New Cases Transferred to Multidistrict Litigation: How Experts Can Help

Multidistrict litigation is a system designed to consolidate and efficiently process large numbers of civil cases in federal court that share common issues. The purpose of the United States Judicial Panel on Multidistrict Litigation is to transfer civil actions pending in various federal districts that share common questions of fact to one federal court to coordinate pretrial proceedings. Multidistrict litigation (also referred to as “MDL”) was created to avoid duplicative discovery, to prevent inconsistent pretrial rulings, and to conserve the judicial resources. Once the centralized pretrial proceedings are completed, the civil actions are transferred back to their original district.

Multidistrict litigation handles various actions, ranging from mass tort to employment discrimination, which can involve thousands of plaintiffs. Whether an action is transferred to multidistrict litigation can have drastic consequences, therefore, the MDL docket is always worth keeping an eye on – for attorneys and litigants alike. This past April, the JPML transferred six cases to MDL courts. Each of these cases has far-reaching implications and will undoubtedly need the help of experts throughout litigation.

1) Stryker Hip Implant Products Liability Litigation

Dozens of lawsuits against Stryker Orthopaedics, a company that produces prosthetic hip replacement devices, were transferred to United Stated District Judge Indira Talwani in Massachusetts federal court (Case No. 17-MD-2768). Most of the lawsuits involve Stryker’s LFIT Anatomic CoCR V40 femoral heads, which are alleged to be susceptible to corrosion that can require surgery to remove and replace the hip implant. In August 2016, Stryker issued a voluntary recall on some hip implant devices for taper lock failures. The company requested that the MDL proceeding be limited to only lawsuits involving this recall. However, the JPML ruled that most plaintiffs did not cite the taper lock as an issue, but rather, allege problems of corrosion and metal debris caused by devices not voluntarily recalled by the company.

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As with any products liability case of a medical nature, experts in the medical field, namely, orthopedists and hip surgery specialists, will be needed to attest to the condition of the implant and its effects on the plaintiffs. A medical device specialist can ascertain whether the product was inadequately designed, or whether the plaintiffs’ particular devices were defective.

2) Smith & Nephew Birmingham Hip Implant Products Liability Litigation

Similar to Stryker’s MDL, another surgical device company, Smith & Nephew, is being sued for product defects related to their hip replacement devices. Transferred to U.S. District Judge Catherine C. Blake in the District of Maryland (Case No. 17-MD-2775), the lawsuits allege that Smith & Nephew’s Birmingham Hip Resurfacing metal hip device causes metal blood poisoning. One plaintiff alleges that she needed to undergo another surgery less than three years after the metal hip was implanted, after metal fragments were released into her body and she developed to metallosis, a condition where the metallic components in the implant scrape against one another. In 2015, the company announced a voluntary removal of the device from U.S. markets due to an unreasonably high failure rate in certain demographic groups. Among other claims in the lawsuits, the plaintiffs allege that Smith & Nephew had failed to adequately design the device.

Like the Stryker hip implant litigation, medical experts will certainly be utilized to testify to the effects that the device had on its plaintiffs. The claims against Smith & Nephew focus on metal poisoning from pieces of the device scraping against each other and releasing debris into the plaintiffs’ bodies. A toxicologist, particularly one who specializes in metal toxicity, will be needed to detect and test the amount of metallic debris in the plaintiffs, and whether the amount is considered poisonous.

3) Mirena Intrauterine Device Product Liability Litigation

Over a hundred lawsuits against Bayer, alleging that its Mirena Intrauterine Device causes brain injuries, were consolidated and transferred to United States District Judge Paul A. Engelmayer in the Southern District of New York. In early 2014, the JPML had refused to centralize nine pending lawsuits against Bayer, but have now ruled that there are enough cases to justify the consolidation. Mirena is a contraceptive implant that prevents pregnancy by releasing the hormone levonorgestrel into the uterus. Birth control containing this hormone are associated with a type of brain injury referred to as Pseudotumor Cerebri or Idiopathic Intracranial Hypertension. The injury causes fluid to build up in the skull, putting pressure on the brain and eyes. It causes migraines and optic nerve damage that can lead to blindness. Unlike other birth control, Mirena’s label does not warn about the potential injury. The lawsuits allege that Bayer failed to investigate the potential side effects of Mirena despite warning signs in clinical trials.

