The firm serves on the national counsel team for Pfizer Inc in litigation over Reglan/Metoclopramide, which involves approximately 6,300 plaintiffs in various cases in venues across the country. There is no MDL, but there are coordinated proceedings in PA, CA, and NJ, and several single-plaintiff and mass-plaintiff actions pending in state and federal courts in other jurisdictions. In 2011, our firm had two key roles on the national team and will continue to serve as lead national counsel for legal strategy going forward. In 2011, Phil Butler of our firm had primary responsibility for identifying and working up experts (neurology, neuropharmacology, gastroenterology, epidemiology, neuro-ophthalmology, and regulatory) and deposing key treating physicians in cases nationwide. Also in 2011, and on a continuing basis, Kevin Newsom, is head of the national legal strategy team, with primary responsibility for setting legal strategy and drafting/coordinating all dispositive, Daubert/Frye, and pre-trial briefing in Reglan cases nationwide. In 2011 through present, Russ Morgan has served as lead counsel for seven Reglan cases filed by over 25 plaintiffs in United States District Court for the Western District of Tennessee.
Reglan/metoclopramide is ongoing but is the key battleground nationwide on the question of “innovator liability,” a theory that seeks to impose liability on brand-name drug manufacturers for injuries allegedly caused by generic products. 66 decisions nationwide have addressed the theory and 64 decisions have rejected it. Of those 66 decisions, 53 have come from the Reglan/Metoclopramide litigation. These cases also involve the evolving state of the law following the Supreme Court’s decision in PLIVA, Inc. v. Mensing, 131 S. Ct. 2574 (2011), particularly with regard to the decision’s application to former brand-name drug manufacturers.
Given the present posture of the litigation, which, in many cases, remains in the discovery phase, many courts have not yet addressed key dispositive or expert motions. Multiple courts have before them pending dispositive motions (prepared by our firm) that could knock out many of these cases.
None of the innovator-liability decisions described above has issued from a state supreme court, but our firm developed and implemented the strategy to get the first case into a state supreme court (a certified question to the Alabama Supreme Court). BABC coordinated the strategy for that briefing (including 5 amicus briefs) and wrote all the briefs. The case is fully briefed and awaiting decision from the Alabama Supreme Court.