The last four weeks have seen significant developments in multidistrict litigation over the anti-psychotic prescription medication Abilify (aripiprazole) as both sides have filed motions, each side alleging the other has interfered with pre-trial discovery.
In January, defendants Otsuka Pharmaceuticals and Bristol-Meyer Squibb (BMS) asked Judge M. Casey Rogers to dismiss more than one-quarter of the approximately 2,000 lawsuits currently pending before the U.S. District Court in Pensacola. The reason, they said, was that the plaintiffs in question had failed to submit court-ordered plaintiff profile forms by the specified deadline.
According to one of the plaintiff’s lawyers, the two drug companies are “…looking to dodge accountability simply because some of the patients they profited so richly from haven’t been able to submit a questionnaire.” She assured the court that the required documents would be forthcoming.
The forms ask individual plaintiffs to provide information as to when they took Abilify, the dosage prescribed, any pre-existing compulsive disorders from which they suffered and what specific disorders they claim to have developed as a result of the medication. In a scheduling order issued in March 2017, Judge Rogers instructed all plaintiffs to submit their forms within 30 days of filing their cases. Supplemental forms and supporting documents were due within 60 days of initial filing. Those who failed to comply, she said, risked having their cases dismissed.
On January 29th, Judge Rogers reported that over 400 plaintiffs had either submitted incomplete forms, or had not submitted them at all. Two days later, she gave plaintiffs seven days to either submit the forms or show cause as to why their cases should not be dismissed “with prejudice” (meaning the cases cannot be re-filed). Those who could show reasonable cause for not submitting the forms would be given additional time for compliance.
This week, lawyers for the plaintiffs filed their own motion, accusing defendant BMS of making false statements and hampering the discovery process. Specifically, the motion alleges that evidence provided in the testimony of a BMS employee indicated the company worked with outside consultants to come up with “favorable” information about Abilify. They have also accused the defense of withholding evidence. A few days earlier, plaintiffs’ counsel filed a motion for sanctions against Otsuka for allegedly destroying evidence.
Abilify, introduced in 2002 is generally prescribed for the treatment of bipolar disorder, depression, and schizophrenia, as well as symptoms associated with autism and Tourette Syndrome. Among other side effects, Abilify has been linked to compulsive behavior, including gambling, shopping, binge eating, and sex. Oddly, the drug makers included warnings about these risks on packages sold in Canada and the European Union several years ago. However, such warnings did not appear in the U.S. until 2015.
Last year, attempts to reach a global settlement in the current Abilify MDL failed, although Otsuka and BMS did reach settlements with three plaintiffs. Bellwether trials are scheduled to begin in July 2019.