The U.S. District judge presiding over all Lipitor diabetes cases filed throughout the federal court system has issued a show cause order, requiring plaintiffs to demonstrate why their failure to warn lawsuit against Pfizer should not be dismissed after summary judgment was granted in two bellwether cases, excluding expert witness testimony on general causation.
More than 3,000 women nationwide have filed product liability lawsuits against Pfizer in recent years, maintaining that they developed diabetes due to side effects of Lipitor, and alleging that the drug maker failed to adequately warn consumers or the medical community about the risks associated with the popular cholesterol drug.
Since early 2014, Lipitor cases filed in federal district courts nationwide have been consolidated as part of a multidistrict litigation (MDL) before U.S. District Judge Richard Gergel in the District of South Carolina, for coordinated discovery and to avoid conflicting rulings during pretrial proceedings.
Following completion of generic discovery into issues that apply to all cases, the parties have been preparing a small group of “bellwether” cases for early trial dates, which were designed to help gauge how the court will rule on certain evidentiary issues and how juries may respond to testimony that is likely to be repeated throughout the cases. However, following a recent decision to grant summary judgment motions filed by Pfizer in two cases, it appears unlikely that Judge Gergel will allow any claims to go before a jury.
Judge Gergel recently excluded expert witness testimony on general causation regarding the link between Lipitor and diabetes with dosages less than 80 mg, leaving two bellwether plaintiffs without sufficient evidence to support that their diabetes diagnosis was caused by Lipitor. Therefore, summary judgment was granted in the cases on December 29.
In an Order to Show Cause (PDF) issued on January 3, Judge Gergel indicated that any remaining plaintiffs with Lipitor diabetes cases pending in the MDL must explain why the Court should not grant summary judgment in their case. In addition, a separate case management order (PDF) was issued the same day, suspending the direct filing of new cases in the Lipitor MDL.
“From the beginning of this MDL, the parties have agreed that Plaintiffs must prove both general and specific causation as elements oftheir claims. General causation is whether a substance is capable of causing a particular injury or condition (in this instance, whether Lipitor is capable of causing diabetes); specific causation is whether the substance caused the injury of the particular plaintiff at issue,” Judge Gergel wrote. “Here, if Lipitor is not capable of causing diabetes, it follows that it is not the cause of diabetes in particular plaintiffs.”
Plaintiffs have been given 15 days from the issuing date of the show cause order to produce expert testimony on specific causation, and 30 days to respond if they believe they can survive summary judgment based on non-expert evidence or general or specific causation not previously addressed by the court.
Plaintiffs are continuing to pursue appeals on the various rulings by Judge Gergel that excluded critical expert witness testimony.