by, Erin Fitzgerald, JD, of Lexicon Legal Content
Over 140 lawsuits against the manufacturers of Zantac and its generic counterparts were consolidated by the Judicial Panel on Multidistrict Litigation (JPML) and transferred to the Southern District of Florida. Because this Multidistrict Litigation(MDL) will set the stage for the litigation process, it is important to consider how this location and the presiding judge will affect the current Zantac litigation and the strategies of attorneys involved.
THE CASE FOR ZANTAC MDL
Plaintiffs argued that the lawsuits pending related to Zantac and its generic counterparts all require adjudication of the following common factual questions, which would benefit from the consolidation of pretrial discovery:
The presence and potency of the chemical NDMA in Zantac and its generic counterparts
Risk of cancer and other injuries to users from NDMA
Defendants knowledge about NDMA and links to injuries
Defendants actions to conceal risks
Once the JPML agreed with the plaintiffs, the JPML next needed to consider the location for the MDL.
THE CASE FOR FLORIDA
The JPML will consider convenience for the parties, availability of resources, and other factors when deciding where to transfer the MDL.
Locations suggested for this MDL included district courts in New Jersey, New York, and Florida. New Jersey or New York were strongly supported by the defendants because pharma company Sanofi is headquartered in New Jersey, Pfizer is headquartered in New York, and Boehringer Ingelheim and GlaxoSmithKline are located in nearby Connecticut and Philadelphia, respectively.
While these northeast locations were unquestionably more convenient for the defendants named in the lawsuits, the majority of plaintiffs appeared to support Florida as the chosen location. This is, in part, because many of the lawsuits were already pending near the Southern District of Florida. Plaintiffs’ attorneys further argued that Florida greater judicial resources, as there is a judicial shortage in New Jersey, causing backups of the court dockets. The JPML seemed to side with the plaintiffs in this matter.
SIGNIFICANCE OF LOCATION
The location of MDLs can have both procedural and substantive impacts on the case. The MDL judge will apply procedural rules and federal law as their own circuit interprets the law, which can certainly vary in different geographical areas. Attorneys handling the Zantac MDL should be highly familiar with how the Eleventh Circuit has ruled on all procedural and substantive issues involved in the case. While some procedural interpretations might dictate the timeline of the case, some interpretations of substantive law can significantly impact the outcome, class certification, chances for interlocutory review, and more.
Another important aspect of the JPML selecting the Florida court is the judge who is presiding over the pretrial proceedings. This JPML selected U.S. District Judge Robin Rosenberg, noting that this is her first opportunity to oversee an MDL case. Judge Rosenberg will soon need to become an expert on Zantac and claims by plaintiffs in order to make effective rulings that apply across the board to all the pending lawsuits.
MDL judges also have the power to rule on the scope of the role of experts in each MDL. The judge will be a gatekeeper when it comes to accepted expert testimony, and product liability cases are often dependent on expert-related rulings. Because MDLs consolidate Daubert motions, the Daubert rulings will have a magnified effect on the cases. Every lawyer should be aware of how the MDL judge in Florida might rule on such motions, and select their proposed expert witnesses accordingly.
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