Injectafer Bellwether Lawsuits To Go Before Separate Juries Over Iron Infusion Risks

A federal judge in Pennsylvania, who is presiding over more than 80 Injectafer Lawsuits brought by individuals who suffered severe injuries after receiving the iron infusion, has rejected a request to consolidate two “bellwether” cases for trial before the same jury, indicating the move would not reap enough judicial benefits to overcome the possibility of prejudice or confusing the jury.

Injectafer is an intravenous injection administered for treatment of iron deficiency anemia. However, a growing number of product liability lawsuits allege the manufacturers failed to adequately disclose the iron infusion risks, which may cause dangeorous drops in blood phosphate levels and result in a potentially life-threatening condition known as severe hypophosphatemia (HPP).

Given common allegations raised in complaints filed in the U.S. District Court for the Eastern District of Pennsylvania, the litigation has been centralized before U.S. District Judge Wendy Beetlestone, who has the parties preparing a small group of “bellwether” cases for early trial dates to help gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the claims.

Plaintiffs first proposed consolidating two cases for the first Injectafer trial during a conference call with the Court in late June.

Although the Court initially found the plaintiffs’ position persuasive and expressed an intention to consolidate lawsuits filed by Katherine Crockett and Jennifer Krueger for a single trial, the parties were asked to file formal briefs on their respective positions.

In a motion (PDF) filed July 2, plaintiffs argued that the Crockett and Krueger cases involve common witnesses, experts and liability evidence, each involving allegations that Injectafer label warnings were deficient, and that the product was defectively designed and not adequately tested.

“[B]oth Plaintiffs allege that they experienced the same injury – Injectafer-induced severe and symptomatic hypophosphatemia – as a result of Defendants’ negligence, and both actions will be governed by Pennsylvania law,” according to the motion. “Finally…combining these two very similar trials into one will allow significant conservation of resources for the Court and Parties and, hopefully, aid in the easing of the coronavirus pandemic-induced backlog in the Eastern District of Pennsylvania.”

The drug makers named as Defendants in the lawsuits, including Daiichi Sankyo, American Regent, Inc. and Vifor (International) AG, opposed the consolidation in a response (PDF) filed days later, arguing that combining the cases would substantially prejudice their positions, confuse the jury and risk a result which may make the judgments in both cases vulnerable to reversal and retrial.

In a memorandum opinion (PDF) issued on July 26, Judge Beetlestone ultimately decided the gains in judicial economy would be likely be modest, and pointed out that consolidation would require its own time investments to ensure the risk of juror confusion and prejudice are minimized.

“If the estimated efficiency gains were substantial, Defendants’ concerns might be less compelling, given the availability of jury instruction to help reduce the risk of prejudice,” wrote Judge Beetlestone. “But where these are the first of the Injectafer cases to be tried, the estimated time savings are minimal, and two separate trials will impose little extra burden on the parties and witnesses, discretion as the better part of valor counsels that the matters should be tried separately.”

Following the initial bellwether trials, if the parties fail to negotiate Injectafer settlements or otherwise resolve large numbers of cases, the Court is expected to start scheduling dozens of additional cases for trial. In the memorandum, Judge Beetlestone did point out that rejecting the request to consolidate these two Injectafer bellwether trials does not mean that it will remain inappropriate to consider combining cases moving forward.

“Once these initial cases are tried, consolidation may prove an effective and efficient means of handling the remaining actions,” according to the memorandum.

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