Plaintiff’s Motion for Summary Judgment Denied in Benicar MDL

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US District Judge Robert B. Kugler in Camden, New Jersey, denied a motion for summary judgment filed by plaintiffs in Benicar Product Liability Litigation in MDL 2606, ruling that 14 exhibits based on defendants’ depositions or documents did not show that the company was liable.

The plaintiffs submitted a request to file a motion for partial summary judgment on the issue of general causation, asserting that the exhibits are defendants’ admissions of general causation that show that defendants’ pharmaceuticals caused sprue‐like enteropathy (SLE). The case is In Re: Benicar (Olmesartan), Case No. 15‐2606. SLE symptoms, which include nausea, vomiting, diarrhea and weight loss.

The FDA concluded in 2013 that Benicar, a drug commonly prescribed to control blood pressure, was responsible for 23 serious reports of health related problems, which in some cases required hospitalization. Following the release of the FDA warning, Daiichi, and Forest continued manufacturing and promoting Benicar to consumers and their doctors, despite the fact that it had been blacklisted as a dangerous drug.

1,900 plaintiffs

The MDL involves about 1,900 plaintiffs, who ingested defendants’ olmesartan‐containing prescription drugs  to alleviate hypertension.  The defendants are Daiichi Sankyo, Inc., Daiichi Sankyo Co., Ltd., Daiichi Sankyo U.S. Holdings, Inc., Forest Laboratories, LLC, Forest Laboratories, Inc., Forest Pharmaceuticals, Inc., and Forest Research Institute, Inc.

In parallel litigation, 76 cases about Benicar have been filed in multicounty litigation New Jersey state courts in Atlantic County.

The plaintiffs argued that the 14 exhibits, which are excerpts of defendants’ deposition testimony or defendant‐produced documents, were admissions that defendants generally caused plaintiffs’ injuries.

But Judge Kugler wrote, “Plaintiffs’ request lacks not only an explanation as to how these summaries and excerpts constitute incontestable facts upon which to base a summary judgment motion but also any jurisprudential support that defendant alleged admissions during discovery in and of themselves properly substitute for expert testimony to demonstrate general causation.”

“No exhibit or combination can resolve the inevitable jury speculation as to the complex biochemical, biological, and epidemiological information that underpins the general causation question here,” the judge wrote.

To date, plaintiffs have taken at least 20 depositions of present and former Daiichi U.S. employees and eighteen 18 depositions of present and former Daiichi Japan employees.  The first phase of fact discovery regarding causation issues was all but completed by September 30, 2016.

The litigation has now entered the next phase with plaintiffs’ causation expert reports due November 30, 2016, defendants’ expert reports due January 31, 2017, expert depositions to completed by February 28, 2017, and Daubert and summary judgment motions due by March 31, 2017. The date for the Daubert hearing has not yet been set.

 

Larry Bodine

Attorney Larry Bodine is Editor of Mass Tort Nexus, and the Editor of The National Trial Lawyers. He is the former Editor in Chief of Lawyers.com and the American Bar Association Journal. He is a cum laude graduate of both Seton Hall University Law School and Amherst College.

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