Lawyers in Suboxone Dental Lawsuits Fail To Reach Agreement on Bellwether Selection Process

In an update submitted on negotiations for selecting bellwether Suboxone dental lawsuits, plaintiffs’ lawyers warn that the lack of progress may lead to a “lengthy” MDL.

Suboxone tooth decay lawyers indicate that they have again reached an impasse on deciding how to proceed with choosing a group of representative cases to prepare for a series of early test trials, which are designed to help the parties negotiate a settlement that would prevent thousands of individual claims from having to go before juries in the coming years.

There are currently more than 11,000 Suboxone dental lawsuits being pursued by former users of the opioid addiction treatment, each raising similar allegations that they were left with devastating tooth decay from Suboxone film, which was introduced in 2010 and has been found to degrade tooth enamel, resulting in lost or broken teeth, as well as the need for substantial dental treatments.

In June 2022, the U.S. Food and Drug Administration required a warning label update about Suboxone tooth decay side effects, after identifying hundreds of complaints involving problems experienced by users. However, plaintiffs maintain that they may have avoided permanent damage and costly dental treatments if earlier warnings and instructions had been provided by the drug maker.

Since February 2024, all Suboxone lawsuits over the tooth decay risks have been centralized as part of a federal multidistrict litigation (MDL) before U.S. District Judge Philip Calabrese, for coordinated discovery and pretrial proceedings in the Northern District of Ohio.

Judge Calabrese has called on the parties to develop plans to help identify a small group of Suboxone dental injury claims that are representative of the litigation as a whole, to serve as bellwether test cases for early jury trials. These trials are intended to gauge how juries will respond to evidence and expert testimony likely to be presented throughout the litigation, in the hopes of reaching a settlement to resolve the litigation instead of holding 10,000 expensive trials in courts nationwide.

However, according to an update (PDF) submitted by the Plaintiffs’ Leadership Committee (PLC) on February 5, the parties have been unable to agree on the selection process for those potential bellwether cases.

The update indicates that the impasse is partially linked to delays in the defendant’s discovery process.

“As the PLC has communicated to Defendants, the PLC’s proposal and ability to be flexible in these negotiations is contingent on Defendants’ willingness to make proportional progress on Defendant-centered discovery,” the PLC wrote. “The lack of progress on that front portends a lengthy MDL.”

The plaintiffs indicate that defendants have yet to produce “meaningful” amounts of discovery documents, indicating that the defendants have offered a “piecemeal” approach to the discovery process that will cause delays in the litigation.

“Defendants’ production schedule—unlike that directed towards Plaintiffs—rests on some amorphous plan to supply a ‘rolling production’ of custodial documents where the production, at some unknown point in the future, will be deemed complete,” the PLC noted. “Not only does Defendants ‘rolling production’ proposal inject delay into deposition practice—given the PLC cannot start to prepare for, let alone take, corporate depositions until it knows it possesses the entirety of a custodian’s file— but it is also fundamentally unfair.”

Plaintiffs’ Suboxone Dental Lawsuit Bellwether Proposal

Since the lawyers have been unable to reach an agreement, Plaintiffs submitted their own proposal for bellwether protocols with the new update. The plan calls for the initial bellwether pool to be composed of cases filed on or before October 7, 2024, with 100 eligible cases randomly selected to undergo case-specific bellwether discovery.

After that initial investigation, that list would be narrowed down to 40 Suboxone dental lawsuits, with plaintiffs and defendants choosing 15 each, and another 20 being randomly selected. The parties would then conduct additional discovery, and eventually identify three cases each to serve as prospective bellwether trial cases by August 3, 2026.

While the outcome of any early bellwether trial dates in the MDL will not have any binding impact on remaining claims, the average payouts awarded by juries may have a significant impact on future Suboxone tooth decay settlements the drug maker may offer to avoid the need for each individual lawsuit to go before a jury in the future.