Further procedural developments in the Gadolinium-based contrast agent litigation.

The New Jersey Supreme Court recently ordered all litigation in the state over gadolinium-based contrast dyes centralized as a mass tort in Middlesex County (In re: Gadolinium-Based Contrast Agents Litigation, N.J. Super. Ct., Middlesex Cnty., No. 279, 4/10/08). The cases were assigned to Judge Jamie D. Happas, who scheduled a case management conference for May 13.

Readers of MassTortDefense are familiar with the MDL Panel. And readers probably know that some, but not all, states have “mini MDL” procedures for coordinating cases in state court systems.  More NJ procedural  info here.

This litigation involves suits by patients who allege harm from exposure to gadolinium-based contrast dyes used in medical imaging. The plaintiffs assert that they developed a medical condition called nephrogenic systemic fibrosis (NSF) or nephrogenic systemic dermopathy (NSD) as a result of having contrast agents injected into their veins during such tests as magnetic resonance imaging.

Litigation apparently was spurred when the FDA issued a health advisory Dec. 22, 2006, noting that gadolinium-based contrast agents have been associated with the development of NSF/NFD in patients with renal insufficiency. Manufacturers added a boxed warning to gadolinium-based agents in September 2007, cautioning against use of these products in patients with kidney disease.

In February, 2008, the Judicial Panel on Multidistrict Litigation consolidated federal cases in the U.S. District Court for the Northern District of Ohio. In Re: Gadolinium Contrast Dyes Products Liability Litigation, MDL No. 1909 (JPML). The Panel rejected the argument of one defendant that the cases do not share common fact issues because each defendant’s contrast agents are chemically and pharmacologically different. Other defendants supported centralization and requested that the Northern District of Ohio be designated as the transferee court. The federal cases are assigned to Judge Dan. A. Polster.  Plaintiffs’ Steering Committee has a website.

Such pre-trial consolidations are not surprising, given the courts’ desire for a mechanism to efficiently administer and mange multiple cases raising at least some common issues. However, they do risk the “Field of Dreams” effect: build it and they (plaintiffs) will come. The distortion of the process and the potential impact on defendants’ due process rights is a central and often overlooked aspect to mass tort aggregation.