Plan For Additional Abilify Bellwether Trials to be Reviewed at MDL Conference

Next week, the U.S. District Judge presiding over all federal Abilify gambling lawsuits will meet with parties involved in the litigation and discuss how additional bellwether trials should be scheduled, including a proposal to start putting claims involving multiple plaintiffs before the same jury in consolidated trials.

Bristol-Myers Squibb and Otsuka Pharmaceuticals currently face more than 400 product liability lawsuits over failure to warn about the risk of compulsive behavior problems caused by Abilify, with each of the complaints raising similar allegations that the drug makers withheld information from users and the medical community that may have allowed them to avoid devastating gambling loss and other damages from destructive behavior that started while using the atypical antipsychotic.

Plaintiffs maintain that the drug makers knew or should have known about the link between Abilify and gambling addictions, which may suddenly emerge shortly after beginning to use of the drug or increasing the dose. If proper warnings had been provided, plaintiffs claim that they may have recognized the urges to gamble, shop, engage in risky sexual activity or other compulsive behaviors.

Given similar questions of fact and law raised in complaints filed throughout the federal court system, the cases have been centralized before U.S. District Judge Casey Rodgers in the Northern District of Florida, as part of a federal MDL, or multidistrict litigation, which is designed to reduce duplicative discovery into common issues, avoid conflicting pretrial rulings and service the convenience of witnesses, parties and the judicial system.

Judge Rodgers previously established an aggressive bellwether program, where a small group of cases are being fast tracked for early trial dates to help gauge how juries may respond to certain issues and testimony that will be repeated throughout the litigation, which are expected to begin in June 2018.

In a case management order (PDF) issued on Monday, Judge Rodgers indicated that the parties should be prepared to discuss whether a second trial pool is necessary during a status conference set for January 18, as well as what such a process would look like. The Court will also discuss a proposal made by plaintiffs to start holding multi-plaintiff trials.

In a motion (PDF) filed on January 5, plaintiffs argued that the facts and circumstances raised in the claims are similar enough to warrant combining multiple plaintiffs together for trial, to allow the court to work through the large number of claims awaiting trial.

“The expert witnesses and evidence that will be presented at trial to establish whether Abilify may cause compulsive behaviors such as gambling (general causation), when defendants should have been or became aware of an association between Abilify and compulsive behaviors, how Abilify was labelled and marketed, and other essential elements of these cases, will likely be nearly identical for all cases,” the motion states. “Although some case-specific evidence will also be introduced in litigating each plaintiffs’ claims, a large amount of nearly identical evidence is likely to be introduced across cases.”

The drug makers filed opposition (PDF) to the plaintiffs’ motion on the same day, arguing that consolidating cases defeats the purpose of having bellwether trials, which is designed to help the parties gauge how juries will respond to the evidence and testimony that will be repeated throughout a large number of claims.

“Conducting a trial that involves several Plaintiffs’ unique medical and behavioral histories, risk factors, and claimed injuries would make it impossible to extrapolate a verdict to any particular segment of the pool,” the defendants argue. “And consolidating the cases will allow Plaintiffs to bury their weakest cases, and improperly ratchet up the perceived strength of the litigation as a whole.”

While the outcomes of these early trials are not binding on other plaintiffs, they will be closely watched by those involved in the litigation, and may influence eventual negotiations to reach Abilify settlements that would avoid the need for hundreds of separate trial dates nationwide.

As Abilify lawyers continue to investigate and review additional gambling claims involving former users of the medication, it is widely expected that the size and scope of the litigation will continue to increase, likely involving several thousand lawsuits that will eventually need to be addressed.

Following all bellwether trials scheduled in the federal MDL, if the parties fail to settle Abilify gambling cases or otherwise resolve the litigation, Judge Rodgers is likely to start remanding individual claims back to U.S. District Courts nationwide for trial management.