Valsartan Cancer Lawsuits To Be Set for First Bellwether Trial, Instead of Third-Party Payor Claim

The U.S. District Judge presiding over all federal Valsartan lawsuits has postponed the start of the first bellwether trial, which was expected to begin this month, and held a status conference today to discuss the selection of a personal injury claim that will now be the first to go before a jury, involving a plaintiff diagnosed with cancer following exposure to the recalled blood pressure drug.

Valsartan is the generic name for the blood pressure drug Diovan, but it became the subject of a nationwide mass tort litigation after many versions of the medication were pulled from the market in late 2018, due to changes in the generic drug manufacturing process that caused pills to be widely distributed with high levels of N-nitrosodimethylamine (NDMA), N-nitrosodiethylamine (NDEA) and other cancer-causing chemical byproducts.

As a result of the generic drug manufacturing problems, lawsuits have been filed throughout the U.S. court system, including both class action claims brought on behalf of third party payers, as well as Valsartan cancer lawsuits brought by former users diagnosed with stomach cancer, liver cancer, esophageal cancer, prostate cancer, pancreatic cancer and other injuries.

Since 2019, all Valsartan claims filed in federal court have been consolidated in the U.S. District Court for the District of New Jersey for coordinated discovery and pretrial proceedings.

The litigation was originally assigned to U.S. District Judge Robert Kugler, who scheduled a third party payor claim to be the first bellwether case to go to trial, to help the parties gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation. However, following Judge Kugler’s retirement earlier this year, the Valsartan litigation was transferred to U.S. District Judge Renee M. Bumb, who rescheduled the first trial to begin on October 28.

On October 10, Judge Bumb issued a text-only order on the court docket, announcing the postponement of that third party payor claim, and it now appears the Court will move forward with setting a Valsartan cancer lawsuit to be the first claim to go before a jury.

Valsartan Bellwether Trial Scheduling Conference

Last week, a Special Master Scheduling Order (PDF) was issued, setting a case management order for Tuesday, October 22 at 11:00am, to discuss the selection of a personal injury claim for the first bellwether trial. The parties were told to be prepared to dsicuss the identification of bellwether cases, what order the cases will be tried in and the number of bellwether trials that will be set, as well as any remaining fact discovery or other pretrial issues that need to be addressed.

Competing agendas for the case management conference were submitted by Plaintiffs (PDF) and Defendants (PDF) yesterday, outlining their respective positions on how the litigation should now move forward.

Plaintiffs indicate that the first bellwether trials should involve cases with the two injuries most commonly raised in valsartan lawsuits: liver cancer and colorectal cancer.

“This MDL has been pending for over five years, and the personal injury plaintiffs either have cancer or have since passed away,” the plaintiffs wrote. “Time is of the essence for these plaintiffs, who eagerly await their day in court.”

The letter also urges Judge Bumb to consider focusing on multi-plaintiff trials, which would allow juries to consider more than one plaintiffs’ injuries and circumstances at once.

On the other hand, defendants call for the selection of six bellwether trials from the current pool of 28 lawsuits selected several years ago for case specific discovery and workup. The defendants indicated they oppose the scheduling of any multi-plaintiff bellwether trials.

While the outcome of these bellwether trials will not have any binding impact on other remaining claims, they will be closely watched by lawyers involved in the litigation and could help the parties reach Valsartan cancer settlements in other claims. If the parties are unable to resolve the litigation following any bellwether trials held in the MDL, it is expected that Judge Bumb may begin remanding large numbers of claims for individual trial dates throughout the federal court system.