During a lull in the amount of product liability litigation in the country, two companies have the dubious honor of being the target of a growing number of lawsuits. Benicar maker Daiichi-Sankyo is one of them. According to statistics from the U.S. Judicial Panel on Multidistrict Litigation (JPML), the number of cases in recently-created MDLs for the Japanese-based drugmaker rose significantly between mid-April and mid-May of 2015.
The specific cause of action in these cases is Benicar (olmesartan medoxomil) is a blood pressure medication implicated in a lower gastrointestinal condition known as sprue-like enteropathy. It is a life-threatening, autoimmune disorder that prevents the patient from absorbing nutrients from food; it literally causes starvation. It's a disorder that mimics celiac disease, which may be one reason that physicians didn't make the connection sooner.
“The primary question in these cases is whether or not the company knew or should have known of possible side effects,” says Troy Rafferty of Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor PA. The Florida-based law firm was among the first appointed by the federal judge presiding over the cases to represent plaintiffs. Mr. Rafferty, one of only five attorneys appointed by the federal court to the plaintiff executive committee, explains: “We then need to demonstrate to the court that the company either neglected to provide an adequate warning – or purposely withheld the information altogether.”
Some may find that last statement shocking. Why would a manufacturer knowingly conceal information about a product either known or suspected to be dangerous? Sadly, this is all too common, says Mr. Rafferty. “Prescription medications of this type mean big revenues,” he adds. “Drug companies make about $7 billion a year on these ARBs [angiotensin receptor blockers]. When there is that much money at stake, a company may decide it's worth paying out a few legal claims.” Significantly, although there are several pharmaceutical companies that produce and market ARB medications, Benicar is the only such prescription drug to be connected to sprue-like enteropathy.
Defendants Daiichi-Sankyo and its corporate partner, Forest Laboratories Inc., originally opposed consolidation of the cases before a federal judge on grounds that there were not enough cases to justify such an action. However, on May 19, 2015, they filed an application seeking the cases to be centralized before the New Jersey Superior Court. According to Law360, attorneys for the defense said such a move would “conserve judicial resources while avoiding overlapping discovery and competing rulings among different courts.” In April, the JPML consolidated fifteen of the cases before a federal court in New Jersey, where Forest Laboratories is domiciled.
Benicar litigation is still in the early stages. “Currently, we're still in discovery,” says Mr. Rafferty. “This is the part of the process when each party makes evidence available for examination by the other, and every day, we're learning more about the link between Benicar and this terrible disease.”