Lawyers from several prominent firms are gearing up for a fight over which judge should oversee potentially hundreds of lawsuits filed over the pharmaceutical drug Elmiron.
About 80 lawsuits allege that Elmiron, used to treat a chronic bladder infection called interstitial cystitis, causes eye problems. Most cases are in either Pennsylvania or New Jersey, the headquarters of defendant Janssen Pharmaceuticals and its parent corporation, Johnson & Johnson.
Plaintiffs firms, some with hundreds of potential cases waiting in the wings, want the cases coordinated into multidistrict litigation before a single judge but are sparring over turning to U.S. District Judge Brian Martinotti, a veteran in mass tort litigation in New Jersey, or Judge Wendy Beetlestone, of the Eastern District of Pennsylvania, who has yet to handle an MDL before.
“We already have hundreds of cases; we’re just not filing them until we know where we’re going,” said Hunter Shkolnik of Napoli Shkolnik. He and Michael London of Douglas & London, who filed the initial transfer motion last month before the U.S. Judicial Panel on Multidistrict Litigation, are among several plaintiffs lawyers hosting a webinar later this month on the Elmiron litigation.
Shkolnik’s firm, along with Levy Konigsberg, filed a court document with the U.S. Judicial Panel on Multidistrict Litigation supporting Martinotti, whom he called “fair” and “even handed.”
“We see a judge who both sides believes can steward this case to a resolution one way or the other quickly, and not get bogged down in the fight and minutia we see in some cases,” he said.
Also backing Martinotti, in filings on Thursday, were the Lanier Law Firm and Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor.
On Thursday, Janssen’s attorney, R. Bruce Hurley, of King & Spalding in Houston, wrote in a court filing that his client supported an MDL despite “the growing trend in recent years that the mere formation of multidistrict litigation can result in the filing of meritless claims in an effort to increase plaintiff inventories and encourage settlement.”
Martinotti, however, had the “willingness and motivation to rein in any abuses that may result from the fact of coordination,” he wrote.
A competing group of firms, including Anapol Weiss, Simmons Hanly Conroy and Lockridge Grindal Nauen, is pushing for Pennsylvania. The firms insisted, in an Oct. 8 filing, that cases before Beetlestone have progressed much farther, with a trial date scheduled for 2022.
“Centralizing these cases before Judge Beetlestone will allow the parties to continue to efficiently litigate these cases and preserve the January 2022 trial date for the benefit of all plaintiffs in this litigation,” they wrote.
The MDL panel has set oral arguments for its Dec. 3 hearing.
Lawyers filed the Elmiron cases this year as Janssen, on June 16, changed the label to the drug, which has been on the market since 1996, cautioning about “retinal pigmentary changes.” Starting in 2018, studies at Emory Eye Center, Kaiser Permanente and Harvard found that Elmiron could cause vision injuries.
“At Janssen, nothing is more important to us than the health and safety of our patients who take our medicines, and we are confident in the overall safety profile of Elmiron,” wrote a Janssen in an emailed statement. “We are committed to defending the allegations made in these lawsuits.”
Plaintiffs firms supporting New Jersey noted that Martinotti, who is also overseeing at least two other MDLs, has “exceptional experience” and has said he is interested in leading the cases.
“This experience coupled with his judicial leadership and availability to litigants, plaintiffs submit, would make him an excellent choice to oversee this MDL,” wrote London, in a Sept. 23 motion to transfer the cases to New Jersey.
The firms supporting Beetlestone, however, note that she also is interested in handling an Elmiron MDL, having said so at a Sept. 29 status conference.
Additionally, they wrote, she is overseeing the only class action, brought on behalf of patients who want Janssen to pay medical monitoring costs in case they develop vision loss.
Wexler Wallace and Crueger Dickinson, in a Thursday filing supporting the Pennsylvania group, also noted that the New Jersey court is “overtaxed with MDL cases.”