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MCL Designation Sought for New Jersey Cases Linking Abilify to Gambling

Both plaintiff and defense counsel in litigation alleging that use of the popular antipsychotic drug Abilify caused patients to engage in compulsive behavior are asking for a multicounty litigation designation, to ensure that any future cases end up in Bergen County with the 47 others now pending. In a joint application filed weeks ago but only recently made public, the parties are asking the judiciary to have the suits assigned to Superior Court Judge James DeLuca for case management. In March 2016, Bergen County Superior Court Judge Brian Martinotti consolidated the nine cases then existing for consolidation. Since then, Martinotti has become a U.S. District Court judge, and the cases have all been assigned to DeLuca. The Nov. 21 application is seen primarily as a pre-emptive move in case any lawsuits are filed in any other county. So far, no Abilify cases have been filed outside of Bergen County, according to the lead plaintiffs attorney, Rayna Kessler. The pending cases already have advanced considerably and consolidation of those cases and any future ones would be beneficial to all sides, Kessler said in the application to Appellate Division Judge Glenn Grant, the acting administrative director of the courts. "Centralization will provide a fair and more convenient, cost effective process for all parties, witnesses, counsel and the court," wrote Kessler, of New York's Robins Kaplan. "Centralized management will conserve judicial resources and provide all parties with the benefits of coordinated discovery." In a Dec. 27 notice to the bar, Grant said public comments on the application would be accepted until Jan. 26. At least 410 other Abilify suits have been filed in federal courts, and they have been assigned to U.S. District Judge Casey Rodgers of the North District of Florida under the federal multidistrict litigation designation, according to the application. The plaintiffs commenced filing lawsuits in January 2016 against Bristol-Myers Squibb Co. of New York and Otsuka America Pharmaceutical Inc. of Princeton, a subsidiary of Tokyo-based Otsuka Pharmaceutical Co., alleging that Abilify, the drug they developed and marketed, leads some patients to engage in compulsive behavior, most notably gambling. The drug is used to treat bipolar disorder, schizophrenia and depression, and is one of the companies’ biggest sellers, according to the lawsuits. “Defendants knew or should have known that Abilify, when taken as prescribed and intended, causes and contributes to an increased risk of serious and dangerous side effects including, without limitation, uncontrollable compulsive behaviors such as compulsive gambling,” said one of the first complaints, filed by Kessler on behalf of plaintiff James Robbins. David Field of Roseland’s Lowenstein Sandler represents Bristol-Myers. He was unavailable for comment on the MCL application. Otsuka’s attorney, Luke Connelly of the New York office of Winston & Strawn, declined to comment. Kessler declined to comment beyond what was written in the MCL application. Robbins’ suit says Otsuka developed Abilify in 2002 and, along with Bristol-Myers, soon began producing and developing the drug worldwide. The complaint, citing Bristol-Myers marketing materials, said that by 2013 Abilify had become the company’s biggest-selling drug, with revenues of $2.3 billion. Between April and June 2014, sales of Abilify reached $417 million in the U.S. and $515 million worldwide, according to the suit. The lawsuits say that in 2012, the European Medicines Agency, the London-based entity of the European Union that regulates pharmaceuticals in Europe, began requiring that warnings be placed on the drug’s labels that said using Abilify could lead to “pathological gambling.” Similar warnings are placed on the drug’s packaging in Canada, Robbins’ complaint says. But, according to the complaint, there were no comparable warnings on packaging in the U.S., despite “thousands” of complaints about Abilify’s side effects from 2009 to 2011. Robbins’ complaint says he used the drug between 2004 and 2014 and started gambling compulsively, losing $75,000. The gambling stopped, the suit claims, once he ceased using Abilify. Similar lawsuits have been filed in New York, Indiana, Florida and Minnesota. The plaintiffs claim breach of warranty, negligence, violation of federal drug-related statutes and regulations, negligent misrepresentation, violations of New Jersey’s Consumer Fraud Act and fraudulent concealment. They also seek punitive damages. In the prior consolidation motion, both Bristol-Myers and Otsuka agreed that pretrial proceedings should be consolidated so as to coordinate discovery, reduce costs and eliminate the risk of inconsistent rulings.