U.S. Judicial Panel on Multidistrict Litigation (JPML) decided in 2017 to centralize the cases before U.S. District Judge Claire C. Cecchi in the District of New Jersey, as part of an MDL, which is designed to reduce duplicative discovery into common issues, avoid conflicting pretrial rulings and service the convenience of the parties, witnesses and the judicial system.

In a letter (PDF) sent by attorneys representing the drug makers on June 12, Judge Cecchi was asked to remove at least 13 cases pending in the MDL that involve gastric cancer or stomach cancer injuries, which they claim the JPML never intended to consolidate together with the kidney injury lawsuits.

“In its order establishing this MDL, the Panel premised its decision to centralize PPI cases on the ground that they ‘share factual issues arising from allegations that taking one or more PPIs can result in kidney injury, and that defendants failed to adequately warn of the negative effects and risks of PPI use’,” the letter states. “In addition, in creating this MDL after denying a prior motion to do so, the Panel observed that the cases subject to the (renewed) MDL petition involved a narrow category of kidney-related injuries.”

While the vast majority of claims pending in the MDL involve allegations that the drug makers failed to warn about the risk of kidney problems, it is widely expected that a growing number of PPI gastric cancer claims will be filed in the coming months and years, following publication of studies that indicate long-term use of the drugs may greatly increase the risk.

The drug makers argue that the claims involving stomach or gastric cancer should be handled separately, since they involve different allegations, different science and different expert testimony. Therefore, the letter indicates that including the gastric cancer lawsuits will distract the parties and the MDL Court’s resources from the pending kidney claims.

As part of the coordinated pretrial proceedings in the MDL, Judge Cecchi has previously established a “bellwether” process where a small group of representative cases involving kidney injuries are being prepared for early trial dates, to help gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the litigation.

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 necessary to avoid the need for thousands of individual trials nationwide.