JPML Agrees To Hear Oral Arguments Over Prevagen Lawsuit Consolidation

A panel of federal judges has agreed to hear oral arguments over whether to consolidate all Prevagen lawsuits filed in U.S. District Courts nationwide before one judge for coordinated pretrial proceedings.

At least five different Prevagen class action lawsuits have been filed against the manufacturer over false advertising, alleging the dietary supplement, which can cost up to $69 per bottle, is a fraud.

Prevagen was introduced in 2007, and is sold at pharmacies nationwide, including CVS, Walgreens, Rite-Aid and through Amazon. The lawsuits estimate Prevagen sales totaled $165 million from 2007 through mid-2015, alleging that print advertisements, television commercials and other marketing techniques used by the makers of the dietary supplement were intentionally misleading.

At issue is the Madison Memory Study, which involved 218 subjects who took either 10 milligrams of Prevagen or a placebo, and were assessed on nine computerized cognitive tasks. According to the lawsuits, the results failed to show a statistically significant improvement over the use of a placebo on any of those tasks.

In December, several defendants filed a motion to transfer, asking the U.S. Judicial Panel on Multidistrict Litigation (JPML) to transfer the claims to the Southern District of New York as part of a federal MDL, or multidistrict litigation. Three of the five cases have already been filed in that court.

In a hearing session order (PDF) issued on February 13, the JPML agreed to hear oral arguments on the motion at a hearing session scheduled for March 26 at the Estes Kefauver Federal Building and United States Courthouse in Nashville, Tennessee.

However, the JPML rejected a similar motion by the defendants filed in 2017. At the time, when there were only four complaints, the JPML indicated there were too few cases to justify formal consolidated pretrial proceedings.

In addition, the JPML indicated then that the claims presented in the Prevagen lawsuits are not sufficiently complex to require formal coordination as part of a federal MDL, or multidistrict litigation.

In this renewed motion, defendants argue that one advanced case expected to go to trial next week should be excluded from the consolidated proceedings, but indicate that the remaining five actions fit all of the requirements for consolidation, since they involve complex scientific questions and are complicated by their class action status.