Lipitor Litigation’s Last Gasp?

Pfizer may have got a lucky break in the Lipitor multidistrict litigation (MDL). The popular statin drug used to treat high cholesterol has been linked to the development of type-2 diabetes. Based on a recent judicial order, the Lipitor MDL plaintiffs may be facing summary judgment in Pfizer’s favor. Is this Lipitor litigation’s last gasp?

Pfizer may have got a lucky break in the Lipitor multidistrict litigation (MDL). The popular statin drug used to treat high cholesterol has been linked to the development of type-2 diabetes. Based on a recent judicial order, the Lipitor MDL plaintiffs may be facing summary judgment in Pfizer’s favor. Is this Lipitor litigation’s last gasp?

In December 2015 U.S. District Judge Richard Gergel (South Carolina) issued an order (CMO55) excluding testimony from the plaintiffs’ causation experts. In such a case, the plaintiffs bear the burden not only of show causation (that Lipitor can cause type-2 diabetes) but also specific causation (Lipitor causes these plaintiffs to develop type-2 diabetes). Judge Gergel found that testimony from the plaintiffs’ experts on specific causation was not sound enough to be admissible.

Lead counsel for plaintiffs advised the court that he is uncertain as to whether any of the thousands of cases in the MDL will survive a motion for summary judgment by Pfizer. Minus the expert testimony excluded under CMO55, plaintiffs’ case may fail for lack of specific causation.

The judge entered a second order on Monday of this week (CMO65) giving plaintiffs 15 days in which to give the court notice that they believe their claim could survive a motion for summary judgment if CMO55 is upheld on appeal.

If no plaintiffs provide the required notice, it may be over for the Lipitor litigation. Even if some plaintiffs do give notice, they face the difficult challenge of proving specific causation without their former expert witness testimony.