• 07
  • November
    2011

In our last post, we began discussing the topic of bellwether trials, which is a process by which courts select some cases out of a group of similar cases and allow that first batch of cases to be a sort of test run of the issue or issues being tried.

This process, as we mentioned, is sometimes used in dangerous drug cases where many plaintiffs have similar complaints. Currently, there are several pharmaceuticals engaged in the bellwether process.

In Early October, plaintiffs in a bellwether case against Merck & Co. in New York federal court lost the fourth of five such cases. Those plaintiffs had sued the company over allegations that the osteoporosis drug Fosamax caused jaw damage.

Those cases apparently started off at a disadvantage, however, since the District Judge only allowed cases filed before January 2005 to be among those selected for bellwether trials. After that date, though, federal regulators had ordered Merck to include warning labels on the Fosamax label concerning jaw-bone concerns. Sources said there are still over 1,600 Fosamax suits pending across the United States. Two more trials are set to take place in February and May.

Bellwether trials over Merck's Vioxx were a good example of how the system often plays out. Plaintiffs had accused the pharmaceutical of failing to warn patients of the risks of heart attack, stroke and other problems. Merck won four out of five bellwether trials over Viox, and then agreed to settle most of the cases for $4.85 billion. The company had been expected to settle at around $50 billion. So a lot is at stake in these cases.

In 2009 and 2010, Pfizer won some large bellwether cases against plaintiffs who alleged that the use of the off-label epilepsy medication Neurontin increased the risk of suicide. When Pfizer won the third and final test trial in 2010, many plaintiffs dropped their cases.

Bayer AG has an upcoming bellwether trial in January in an Illinois federal court over allegations that its birth control medications Yaz and Yasmin are responsible for heart attacks and other medical problems.

In cases of dangerous drugs, it is not uncommon for there to be a group of persons, sometimes very large, who have been injured. The bellwether process is one aspect of the larger legal process that can and does come up.

Source: Reuters, "Analysis: Corporate defendants rack up wins in "test" trials," Moira Herbst, October 31, 2011.