May 5, 2021 — Plaintiffs in the Zantac multidistrict litigation are utilizing the U.S. Supreme Court’s recent ruling in Ford Motor Co v. Montana Eighth District. The March 25 decision in the Ford case held that state courts in Montana and Minnesota had jurisdiction over product liability claims against Ford despite the company not directly selling the defective vehicles in the states. Ford argued that in-state residents who were affected by crashes in Montana and Minnesota were not permitted to sue in their own state courts because Ford did not design, manufacture or sell the allegedly defective vehicles there. The Supreme Court unanimously rejected Ford’s argument and ruled that, because Ford was very active in selling vehicles in the two states, Montana and Minnesota state courts had jurisdiction to hear the plaintiffs’ cases.  Justice Elena Kagan stated in the court’s majority opinion that plaintiffs only need to show a connection between their lawsuit and the defendant’s actions in their state.  Ford had argued that the plaintiffs needed to show that the defendant’s actions in their state had caused their injuries.  The decision is popular and has already been cited in 31 cases, mainly to clarify the jurisdiction issue. Zantac lawsuit lawyers for plaintiffs, specifically those who took a generic version of Zantac (ranitidine), are also seizing the opportunity to use the recent ruling to their advantage.  The plaintiffs have faced a similar jurisdictional challenge that the Ford plaintiffs battled in the states of California and Massachusetts.  They argued in a brief filed on April 23, 2021 in West Palm Beach, Florida that the “law has been entirely overruled by Ford,” referring specifically to the 11th U.S. Court of Appeals but-for rule. Both Massachusetts and California have “innovator liability” laws that allow people who have taken generic versions of a drug to claim that the drug’s originators misrepresented risks in the drug’s labels.  The supreme courts of both states allowed claims under the laws which resulted in 2017’s T.H. v. Novartis Pharmaceuticals Corp in California and 2018’s Rafferty v. Merck & Co Inc in Massachusetts. Despite those laws seeming to favor the Zantac plaintiffs, U.S. District Judge Robin Rosenberg, the judge over the Zantac MDL, dismissed the plaintiffs’ innovator liability claims in December 2020 on jurisdictional grounds.  Rosenberg cited a 2018 precedent from the 11th U.S. Circuit Court of Appeals in Waite v. All Acquisition Corp, stating that personal injury plaintiffs who are asserting specific jurisdiction are required to show that the defendant’s actions within the court’s home state directly led to the alleged injury.  The judge stated that the plaintiffs did not claim a causal link between their claims and the marketing activities in both California and Massachusetts by name-brand Zantac defendants. Judge Rosenberg allowed the plaintiffs to amend their complaint so that they could claim that the actions taken by the name-brand Zantac defendants in California and Massachusetts caused the plaintiffs to take the generic form of Zantac called ranitidine.  The new complaint explained that the marketing in the two states led to a higher demand for Zantac, and in turn caused higher sales of the generic version. On March 24, one day before the Supreme Court ruled on the Ford case, name-brand defendants Pfizer Inc, GlaxoSmithKline Plc, Sanofi SA, Boehringer Ingelheim, and Patheon NV moved to dismiss the amended claim.  They argued that they did not affect the introduction of ranitidine into the marketplace.  In the defendant’s brief, they said, “In short, while California and Massachusetts may choose to adopt their own novel tort principles governing companies based there, due process forbids them from applying those laws extraterritorially to hold the out-of-state brand-name manufacturers liable for the sales of other companies’ products.”  They continued with, “Plaintiffs’ highly attenuated theory of liability leaves them with no basis for specific jurisdiction.” The plaintiffs argued the opposite.  They claimed that the Ford decision requires plaintiffs to show that a defendant conducted business within the jurisdiction and that the plaintiff’s lawsuit relates to the defendant’s actions within the jurisdiction. The plaintiffs said that there is no doubt that name-brand defendants were involved in marketing in California and Massachusetts.  According to the plaintiffs’ application of the Ford decision, the defendants did not need to directly sell ranitidine in order to relate to the plaintiffs’ claims and hold responsibility for the failure to warn about both Zantac and ranitidine’s carcinogenic risk. Reference:  Frankel, Alison. “Zantac Generics Plaintiffs Hope SCOTUS Ford Decision Rescues Claims against Brand-Name Makers.” Reuters, Thomson Reuters, 27 Apr. 2021, www.reuters.com/article/us-otc-zantac-idUSKBN2CE2NX.

