• November 12, 2010

“Multi-district litigation” is a procedure in which lawsuits filed throughout the federal court system that are amenable to consolidated “mass” treatment are gathered up in one trial court for “pretrial proceedings.”  (The federal statute for “MDL litigation” is here.)

The cases are supposed to be remanded for trial in the districts in which the cases were originally brought rather than having trial in the MDL or “transferee” court (in theory).  (In the Lexecon case, an “MDL court” got creative and transferred cases to itself for trial but the U.S. Supreme Court nixed that.)  In practice, it is extremely rare that a case, once transferred to the MDL court, is ever remanded back to another court for trial.  In practice, as in the Levaquin cases in which the MDL court is the District of Minnesota, the MDL court may preside over a number of “bellwether cases” in which a relatively small subset of cases is somehow devised.  These cases are tried, the theory being that plaintiffs and defendants, when they see a few iterations of the thousands of cases, will be in a position to assign a value (or lack thereof) in the claims and/or defenses.

Levaquin, a brand name for the antibiotic levofloxacin and related medicines all called fluoroquinolones, “[a]lthough considered highly effective at killing certain bacteria, … are also associated with serious side effects including tendon injuries.”

According to plaintiffs, in 2001 defendants began crafting an epidemiology study  regarding tendon rupture and fluoroquinolones that diverged from other published studies on the issue in an ultimately successful attempt to forestall and even prevent European regulatory action that would have negatively affected levofloxacin sales in both Europe and the United States.  Over the past decade, there appears to have been increased concern about these medications and the communication of risk on their labels.  The label warnings have been increasingly emphatic.  Plaintiffs’ theories seem to be, in a nutshell, that the drug companies knew of the medicine’s risks and have steadfastly tried to understate or de-emphasize the risks rather than warning their customer base of the true nature of those risks.  Obviously, defendants will counter these allegations with their own explanation of the drug’s benefits and the warnings that defendants included when selling the medicine.

Judge John R. Tunheim (D. Minn.) recently decided important motions in the cases on the threshold of trial (here is one decision, for example).

Trial in these bellwether cases is the culmination of multi-year multi-million dollar litigation, some of the highest stakes litigation a civil litigator is likely to see.  For those with the time, it might be interesting to drop by for some of the 66 hours of trial time that the Court has allotted for these cases.

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