Valsartan MDL Judge OKs Out-Of-State Litigants, More Claims

A New Jersey federal judge ruled that multidistrict litigation against drug manufacturers, pharmacies and wholesalers over carcinogens in blood pressure drugs can expand to include out-of-state litigants and warranty claims under laws in nearly two dozen jurisdictions.

In an opinion that considered objections to a special master’s report on the litigants’ motion to amend their claims, U.S. District Judge Robert B. Kugler sided with the special master’s take that U.S. Supreme Court precedent and other case law don’t preclude named plaintiffs from representing potential class members living in other states.

The special master had reversed Judge Kugler’s previous ruling barring out-of-state plaintiffs, in which the jurist had relied on a New Jersey federal court’s 2020 ruling in Ponzio v. Mercedes‐Benz USA LLC that out-of-state plaintiffs had no standing in class claims over defective car paint.

Judge Kugler said that his earlier ruling on standing was “not fully considered” and he now sees the Ponzio court’s reliance on U.S. Supreme Court precedent to be questionable. The Ponzio court based its holding on high court cases in which standing hinged not on traceability of the injuries’ origins but rather on the showing of a concrete, particularized injury and whether plaintiffs had a solid stake in the outcome.

Judge Kugler had gone on to overturn the special master’s denial of the plaintiffs’ bid to assert breach of implied warranty claims against the pharmacy defendants in multiple U.S. states and territories. The pharmacies had pushed to adopt the special master’s finding, relying on “innocent seller” statutes and case law to dodge warranty liability, while the plaintiffs contended that the drug stores conflated strict liability and implied warranty claims.

Judge Kugler delved into case law and discovered a mixed bag of rulings on the issue of whether strict liability and implied warranty claims could stand separately, a finding that tilted in favor of the plaintiffs.

The ruling allows for breach of implied warranty claims under the laws of Alaska, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Idaho, Indiana, Maryland, Montana, Nebraska, Nevada, New Hampshire, New Mexico, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Utah, Wisconsin and Wyoming. 

In other findings, Judge Kugler affirmed the special master’s denial of the plaintiffs’ bid to add negligence claims against pharmacies and wholesalers. He found “no facts” supporting the existence of a duty for “downstream defendants” to investigate the purity of blood pressure drugs.

The plaintiffs filed their claims in 2019 seeking damages for personal injuries, medical monitoring and economic losses they say were caused by Zhejiang Huahai Pharmaceutical Co. Ltd. and other drug companies, along with pharmacies such as CVS and Rite-Aid and wholesalers like McKesson Corp. and AmeriSource Bergen Corp.

The special master’s report that drew the objections was issued in October.


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