A slew of medical device experts will be needed to testify as to the inner workings of Mirena. Unlike other intrauterine devices, which are made from plastic and copper and do not use synthetic hormones, Mirena is made solely of plastic and relies on the release of the hormone to prevent pregnancy. Medical experts specializing in brain injuries and optic nerve damage will also likely be utilized. In addition, a failure to warn expert can testify to the inadequacy of Bayer’s warnings and how the plaintiffs’ injuries could have been avoided if they were provided proper instructions.

4) Farxiga (Dapagliflozin) Products Liability Litigation

Another product liability MDL has been transferred to the Southern District of New York last month. Lawsuits against Farxiga, a diabetes medication manufactured by AstrZeneca, alleged to cause serious medical conditions that can lead to hospitalization or death, have been consolidated before United States District Judge Lorna G. Schofield. The lawsuits all commonly allege that the drug causes diabetic ketoacidosis, kidney failure, heart attacks, and other serious injuries. Farxiga is a relatively new type of medication referred to as sodium glucose cotransporter-2 inhibitors (SGLT-2). The drug affects kidney function. In 2015, the U.S. Food and Drug Administration required Farxiga to include diabetic ketoacidosis warnings on its labels, instructing patients to seek medical attention if they notice certain symptoms. In 2016, a kidney damage warning was also added to the label after a large number of patients reported kidney issues while on the medication. The lawsuits allege that such warnings were inadequate and that the manufacturers knew, or should have known, about the dangers Farxiga posed to its patients.

Due to the high prevalence of diabetes in the United States and the numerous areas that the disease can affect, there are an abundance of medical experts that can be utilized. Endocrinologists, cardiologists, dieticians, and optometrists can all be used to testify to the general nature of diabetes and how it may affect each area of the human body. In this case, a nephrologist, a physician who specializes in kidney care, would be particularly useful due to the kidney injury allegations.

5) Qualcomm Antitrust Litigation

Not all MDLs are products liability cases. Last month, 24 antitrust lawsuits were filed against Qualcomm, the world’s leading supplier of baseband processors (devices that manage cellular phone communications), which are now consolidated before United States District Judge Lucy H. Koh of the Northern District of California. The lawsuits allege that Qualcomm engaged in illegal price fixing of cellphone microchips. The plaintiffs, which include the Federal Trade Commission, allege that Qualcomm has excluded competitors and harmed competition by withholding its baseband processors unless a customer accepts a license with terms favorable to Qualcomm, including increased royalties the customer may pay if using a competitor’s product. Qualcomm has also refused to license its cellular standard-essential patents to its competitors.

This litigation will require experts in the fields of antitrust law, intellectual property, economics, labor, marketing, and competition. Antitrust litigation is data intensive and is highly reliant on expert testimony. It is worthy to note that the admissibility of plaintiffs’ experts in antitrust litigation has been found to be an uphill battle.

6) Chrysler-Dodge-Jeep EcoDiesel Marketing, Sales Practices, and Products Liability Litigation

Lawsuits against the U.S. subsidiary of Fiat Chrysler have been consolidated before United States District Judge Edward Chen of the Northern District of California. In January 2017, the Environmental Protection Agency and the California Air Resources Board issued notices of violation to the automobile manufacturer for allegedly failing to disclose eight Auxiliary Emissions Control Devices (AECDs) in the 3.0 liter Eco-Diesel-powered Jeep Grand Cherokee and Dodge Ram 1500 vehicles. The agencies alleges that undisclosed AECDs shut off portions of the emissions control system, causing nitrogen oxide emissions in excess of the federal emissions standards. Plaintiffs allege that Fiat Chrysler improperly marketed these vehicles as environmentally friendly, with lower emissions than other diesel engines.

First, general automobile experts will be needed to establish the basic composition of a car engine. More particularly, experts in car emissions can be used to explain emission-control systems and how the emissions from engines may be reduced. At the crux of the case is whether Fiat Chrysler violated federal and state emissions standards. Therefore, experts in emissions and air pollution will be needed to testify to the governing standards and whether Fiat Chrysler’s vehicles adhered to said regulations.