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Law360 (May 14, 2020, 4:24 PM EDT ) Diabetics prepping their sprawling case over insulin prices for a 2022 trial have lost their bid to funnel their claims through a bellwether strategy, although counsel for the patients said they're not giving up yet.
The New Jersey federal judge handling insulin buyers' proposed class action against top insulin manufacturers Eli Lilly, Novo Nordisk and Sanofi-Aventis issued a short ruling Wednesday turning down the patients' push to send smaller groups of consumers to trial first.
The dozens of diabetics leading the legal battle had said staggering the trials would shield the bulk of their at-risk proposed class representatives from increased exposure to the novel coronavirus, which has proven more deadly for those with underlying conditions like diabetes.
The patients also insisted that a bellwether approach would propel their three-year-old case forward faster, as tens of millions of insulin buyers nationwide are likely to be swept into a certified class, and the suit claims violations of consumer protection laws in nearly 50 states.
The drugmakers panned the strategy as unprecedented and inefficient, and U.S. District Judge Brian R. Martinotti ruled in their favor Wednesday. The brief decision came with no reasoning attached.
Counsel for the patients said Thursday that the bellwether battle isn't over.
"We intend to revisit the issue with the court down the road. It's still in our view the most effective way for the court to manage a class decision where there are many state laws at issue," Hagens Berman Sobol Shapiro LLP managing partner Steve Berman told Law360 in an email.
Berman said they'll make another push when they get closer to the class certification stage, which is slated to start up around July 2021.
The patients' hope is to split their case 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 would replace one sweeping, nationwide trial on claims that all 99 proposed class leaders have brought under state laws across the board.
Eli Lilly, Novo Nordisk and Sanofi-Aventis said last month they were "puzzled" by the selection of those states in light of the diabetics' COVID-19 arguments, as the drugmakers highlighted that the three states the proposed class had chosen for the bellwethers have some of the highest reported rates of confirmed COVID-19 cases in the country.
New Jersey's current 142,000 positive diagnoses place the Garden State second only to New York, the epicenter for COVID-19 in the U.S.
Massachusetts and California, with 80,500 and 73,200 cases, respectively, are among the top 10, according to the Centers for Disease Control and Prevention.
The diabetes patients said they chose those states for legal reasons, but pointed out that some of the patients' lead attorneys have offices there, meaning they could more easily quarantine before coming into contact with their clients.
Counsel for the drugmakers did not respond to requests for comment Thursday.
The litigation kicked off in early 2017, with insulin buyers alleging the three top manufacturers of the medicine — and the only producers of the treatment in the U.S. — colluded to drive up prices for the uninsured and underinsured.
The drugmakers are due to respond to the diabetics' latest complaint by June 4. Then talks over deposition strategies would be next up on the docket schedule.
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.
For a reprint of this article, please contact reprints@law360.com.
