Pancreatic Cancer Lawsuits Over Januvia, Byetta and Victoza Not Set For Bellwether Trials Until 2020

After a federal appeals court’s reinstated more than 700 Byetta lawsuits, Januvia lawsuits, Janumet lawsuits, and Victoza lawsuits pursued on behalf of former users of the diabetes drugs diagnosed with pancreatic cancer, the U.S. District Judge who previously dismissed the litigation has adopted a new schedule for the revived litigation, which indicates the first case may not go before a jury until January 2020.

Byetta, Victoza, Januvia and Janumet are all part of a popular class of diabetes medications, known as increatin mimetics, which have been linked to an increased risk of pancreatitis. Plaintiffs maintain that the drug makers knew this may result in the development of pancreatic cancer in many cases, yet failed to warn consumers and the medical community.

Given similar questions of fact and law raised in cases 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 granted a motion for summary judgment filed by the drug makers in 2015, finding that the claims were preempted by federal law, since he believed there was sufficient evidence to establish that the FDA would not have approved any request by the drug makers to add pancreatic cancer warnings to the drug labels.

The U.S. Court of Appeals for the Ninth Circuit overturned that ruling, reinstating the lawsuits and remanding the cases to Judge Battaglia for coordinated pretrial proceedings, which had been paused for about two years.

In a case management order (PDF) issued on March 21, Judge Battaglia adopted a discovery schedule proposed by the drug makers for discovery and another round of pretrial motions on general causation and preemption issues, before any individual cases will be allowed to go before a jury.

The order calls for parties to file challenges to the admissibility of certain expert witnesses and another round of summary judgment motions by December 11, 2018. The parties will then finalize the protocol for selecting a small group of bellwether cases by December 14, 2018, indicating that the first test case will go before a jury in January 2020.

Earlier this month, the Plaintiffs had filed a proposal (PDF), which argued that the defendants’ plan would unnecessarily lengthen the pretrial process and delay justice for plaintiffs. In light of the findings by the Ninth Circuit Court of Appeals, plaintiffs argued the schedule should eliminate the need for debate over whether summary judgment on preemption claims is applicable.

“Their plan would once again postpone core discovery and bellwether trials indefinitely, while they pursue the same arguments that failed before,” the plaintiffs’ proposal states. “Once is enough. Plaintiffs have a right to the just, speedy, and inexpensive determination of their claims, and it is time for Plaintiffs to be provided the full discovery to which they are entitled.”

In complex pharmaceutical litigation, where large numbers of individuals raise common allegations that they suffered the same or similar injuries, it is common for the court to push early bellwether trials to help the parties gauge how juries will respond to certain evidence and testimony that may be presented throughout hundreds of cases.

Following additional discovery in the MDL and eventual bellwether trials, if the parties fail to reach a settlement for large numbers or cases, or otherwise resolve the litigation, the MDL Court will likely consider remanding cases back to U.S. District Courts nationwide for individual trial schedules.