Lawyers in Zantac Litigation Split on Forum Selection – What is Driving the Strategic Decision to Pursue Claims in State Courts?
Zantac has been making headlines recently over claims of the now-recalled drug causing a whole host of cancers. First introduced in the 1980s, the once popular drug is now the subject of mass tort litigation involving tens of thousands of plaintiffs.
Lawyers representing plaintiffs in the Zantaclitigation are now split over strategic decisions and whether to pursue their claims in state courts instead of federal courts. What is driving this strategic divide, and what can be expected in the coming months?
What Is Zantac?
Zantac is a popular heartburn medication used to treat and prevent heartburn, acid indigestion, sour stomach, and other conditions related to excess stomach acid. Brand-name Zantac became commercially available in 1983, and approximately 15 million prescriptions were written annually.
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The active ingredient in Zantac, ranitidine HCl, metabolizes into N-Nitrosodimethylamine (NDMA). Although NDMA is officially classified as a cancer-causing carcinogen, the Food and Drug Administration (FDA)has established a daily intake limit of 96 ng.
In June 2019, laboratory tests on Zantac revealed dangerously high levels of NDMA, discovering over 3,000,0000 ng per tablet. For context, you would have to smoke roughly 500 cigarettes to ingest the same amount of NDMA found in a single Zantac tablet. In response to these findings, in April 2020, the U.S. Food and Drug Administration (USDA) ordered the immediate withdrawal of all Zantac drugs from the market.
Cancer is the primary injury from Zantac use, tens of thousands of victims have emerged as plaintiffs in lawsuits across the country. However, nearly 200,000 people in total claim that Zantac has caused their cancer.
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Strategic Divide Among Lawyers in Zantac Mass Tort
Lawyers representing plaintiffs in the Zantac litigation are divided on how to best pursue lawsuits over the recalled drug. A combination of questionable rulings by the federal judge overseeing the multidistrict litigation (MDL) and strategic decisions by lawyers on the MDL leadership team has prompted many plaintiffs to file their claims in state courts.
Response to Judicial Orders
The federal judge overseeing the MDL in the Southern District of Florida, United States District Judge Robin Rosenberg, has recently imposed new deadlines on when lawsuits may be filed. Although Judge Rosenberg has taken initiative by creating a registry to determine a census of claims that have yet to be filed, she has imposed a July 31st deadline on those in the registry to decide whether to file their lawsuits.
Judge Rosenberg last year also dismissed many claims brought under the United States Racketeer Influenced and Corrupt Organizations (RICO) Act, which would have provided reimbursement for future cancer-detecting diagnostics tests.
The co-chair of the Zantac litigation group and co-lead of plaintiffs liaison counsel in the California state cases, R. Brent Wisner, attributes these rulings to why many larger firms have opted to fight these cases in state court. Wisner states the exodus to state courts is “largely driven by the fact that the federal MDL judge in Zantac has made several rulings that really defy common sense in my mind, and I think are legally incorrect.”
MDL Litigation Strategy
However, it is not solely a series of questionable rulings driving plaintiffs to state courts in droves. The plaintiffs’ lawyers on the MDL leadership team have chosen to limit their experts to those specializing in five specific types of cancer (bladder, gastric, esophageal, liver, and pancreatic), effectively excluding many potential plaintiffs from being included in the lawsuit. Many prominent law firms responded to this litigation strategy by opting to file their lawsuits in state courts, including California, Delaware, Pennsylvania, New York, and Illinois.
Lawyers now predict that approximately 35,000 to 50,000 lawsuits could be filed in state courts, compared to the 2,000 now in the MDL. Trials have already been scheduled in state courts in both Illinois and California in the coming months. In Illinois, a trial in state court is set for February 8th. In California, a trial in state court will take place on February 13th, followed by three additional trials scheduled in 2023.
Although no official trial date has been set for the MDL, there is widespread expectation that a trial will be scheduled in the coming months. Commentators have noted similarities between the Zantac litigation and what happened in the lawsuits against Monsanto’s Roundup, where the overwhelming majority of cases ended up in state courts. Of the 125,000 claims settled, roughly 4,400 cases were part of the MDL. The remaining cases were in state courts.
Regardless of the forum, lawyers in state and federal Zantac mass tort litigation have remained adamant about pursuing valid claims and finding relief for their clients. If you have been injured by a recalled or defective drug, you may have legal recourse available.
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