The parties in sprawling MDL over alleged links between the heartburn drug Zantac and various cancers presented a joint plan for narrowing a field of more than 130,000 potential personal injury claimants to serve as plaintiffs in initial bellwether trials targeted for 2023.
Judge Rosenberg previously trimmed claims against generic-drug makers and retailers, but that still left major pharmaceutical brands Sanofi, Pfizer Inc., Boehringer Ingelheim Pharmaceuticals Inc. and GlaxoSmithKline LLC facing accusations of false advertising, failure to warn and other claims associated with the alleged discovery of the cancer-causing chemical nitrosodimethylamine, or NDMA, in the medication.
Earlier this month, the court found the makers of the brand-name drugs could not duck claims from a medical monitoring class, which could cover hundreds of thousands of Zantac users who have not been diagnosed with cancer but are seeking damages related to the costs of screenings and treatments should they be diagnosed in the future.
The bellwether process discussed is limited to personal injury claims from individuals who allege Zantac use caused their cancer. Plaintiffs’ counsel have compiled a registry of more than 130,000 plaintiffs with filed cases and unfiled claimants whose allegations span 10 different types of cancer.
The bellwether plaintiffs are limited to Florida residents only.
As a first step, at least 75% of the Florida plaintiffs will certify that they will file their complaints within the MDL and be bound by the MDL court’s orders.
Once the certification is complete, the parties plan to use a Microsoft Randomizer tool to randomly select 6% of the plaintiffs in each cancer category, or 25% per category if there are fewer than 25 plaintiffs picked for a category, to form an “initial discovery pool.”
Once a “final discovery pool” has been set, the parties would wait for the court to decide on their general causation. That ruling is expected by summer or fall of 2022.
The parties would then once again use the Microsoft Randomizer to set the order of the cancer categories for trial, with the first two categories making up “Phase One” and the third and fourth making up “Phase Two.” The Randomizer would also be used to select eight bellwethers for each cancer category.
Each side would have the right to strike one plaintiff from each category at this point and a second plaintiff after 70 days of discovery, leaving a “final bellwether trial pool” of four plaintiffs in each cancer category.
The parties will rank the final trial pool in order of preference, and the court will decide which plaintiff — or multiple plaintiffs — will go to trial in each of the Phase One categories.
The draft order estimated that the court would rule on the parties’ case-specific motions by May 19, 2023, setting up a first trial starting on July 17, 2023.