Defendants Demand Pre-Discovery Evidence in Birth Control Packaging Suits

Pharmaceutical companies facing more than 100 lawsuits in federal court over improperly labeled birth control pills want the plaintiffs to provide pre-discovery information linking their claimed injuries to the defendants products.

Pantheon and Endo Pharmaceutical subsidiary, Vintage Pharmaceuticals, filed the request Monday in a consolidated litigation over the contraceptive Cyclafem, which faced a recall over its packaging in 2011. According to the defendants, the motion for a Lone Pine-style order is aimed at weeding out plaintiffs with nonmeritorious claims.

Lone Pine orders require plaintiffs to include prima facie evidence early in the litigation. The term comes from a 1986 New Jersey state court case, and they are used primarily in large litigations.

The drug companies request comes in the Pennsylvania wing of litigation that was filed across the country, including numerous actions in Georgia federal court and California state court, over the nationwide Cyclafem recall. Plaintiffs suing over the recall, however, have repeatedly been denied efforts to obtain class status, and the 113 suits pending in Pennsylvania were initially part of the litigation filed in Georgia, before the Georgia cases were tossed on summary judgment.

According to the joint motion, which was filed by K&L Gates attorney Christopher Carton, since the 113 suits pending in Pennsylvania were initially part of the Georgia litigation, it should be easy for plaintiffs to include the additional pre-discovery information, including an expert affidavit linking the claimed injuries with Cyclafem.

If a plaintiff cannot produce an affidavit from an expert providing the minimal amount of evidence that defendants seek, the court should be concerned about the viability of that plaintiffs claims and should not allow that plaintiff to waste this court s and the defendants time in discovery, Carton said in the motion.

Attorneys Keith Bodoh of Robertson Bodoh & Nasrallah and Steven Beard of Atlanta, Georgia represent the plaintiffs. Neither attorney immediately returned a call for comment. Angela Vicari of Arnold & Porter Kaye Scholer is representing Vintage. Vicari and Carton, who is representing Pantheon, also did not return a call for comment Tuesday morning.

This story is developing.