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.
Gayle Gerling Pettinga
Born and raised in Evansville, Gayle is a respected, experienced lawyer and a valued community leader. She graduated near the top of her class at Indiana University’s prestigious Maurer School of Law. She’s practiced law with one of the largest firms in Indianapolis as well as one of the largest pharmaceutical companies in the world. And that means she knows how big law firms and big companies think and how they operate – and she will put that knowledge to work for you.
Gayle has received numerous awards and honors including Martindale-Hubbell — Peer Review Rated: AV®, American Institute of Personal Injury Attorneys 10 Best Attorneys in Indiana for Exceptional and Outstanding Client Service, and YWCA Evansville 100 Years, 100 Women Honoree, 2011.
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