Bellwether Selection for Nexium, Prilosec Lawsuits Stalls

Thousands of plaintiffs who have filed lawsuits regarding Nexium, Prilosec, and similar medications have been looking forward to having their claims heard in court. However, the process of selecting cases for bellwether trials has hit a snag. Originally, the court instructed the involved parties to submit their final, agreed-upon plan to the court by September 5, 2019. The proposed plan was intended to outline the process for selecting the bellwether cases. However, the parties have stated that further clarification is required from the court.

About MDLs and the bellwether process

When large numbers of lawsuits are filed against common defendants with similar allegations and statements of fact, the U.S. Judicial Panel on Multidistrict Litigation (JPML) may decide to consolidate them into a multidistrict litigation (MDL). An MDL is established for the purpose of streamlining the litigation process. It helps prevent duplicative discovery and contradictory rulings across different jurisdictions by centralizing hundreds or thousands of federal lawsuits into one proceeding.

In an MDL, each plaintiff retains their right to an individual trial by jury. Following the discovery process, a handful of bellwether cases are prepared for initial trial dates. These are held to gauge jury reactions to various evidence and testimony. None of the resolutions of the bellwether trials are binding upon any other lawsuit in the MDL.

The PPI MDL

The lawsuits filed with regard to alleged complications from Nexium, Prilosec, and other proton pump inhibitor (PPI) medications had been working through the process to select the bellwether cases. The plan for selection had been proposed by U.S. District Judge Claire C. Cecchi of New Jersey during a hearing in August of 2019. This plan included the random selection of 150 cases, with each party adding an additional 10 cases to result in a bellwether selection pool of 170 cases out of the more than 13,000 lawsuits pending in the MDL.

From the 170 cases, each party was to select 15 cases to go through discovery. Each side would then remove four cases from the pool to produce a final pool of 22 cases.

The counsel for the defendants submitted a letter on September 5, 2019, that stated they were under the impression the bellwether pool should be limited to claims filed prior to May 1. The plaintiffs argued against this position in their response, which was submitted the following day. The response asserted that it was the plaintiffs’ counsel’s position that the defense was attempting to sidestep the court’s instructions.

The plaintiffs’ counsel further asked the court to mandate that each party would choose 10 bellwether cases no later than October 11. From that pool of 20, the court would finalize the bellwether selection.

Next steps in the process

It’s unclear whether the impasse in the selection of bellwether trial cases will ultimately affect the scheduling of the early trial dates. Previously, Judge Cecchi had stated that the first bellwether trial would be expected to start on September 21, 2020. The remaining trial dates would be established as needed.

Additional resources:

• Harvard Health, Proton Pump Inhibitors, https://www.health.harvard.edu/diseases-and-conditions/proton-pump-inhibitors
• MedicineNet, Proton Pump Inhibitors (PPIs) Side Effects, LIst of Names, and Uses, https://www.medicinenet.com/proton-pump_inhibitors/article.htm