Herndon denies motions to dismiss in Pradaxa cases; MDL ruling expected soon

By Bethany Krajelis | Aug 2, 2012



As plaintiffs across the nation wait to find out whether Multi District Litigation will be set up to handle lawsuits over Pradaxa, U.S. District Judge David Herndon continues to move forward with the complaints filed in his court.

Herndon in late June denied a motion made by defendant Boehringer Ingelheim Pharmaceuticals, the manufacturer of the blood thinning prescription drug, to stay proceedings until the U.S. Panel for Multi District Litigation (PMDL) ruled on the MDL request.

Since then, Herndon has issued orders on motions seeking extensions of time to file responses and motions to dismiss for failure to state a claim in about a handful of the eight cases filed in May in East St. Louis.

Although two more suits over Pradaxa were filed in June and seven more in July, additions that bring the total to 17, not much more besides the actual complaint and notices of appearances have been filed in these nine cases.

Herndon noted in his June order that 27 Pradaxa actions were pending in 13 different districts courts across the nation, with the majority coming from his court. He said "this is far too many cases to ignore the issues that are of concern to this Court while the MDL motion is being resolved."

The plaintiffs in these suits sued Boehringer, as well as a few other foreign corporations, claiming that the Pradaxa caused side effects ranging from internal bleeding to death. They also contend the defendants failed to warn them of the drug's risks.

The suits include claims for negligence, liability for design defects and failure to warn of the drug's risks, fraudulent concealment and negligent misrepresentation, as well as violations of the Illinois Consumer Fraud and Deceptive Practices Act.

In mid-July, Herndon held a status conference in the majority of the cases that were filed in May.

According to minutes of the conference, attorneys representing both plaintiffs and defendants told Herndon they agreed to dismiss certain defendants from the cases, as well as to a confidentiality order.

Attorneys also advised the judge that they had made tremendous progress with the production of certain documents in the matter and hoped he would enter a production order. Herndon entered orders dealing with both issues a few days after the status conference.

The production order details the format of document production in the cases and the confidentiality order allows parties to designate certain documents as confidential since some of the documents produced might contain trade secrets, proprietary business information and financial details.

In addition to these orders, Herndon on July 24 entered an order denying Boehringer's motion to dismiss the plaintiff's claims for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6).

Boehringer argued in its motion that the plaintiffs' claims and requests for punitive damages fail to satisfy pleading standards laid out by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal.

In Twombly, the court said that Rule 12(b)(6) dismissal is warranted if the complaint fails to set forth "enough facts to state a claim to relief that is plausible on its face."

Herndon, however, said even though these two Supreme Court rulings "retooled federal pleading standards, notice pleading remains all that is required in a complaint."

Boehringer also argued that some of the plaintiffs failed to connect the dots between their allegations and their alleged injury. Herndon wrote in his order that the defendant argues that the "alleged injury of 'uncontrollable' bleeding cannot support any claim for relief because the plaintiff is not still bleeding."

Saying that the defendant's "overly literal BIPI's overly interpretation of the term 'uncontrollable' is not well taken," Herndon determined the alleged injury was sufficiently pled.

Boehringer also asserted in its motion seeking dismissal that the plaintiffs' claims that it failed to warn users of the drug's risks can't proceed because Pradaxa has always included a warning about the risk of "serious and sometimes fatal bleeding"

"This argument," Herndon wrote in his order, "presumes that the inadequacies or deficiencies being alleged by the plaintiff are premised on failure to warn about the risk of serious or fatal bleeding and nothing more."

Herndon explained that the plaintiffs in these cases are not just claiming that Boehringer is liable because it failed to warn them that Pradaxa has risks of serious and sometimes fatal bleeding.

Instead, Herndon wrote in his order, the plaintiffs contend that the defendant "failed to warn that, if a serious bleeding event occurs, there is no effective means for reversing the anticoagulation effects of Pradaxa."

"Accordingly, the fact that Pradaxa included a warning about the risk of serious or fatal bleeding does not justify dismissal of the plaintiff's claims."

Peter Flowers, an attorney at Foote, Meyers, Mielke & Flowers in St. Charles representing the plaintiff who filed the MDL request, said while Herndon continues to go forward with the cases, the fate of multi-district litigation is "in the hands of the MDL panel right now."

He said the panel heard arguments over the request on July 26. He said several attorneys made arguments in support of consolidating the cases, as well as suggestions as to which jurisdiction should preside over the proposed MDL.

Flowers said he urged the panel to set up multi-district litigation and assign it to Herndon based on his experience and success in presiding over the pending MDL over the Yasmin-line of birth control pills.

Some of the other plaintiffs' attorneys, he said, suggested assigning the matter to judges in Florida and Ohio, among other states.

Flowers said he expects the panel will issue its decision on the MDL request within a few weeks.

Dan Ball of Bryan Cave in St. Louis represents Boehringer in the Illinois suits. He did not immediately return a message seeking comment.

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