A Renewed Shot at Justice for Bravelle Infertility Plaintiffs

Chicago, ILThe most recent news on the Bravelle lawsuit front continues to be the capacity for Bravelle litigants to continue their actions, following a failed bid last year by Ferring Pharmaceuticals Inc. to have the matter dismissed.

Bravelle is a fertility drug intended to aid couples experiencing challenges with conception. Various costs associated with the drug include fees for fertility clinics, travel expenses to and from treatment centers, and accommodations. It has been suggested that many drug plans do not cover the cost of fertility drugs such as Bravelle, leaving couples with the financial burden of funding the procedure themselves.

Plaintiffs have described saving for years, and foregoing things like vacations and other acquisitions, in order to put enough money aside towards their dream of conceiving a child.

There are challenges to conception beyond a properly-functioning drug such as Bravelle, assuming the fertility drug is robust with a full potency compliment. However, this was alleged not to be the case when manufacturer Ferring pulled the drug from the shelves through a Bravelle recall, following stability testing that revealed certain lots of Bravelle failed to meet potency specifications needed to afford clients the best shot at conception.

A Bravelle Infertility Drug lawsuit first put forward in March, 2015 made accusations that Ferring “knew, or should have known that the recalled lots were not suitable for use and were sub-potent.”

(Nicole Keith et al v. Ferring Pharmaceuticals Inc., Case No. 1:15-cv-10381, in the US District Court for the Eastern District of Illinois).

There have been allegations the shelf life of certain lots of Bravelle turned out to be insufficient to retain the potency needed to foster a successful outcome.

Ferring’s response was to have the case dismissed. In the view of the defendant, the plaintiffs hadn’t sufficiently alleged that the Bravelle they bought and used was specifically sub-potent or out of specification.

However, US District Court Judge Amy St. Eve was not prepared to fully dismiss the case, and therefore did not grant Ferring summary judgement in full. “Whether defendant conducted stability testing prior to the summer of 2015 and whether the testing results revealed sub-potency issues are facts that plaintiffs can uncover during discovery,” Judge St. Eve concluded, in a ruling released in September of last year.

“The relevant question at the motion to dismiss stage…is not whether plaintiffs will ultimately prevail on the merits, but whether the allegations are sufficient to cross the federal pleading threshold,” Judge St. Eve added. In her ruling, St. Eve concluded that in her view, the allegations were sufficient for the proposed Bravelle Recall class action lawsuit to go forward under revised claims.

The six plaintiffs – Nicole Keith, Ryan Keith, Jack R. Dodds Jr., Crystalina R. Dodds, Michelle Cooper and Shannon Minerich – had already revised their claims in March of last year. In September, Judge St. Eve left the door open for the plaintiffs to further revise and refine their claims, and move forward from there.