A Kansas District Court recently reinforced that cases alleging claims outside the Judicial Panel on Multidistrict Litigation (JPML) Transfer Order cannot be employed to broaden the scope of the MDL litigation. In reaching that conclusion, the court denied a motion to consolidate a new class-plaintiffs’ lawsuit with a mature multidistrict litigation (MDL).

In August 2017, the JPML created MDL 2785, In re: EpiPen (Epinephrine Injection, USP) Marketing Sales Practices and Antitrust Litigation (EpiPen^® MDL). The EpiPen MDL is made up of cases asserting claims of anticompetitive conduct and unfair competition by defendants Pfizer, King Pharmaceuticals, Meridian Medical Technologies and multiple Mylan entities in their marketing and sale of the EpiPen. EpiPen is an epinephrine auto-injector used to treat anaphylaxis — a severe, potentially life-threatening allergic reaction that can occur within minutes of exposure to an allergen. The JPML assigned the EpiPen MDL to the District of Kansas.

The EpiPen MDL is divided into two litigation tracks. The first track consists of the “consumer class cases” — i.e., cases filed by individual consumers or third-party payors who allege they purchased EpiPens for individual consumption. The Consumer Class plaintiffs in this track allege the defendants conducted an illegal scheme to maintain a monopoly over the relevant market that forced EpiPen purchasers to pay inflated prices. The second track consists of a single case filed by Sanofi Pharmaceutical Company alleging that Mylan, as distributor of the EpiPen, engaged in a variety of anticompetitive conduct designed to prevent a rival product from gaining access to the epinephrine autoinjector market.

Approximately three years after the creation of the EpiPen MDL, the attorney for the Consumer Class plaintiffs filed suit on behalf of a class alleging the defendants violated the federal Racketeer Influenced and Corrupt Organizations (RICO) Act by manipulating expiration dates to force patients to refill EpiPen prescriptions more frequently. Gott v. Mylan N.V., et al., Case No. 20-cv-2099-EFM-TJJ.

Soon after commencement of the lawsuit, the Consumer Class plaintiffs moved to transfer and consolidate the Gott case with the MDL. The Consumer Class plaintiffs argued that the case should become a new, third litigation track because it involved the same defendants, the same product and “the same RICO marketing scheme.” Defendants opposed the motion.

The District Court, Hon. Daniel D. Crabtree, held that transfer and consolidation of the Gott case into the MDL was not warranted under 28 U.S.C. § 1407. The court cited three reasons for this conclusion, generally rooted in the JPML’s Transfer Order for the EpiPen MDL and the divergent procedural posture of the cases.

• First, the court held that the case did not share “common questions of fact” with the MDL because its claims were based on fraudulent expiration dates, and the MDL’s claims did not “involve this kind of allegation.” The JPML’s Transfer Order had identified specific types of “anticompetitive conduct” alleged by the original plaintiffs, allegations of selling EpiPens only in a 2-Pak format, delaying generic entry by bringing “sham” patent litigations and creating exclusionary rebate programs. The existing MDL claims made no mention of “allegations based on expiration dates and shelf-life of the EpiPen.”

• Second, the court held the convenience of the parties would not be served by consolidation, in large part because discovery already had closed in the MDL and the Gott case was just beginning. In addition, both the Gott case and the MDL were pending in the District of Kansas, so convenience to the parties would be unaffected by consolidation.

• Third, the court similarly held that consolidation would not promote the just and efficient conduct of the action because the MDL was “in a very different procedural posture than the newly filed Gott” For all these reasons, the court denied the Consumer Class plaintiffs’ Motion for Transfer and Consolidation of the Gott case into the MDL under 28 U.S.C. § 1407.

Gott v. Mylan N.V., et al. serves as a reminder that claims truly must involve the same questions of fact in order to properly be transferred and consolidated into an MDL. The JPML’s Transfer Order may be a good resource for defeating a Motion to Transfer that aims to widen the scope of an MDL via consolidation of a new case.