In an attempt to get a case to the Supreme Court, Bayer AG has entered into a deal with Georgia doctor John Carson where he is required to appeal his Roundup case and continue fighting against the company. Carson sued Bayer in 2017, and after Judge R. Stan Baker in Savannah did not throw the case out at the company’s request, litigation moved forward.  Baker decided in December 2020 that Bayer had no duty to warn Roundup users about its cancer risk because the Environmental Protection Agency (EPA) had approved the product’s label.  Other U.S judges have rejected this type of claim, known as a preemption claim. For Judge Baker’s decision to impact other  Roundup lawsuit cases, Bayer needs a federal appeals court to agree.  The company entered into a settlement with John Carson’s lawyer, Ashleigh Madison, in order to ensure that Carson appeals.  Bayer will be paying Carson as long as he follows through with appealing the preemptive question to the U.S. Court of Appeals in Atlanta.  Carson must also surrender any claims that he won. Bayer defends its settlement, explaining in a statement that it will pay Carson an undisclosed sum.  However, Carson will receive more money if he wins on appeal according to court records. “The parties have reached an agreement to resolve the Carson case on confidential terms contingent on the outcome of future appellate review of the district court’s dismissal of his failure-to-warn claims on federal preemption grounds,” Bayer said. If Bayer succeeds in Atlanta and then has a case heard by the Supreme Court, the company could potentially save hundreds of millions of dollars.  The Supreme Court is likely to only hear Bayer’s case if there is a contradictory decision in a different appeals court.  Before any of this can occur, Bayer must first win in Atlanta.  The company has shown confidence in its argument, stating in a legal brief that laws and regulations “make clear” that the EPA’s approval of a Roundup label without a warning should decide the case. A Loyola Law School professor, Adam Zimmerman, also agrees that a favorable Supreme Court ruling on preemption could curb the steady stream of Roundup lawsuits. “If you win on preemption, and you win at the Supreme Court, that’s a win that works in federal court, in different circuits and across the state courts in a way that can finally bring an end to a significant piece of the litigation,” Zimmerman said. Madison has declined to comment, and Carson has not returned calls to his office. Reportedly Madison has shared with other lawyers that the settlement is the “best possible outcome” for Carson and that, under the deal’s terms, the appeal is in his “best interest.” Reference:  Joel Rosenblatt. “Bayer Deal Pays Roundup Plaintiff to Keep Fighting in Court.” Bloomberg, www.bloomberg.com/news/articles/2021-04-21/bayer-deal-pays-roundup-plaintiff-to-keep-fighting-it-in-court.

May 4, 2021 — After Bayer AG entered into a deal with a plaintiff to keep him fighting the company in court, lawyers for the tens of thousands of other plaintiffs in the Roundup multidistrict litigation are calling out the company’s ill-intentioned move. Bayer is striving to attain a favorable ruling in the Roundup lawsuit litigation that claims exposure to its glyphosate-based herbicide leads to non- Hodgkin’s lymphoma.  The most recent step taken toward the company’s goal was entering into a deal with Georgia doctor, John Carson.  Bayer’s strategy is to win a decision from the Supreme Court that would undermine a key claim in the Roundup lawsuits and stop any more cancer cases from piling on top of the ones the company has already had to answer to. Bayer defended its deal, informing the court that the structure of the accord has been approved by other appeals courts. “The company has been completely transparent about its desire to appeal Roundup failure-to-warn cases on federal preemption grounds, and this settlement, which the plaintiff voluntarily agreed to, is an appropriate path for such an appeal,” the company said in a statement.   Roundup plaintiffs’ lawyers did not agree.  In a letter they penned to an Atlanta-based U.S. Court of Appeals on April 20, 2021, they wrote that Bayer’s actions were a manufactured “pay-to-appeal scheme” that will erode the U.S. system of justice if it’s permitted.  They also stated that, “The court should reject this brazen manipulation of our judicial system.” While Bayer disclosed a few details of the deal in a notice to the Atlanta court, it did not mention what the plaintiffs’ lawyers described as an onerous $100,000 penalty Carson is required to pay if he backs out of his appeal.  Bayer’s omission is described in the letter to be “on its face misleading, and speaks to the deceptive nature of this appeal.”  The letter illustrates the insidious plan by explaining that Bayer is “paying Carson to appeal and then threatening him if he does not follow through,” according to the letter. Carson has not responded to requests for comment and his lawyer, Ashleigh Madison, has declined to comment. The case is Carson v. Monsanto Co., 21-10994, occurring in the U.S. Court of Appeals for the 11th Circuit (Atlanta). Bayer has offered to pay up to $11.6 billion to resolve existing Roundup lawsuits from approximately 125,000 consumers in the U.S. and future claims. New lawsuits are being filed almost every day. Reference:  Rosenblat, Joel. “Plaintiff Lawyers Accuse Bayer of ‘Pay to Appeal Scheme’ in Roundup Litigation.” Insurance Journal, 23 Apr. 2021, www.insurancejournal.com/news/national/2021/04/23/611263.htm.