By Anne Cullen

Law360 (April 29, 2020, 7:24 PM EDT ) Dozens of diabetics leading a class action against top insulin manufacturers Eli Lilly, Novo Nordisk and Sanofi-Aventis over the cost of the medicine fired off a letter to the court Wednesday defending their proposal to send smaller groups of patients to trial first to limit COVID-19 exposure.

The patients, which aim to represent tens of millions of insulin buyers nationwide, contend that a bellwether approach will propel their three-year-old case forward faster and shield the bulk of their at-risk proposed class representatives from increased exposure to the novel coronavirus. The disease, which has claimed more than 55,000 lives in the U.S. as of Tuesday, has proven more deadly to those with underlying conditions like diabetes, according to the Centers for Disease Control and Prevention.

In light of this enhanced risk and in the interest of efficiency, the proposed class has asked the New Jersey federal court handling their case to split it into state-based tracks, with a first set of trials limited to claims lodged by the insulin buyers hailing from California, Massachusetts and New Jersey. This approach, which the drug companies fervently oppose, would replace one sweeping, nationwide trial on claims that all 99 proposed class leaders have brought under state laws across the board. 

According to the proposed class' plan, scaling back the number of diabetes patients that would need to be deposed and subject to other pretrial discovery requirements before a COVID-19 vaccine becomes widely available will alleviate some of the enhanced risk they face.

While trial is tentatively slated for 2022, depositions are scheduled to start up early next year, and the proposed class asserted Wednesday that "current best estimates for a vaccine render it highly unlikely that they will be vaccinated before depositions occur in February 2021."

"The class representatives are at elevated risk of dying from COVID-19 until a vaccine becomes available," the patients said.

"At a time like this with COVID-19 [the bellwether plan] will protect the plaintiffs' well-being as diabetics are at high risk for the virus," Hagens Berman Sobol Shapiro LLP managing partner Steve Berman, an attorney for the class, added in an email to Law360 on Wednesday.

The drugmakers have panned the strategy as unprecedented and inefficient, as well as a "transparent attempt" by the patients to skirt the difficulties of getting a nationwide class certified. In their response to the proposal this week, the trio also said they were "puzzled by plaintiffs' suggestion that their proposal alleviates" some of the risks associated with the ongoing health crisis.

If the pandemic remains an issue for in-person depositions next year, the drugmakers said they're happy to hash out a strategy that would reduce the health risk.

They also pointed out that the three states the proposed class has chosen for the bellwethers have some of the highest reported rates of confirmed COVID-19 cases in the country, with New Jersey's current 114,000 positive diagnoses putting the Garden State only second to New York, the epicenter for COVID-19 in the U.S.

Massachusetts and California, with 58,000 and 45,000 cases, respectively, are among the top 10, according to the CDC.

The proposed class said Wednesday that they chose those states for legal reasons, but pointed out that some of the diabetes patients' lead attorneys have offices there, meaning "they could quarantine for two weeks before assisting any plaintiff to set up and participate in a remote deposition."

Outside of the criticism revolving around COVID-19, the proposed class also asserted that they weren't trying to evade the difficulties of certifying a nationwide class. "To be clear: whether plaintiffs move to certify classes in three states or 50, they intend to prove the requirements imposed by the Federal Rules," they said.

And while the drugmakers say that holding multiple smaller trials will bog down the court, the proposed class said Wednesday that the rest of the case will likely settle after the first few verdicts.

"Defendants' suggestion that bellwethers will somehow 'create' delay lacks any foundation in reality," they said, adding that "in practice, if the remaining cases do not resolve outside of court before trial, they almost certainly will after three jury verdicts affecting tens of millions of class members."

The diabetes patients kicked off the litigation in early 2017, alleging the three top insulin manufacturers — and the only producers of the treatment in the U.S. — colluded to drive up prices for the uninsured and underinsured.

Counsel for the drugmakers did not respond to requests for comment Wednesday.

The diabetes patients are represented by Hagens Berman Sobol Shapiro LLP and Carella Byrne Cecchi Olstein Brody & Agnello PC.

Eli Lilly is represented by Reed Smith LLP and Covington & Burling LLP. Novo Nordisk is represented by Gibbons PC and Davis Polk & Wardwell LLP. Sanofi-Aventis is represented by Walsh Pizzi O'Reilly Falanga LLP and Jones Day.

The case is Chaires et al. v. Sanofi U.S. et al., case number 3:17-cv-00699, in the U.S. District Court for the District of New Jersey. 

--Additional reporting by Jeannie O'Sullivan. Editing by Orlando Lorenzo.

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