Centralization of Farxiga Lawsuits Opposed by Drug Makers

Bristol-Myers Squbb and AstraZeneca are opposing the creation of a multidistrict litigation (MDL) for all Farxiga lawsuits brought throughout the federal court system, indicating that the cases will involve too many individual factors and that there are currently too few complaints pending to justify the establishment of coordinated discovery and pretrial proceedings before one judge. 

The drug makers face a growing number of product liability claims brought in recent months, each involving similar allegations that insufficient warnings were provided for the new-generation diabetes drug, withholding information from users and the medical community about the potential side effects of Farxiga. The medication is part of a new class of diabetes treatments, known as sodium glucose cotransporter-2 (SGLT-2) inhibitors, and it has been linked to reports of diabetic ketoacidosis, kidney failure and other problems.

Similar allegations have been raised in dozens of Invokana lawsuits filed by users of this competing SGLT2 inhibitor, which was the first member the class approved in the U.S., and has been the biggest seller. Although the U.S. Judicial Panel on Multidistrict Litigation (JPML) established coordinated pretrial proceedings for all Invokana injury cases in December 2016, cases involving use of Farxiga or other SGLT2 inhibitors were excluded from that MDL.

Early last month, a group of plaintiffs filed a request with the U.S. JPML, seeking to establish a separate Farxiga MDL for cases filed against Bristol-Myers Squibb and AstraZeneca, indicating that there are currently at least 18 cases pending in six different U.S. District Courts nationwide. In addition, as Farxiga injury lawyers continue to review and file cases in the coming months and years, the size of the litigation is expected to continue to increase.

In complex pharmaceutical litigation, where a large number of complaints are brought by individuals who suffered the same or similar injuries from the same medication, it is common for the cases to be coordinated as part of a federal multidistrict litigation (MDL) to reduce duplicative discovery into common issues raised in the cases, avoid contradictory pretrial rulings from different judges and to serve the convenience of the parties, witnesses and the judicial system.

Despite the mounting Farxiga cases, the drug makers filed a response (PDF) opposing centralization on February 24, indicating that the number of cases currently pending is not sufficient to justify formal consolidation. In addition, the defendants attempt to argue that causation in the claims will be heavily based on each individual Plaintiff’s medical history, even though the same circumstances are present in nearly every other mass-tort litigation centralized by the U.S. JPML.

“The nineteen cases require application of the laws of eleven different states. The individualized concerns of each case will eclipse any common questions,” the defendants’ response claims. “Moreover, centralization would likely result in more cases being filed because complaints would not be subject to the same level of scrutiny at the outset.”

If an MDL is formed for the Farxiga litigation, the drug makers argue that the cases should be consolidated in the District of Delaware or the Southern District of New York.

The U.S. JPML is likely to consider oral arguments on the motion during an upcoming hearing session scheduled for May 25, in San Antoinio, Texas.