Duane Morris Class Action Review - 2023 - Report - Page 287
misrepresented their effectiveness, and plaintiffs developed certain hearing disorders
because of reliance on the representation the earplugs were safe and effective. The
complaint also counts for negligence and strict liability under design defect theories.
Interestingly, the violations of the consumer protection statutes alleged in the complaint
led to personal injury, as opposed to just economic harm. Often, consumer protection
statutes are used to form a cause of action in instances where an alleged deceptive
label caused someone to purchase and/or pay more for a product based on the
deception. However, the allegations in Combat Earplug MDL go a step further and
connect the deception to a personal injury.
Pharmaceutical litigation and medical device litigation often result in MDL proceedings.
In Re Zantac (Ranitidine) Products Liability Litigation, MDL No. 2924, pending in the
U.S. District Court for the Southern District of Florida was created in 2020 and
encompasses about 2,000 plaintiffs, with another 150,000 potential claims currently
registered. The claims allege that chemicals in Zantac cause cancer, and after
extensive fact and expert discovery and motion practice, the case was postured for Rule
702 and summary judgment briefing.
After several rounds of motions to dismiss, the generic manufacturers were dismissed
from the MDL because the state law claims were preempted; the brand name
manufacturers were the only remaining defendants. In support of their claims, the
plaintiffs offered ten general causation experts across various disciplines, including
chemistry, biochemistry, pharmacokinetics, and epidemiology.
The court first evaluated the epidemiological studies, and undertook a thorough analysis
of each study. The court expressed skepticism that no published scientific studies or
governmental findings supports the opinions of the plaintiffs’ expert that ranitidine
causes cancer. Zantac, MDL No. 2924, at 177. The court used this fact to find that the
methodologies of the plaintiffs’ experts used to support the conclusion that Ranitidine
causes cancer did not rise to the level required to survive a Rule 702 motion. Id. The
court was unpersuaded by the dietary epidemiologic studies that certain of the plaintiffs’
experts relied upon, noting that the dietary studies contain inaccuracies,
misclassifications, and analytical gaps. Id. at 216.
After excluding all of plaintiffs’ general causation experts, the court found that the
plaintiffs had not presented admissible evidence establishing general causation - that
ranitidine causes cancer - and granted the defendants’ motion for summary judgment.
The opioid litigation is another MDL of significance. Reportedly, there are 115 deaths
daily in the United States linked to an opioid overdose, with a total of 400,000 deaths
over the past two decades. Currently, more than 2 million people are currently battling
an opioid addiction.
Since the JPML centralized the opioid proceedings in 2017, overall, there were roughly
3,000 lawsuits filed across the country against those involved in the opioid supply chain
over the past several years.
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© Duane Morris LLP 2023
Duane Morris Class Action Review – 2023
