Articles Posted in Drug Companies

Nexium, or esomeprazole, is a drug that is used to treat heartburn and excessive amounts of acid in the stomach. Specifically, it is used to treat duodenal and gastric ulcers, esophagitis, gastroesophageal reflux disease (GERD), and Zollinger-Ellison syndrome. Nexium is a proton pump inhibitor (PPI) that decreases the amount of acid produced in the stomach. Other drugs that are in the same class as Nexium include Prevacid and Prilosec. Approximately 15 million Americans use PPIs that are sold both as prescription and over-the-counter. Nexium sales exceed $3 billion a year.

Nexium Class Action Lawsuit Updates 

August 2022:  Defendants in the PPI MDL had moved to dismiss all failure to warn claims in the PPI class action lawsuit because they are preempted. The argument, and it is a weak one, is that because the FDA (a federal agency) approved the warning labels, state law claims cannot be brought. 

Our lawyers talked about this in the last update in June – this motion is crucial because the crux of this class action lawsuit is that you knew of this problem with kidney injuries yet you did not change their product, instructions, guidelines, or, most importantly, warn doctors of the risk. 

The Special Master in the MDL likely put this issue to bed in the Prilosec-Nexium class action lawsuit. issued a report to the MDL Judge recommending that this argument be rejected because the defendants cannot show that the FDA would have rejected proposals for stronger warnings about kidney damage. The first bellwether trial in the MDL is set for November.

June 2022: The defendants in the Nexium-Prilosec PPI class action MDL have filed motions for summary judgment in the upcoming bellwether test trials. The primary legal argument in this motion is based on a doctrine called federal preemption. The preemption doctrine holds that victims are blocked from bring tort lawsuits under state law if there is a federal law that protects the defendants from liability. The Special Master in the MDL recently allowed both parties to submit additional briefing to address how a recently decided case on the preemption issue (In re Fosamax Alendronate Prod. Liab. Lit.) could potentially impact the issues in the Nexium-Priolsec cases. Our lawyers have read the Fosamax case (which rules in favor of defendants on a preemption argument) and in our opinion it is not applicable to the issues in the PPI cases.

April 2022: There are around 13,500 lawsuits pending in the Nexium-Prilosec PPI class action MDL.  The first trial will be in October.  The hope is that a few trials will set settlement amounts for Nexium kidney lawsuits. But many class action lawsuits – at least lately – have had trials and the parties still could not agree to a settlement amount for the victims.  So the judge, in this case, wants to keep the pressure on the lawyers.  So if a global settlement is not reached, the MDL Judge has identified a group of 200 cases that the parties will be preparing for trial over the next 16 months.

• These drugs have had a troubled history.  Zantac, which was long considered a great and safe drug, has now been associated with cancer.

Problems with Nexium

Nexium is a controversial drug.  At one point, bone fracture lawsuits were all the rage because there was data suggesting Nexium, particularly the long-term use of Nexium, would cause bone fractures and breaks.  Our lawyers believed many of these lawsuits were meritorious.  But the litigation did not get very far.

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Hundreds of farmers and agriculture workers have filed paraquat lawsuits alleging that their exposure to paraquat caused them to develop Parkinson’s disease. Back in June, a new Paraquat MDL was created and it already has around 200 pending cases. Last week, the MDL judge ordered all incoming plaintiffs to complete a Plaintiff’s Assessment Questionnaire (PAQ).

In this post, we will take a close look at the PAQ because it is essentially an outline of the key issues that will shape the paraquat litigation moving forward. It also gives prospective plaintiffs an idea of what type of facts they will need to support their case.

About the Paraquat Lawsuits

On June 10, 2021, U.S. District Judge Nancy J. Rosenstengel announced that the initial conference on the Paraquat class action MDL would take place on June 23th via Zoom.

The conference’s primary purpose was to discuss how to organize the plaintiffs’ leadership counsel. The court also heard both counsels’ position briefs that outlined their views on these cases’ facts, claims, and defenses. It ordered the parties to hold a case management plan meeting.

This is all garden-variety stuff, standard fare as an MDL class action gets underway.

Plaintiffs’ lawyers are men with a hammer who see everything as a nail. They refuse to give drug and medical device companies the benefit of the doubt on anything. Plaintiffs’ lawyers – particularly product liability lawyers – have a positional (and economic bias) that makes it impossible for them to be balanced towards these companies that indisputably make life-saving products.

I don’t think this quote, which I made up, is unfair. The plaintiffs’ lawyers are the haters that will hate. So, for more evidence, we have to look elsewhere to see if others are having bad experiences with drug and medical device companies who put profit above patient safety.

The government drives us nuts, but most people see them as an honest power broker (at least over time). Additionally, the government (both Republican and Democratic administrations at national and local levels) seems to be in a 1984ish endless war with drug companies.

Drug wholesaler McKesson Corp. has settled charges against it, agreeing to pay more than $190 million for government claims that it reported inflated drug prices that caused federal government – specifically Medicaid – to overpay for drugs.

McKesson put out the same press release that goes out in every single one of these cases:

We did not manipulate drug prices and did not violate any laws. However, when we weighed our conviction that we did not violate any laws against the inherent uncertainty of litigation, we determined that this settlement was in the best interest of our employees, customers, suppliers and shareholders.

The idea of an MDL is to consolidate discovery, figure out what the cases are about, and whether they can be settled without a gazillion trials. So you do some discovery and, more often than not, you try a few cases and see if you can limit or even eliminate trials getting sent back to their home jurisdictions for trial.

But in any piece of mass tort litigation, the quality of the individual cases is going to vary wildly. There are a lot of reasons for this that are case-specific, but one value driver thread that runs through every case is the quality of the plaintiff. There is no question that juries are going to pay more (and may even be more likely to find liability) in cases where you have a plaintiff that the jury likes and respects. So that begs the question: which cases get tried first? Plaintiffs’ lawyers look for good facts with a Mother Teresa-like plaintiff and defendants look for confounding facts Idi Amin-like. This we know.

So which cases are chosen to go first? One of the authors of the defense-oriented Drug and Device Law Blog crashed the plaintiffs’ attorneys’ seminar, Mass Torts Made Perfect, and listened to what the judges who spoke there had to say. This was their summary: