Zantac is Back?
Zantac Update – by Attorney Jeff Keiser.
Earlier this month (June 3), the Zantac litigation was revived through Delaware state courts.
Zantac (as a nationwide MDL) was effectively killed by District Court Judge Robin Rosenberg back in 2022, when she held that plaintiffs’ causation experts did not pass evidentiary muster. That simple order simply eliminated more than 50,000 filed lawsuits. Most lawyers (me included) thought that this would be the end of the story and the case would quickly disappear.
We’ve seen it all before. Conservative judge prohibits plaintiff experts, leaving no case behind except for thousands of injured people. And yes, this tends to be the end of the story. But here, not so fast. The MDL may remain mostly dead (there are a handful of unlikely to succeed appeals working their way through the 11th Circuit), but in state court, the litigation is alive and well.
Earlier this month (June 3), the Zantac litigation was revived through Delaware state courts. Delaware Superior Court Judge Vivian Medinilla held that a jury (not a judge) should decide who wins in a battle of experts. This revives nearly 75,000 cases that had been pending in the court, but more importantly, opens the door to new claims to be filed.
Some national law firms have already responded to this news by opening up the portal for new claimants. Statutes of limitation and/or repose are still likely to play a key role in assessing plaintiffs during intake, but there is nothing preventing new cases from being filed.
Before anyone gets too excited about this development, a few caveats remain. First, even Judge Medinilla held that the methodology used by plaintiff experts was “shaky” and something a jury should consider.
Likewise, because Delaware courts use the same Daubert standards as federal courts, further scrutiny on appeal (which defendants vow to pursue) may not be so plaintiff friendly. Even more, Delaware statutes of limitations generally give plaintiffs just 2 years to file suit after learning of the injury.
I know everything I just wrote has a tone of uncertainty about it, and that’s true. What is absolutely certain, however, is that new cases involving Zantac can be filed again, and the future for these cases is much brighter than it was a month ago.
Some estimates now put the value of these state cases at more than $2 billion, far eclipsing what defendants have been paying in smaller settlements through the MDL. It’s easy to see how nervous this makes defendants. Immediately following the order, GSK stock fell more than 9%.
In state courts, Delaware is not the only option, but likely the most attractive. There are additional jury trials scheduled in Chicago starting in July, September, and November. But Illinois has not been especially favorable, with one defense victory and at least one dismissal by plaintiff on the eve of trial. Another trial is scheduled for February 2025 in Philadelphia. California is another jurisdiction where filing in state court remains an option. Our analysis shows that, for now, Delaware is the best venue possible.
It is ‘go time’ for these cases. If you’ve been sitting on any, get them filed in Delaware as soon as possible. We expect these appeals to go quickly, and then move directly to the settlement phase (assuming appeals go in our favor). But in a world of dead cases, it’s nice to see one come back to life. Hopefully, other judges in Delaware see the concept of expert witnesses the same way as Judge Medinilla. If so, we may all be in for a very profitable year.
Craig H. Alinder, Vice President