Opinion Issued in Teva Pharmaceutical MDL on Choice of Bellwether Cases

On Tuesday, a new memorandum opinion was issued in the Multi-District Litigation (MDL) case against Teva Pharmaceuticals and multiple direct purchasers and end-payers. The case, assigned to the Eastern District of Pennsylvania, deals with multiple proposed class-action cases against several product lines and drugs created by Teva Pharmaceuticals and marketed to and purchased by many different insurance companies, insurance benefit plan managers, drug stores, and other end purchasers and payors.

This particular opinion pertains to the choice of bellwether cases in this larger litigation. As is typical for many MDL cases, in the interest of judicial resources and facilitation of future settlements, the parties involved in the MDL have agreed to proceed with three bellwether cases to determine the liability and extent of damages that could be representative of the larger litigation. Due to the many parties and many product lines involved with the litigation, no one case could be selected, so three cases were selected as being representative. The cases were those involving the drugs clobetasol, clomipramine, and pravastatin, respectively. At issue in this opinion are the cases involving the drug pravastatin.

As the MDL has proceeded, there has been a parallel criminal investigation into the same circumstances. This criminal investigation has resulted in charges for certain parties to the case, especially the pravastatin case. The memorandum opinion stated that this is a concern for using this case as a bellwether, as it is likely that certain witnesses that would be invaluable in the proceedings would be likely to rely on the Fifth Amendment in order to reduce their criminal liabilities due to the indictment, rendering the entire case less likely to be indicative of those cases that do not have this additional criminal complication.

While noting that the criminal case will always have an impact on the bellwether cases, the court stated that it especially impacted the pravastatin case and that selection of the fourth case, those involving production by Heritage Pharmaceuticals, had been considered for a bellwether would advance the cases better for the moment.

The docket contains a record of the multitudes of attorneys representing the plaintiffs and the defendants.