Status of Benicar Claims to be Discussed with MDL Judge During Conference

A status conference is scheduled for today in the federal litigation for all Benicar injury claims brought by individuals nationwide who allege that the makers of the hypertension drug failed to adequately warn that the medication may cause severe diarrhea and other gastroinstestinal problems.

Since April 2015, complaints filed throughout the country over the side effects of Benicar have been consolidated and centralized before U.S. District Judge Robert Kugler in the District of New Jersey, as part of a federal MDL or multidistrict litigation.

There are already more than 1,000 lawsuits pending in the Benicar MDL, and lawyers involved in the litigation are scheduled to meet with Judge Kugler today for a status conference.

According to proposed joint agenda (PDF) submitted on Monday, the Court is expected to discuss the growing number of cases on the docket, coordination of the federal litigation with state court Benicar claims, initial discovery issues that have arisen and the process for selecting a group of “bellwether” cases that will be scheduled for early trial dates.

All of the claims raise similar allegations that Daiichi Sankyo and Forest Laboratories failed to adequately warn consumers and the medical community about the potential link between Benicar and diarrhea symptoms that may surface months or even years after first use of the medication, which are associated with a medical condition known as sprue-like enteropathy.

As a result of the chronic diarrhea, many of the plaintiffs indicate that they have been left with long-term gastrointestinal damage known as villious atrophy from Benicar, which involves chronic malnutrition and dehydration.

Benicar Bellwether Trial Selection Process

While the number of claims continues to increase each month, one of the biggest issues that will be presented to Judge Kugler involves how the bellwether process should be established.

In complex pharmaceutical litigation, where a large number of plaintiffs allege that they suffered the same or similar injuries after using the same medication, it is common for a series of early trial dates to be held to help gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation. However, plaintiffs and the drug makers have very different opinions about how the Benicar bellwether cases should be selected.

According to the joint statement, plaintiffs propose that each side select nine representative Benicar claims, which would be designed to present factual scenarios similar to those in most of the cases. Plaintiffs suggest that those 18 claims should go through initial discovery before each side selects six cases to proceed to a bellwether trial pool. The Court would then select three of the cases identified by each party for a total of six cases that would be eligible for eventual bellwether trials.

In contrast, attorneys for the drug makers are urging Judge Kugler to establish a process where bellwether Benicar claims are selected randomly, without regard to the underlying facts of the case. The defense suggests that process is necessary to prevent either side gaming the system to put the most advantageous cases before a jury first.

While the outcomes of these bellwether trials will not be binding on other claims, they often help shape the litigation and may promote Benicar settlement agreements that would avoid the need for hundreds of individual cases to go before juries.