Order Requires Disclosure of 3rd Party Funding Information in Zantac MDL

On April 3, 2020, the United States District Court for the Southern District of Florida issued an order in the pending Zantac multidistrict litigation (”MDL”) requiring disclosure of funding arrangements and funding documentation between plaintiffs’ counsel and third-party litigation financiers. This order represents some increased traction in favor of arguments seeking to require disclosure of third-party funding arrangements in MDLs.

The Zantac MDL, In re Zantac (Ranitidine) Prods. Liab. Litig., MDL No. 2924, was originally formed by the Judicial Panel for Multidistrict Litigation on February 6, 2020. The plaintiffs sued various defendants, including manufacturer Sanofi and its distributors, alleging that the active ingredient in the heartburn medication Zantac breaks down to form a carcinogen that caused personal injuries. Included in the MDL are also six putative classes of consumers who sought refunds and economic damages based on their purchase of Zantac. Due to a number of actions already pending in the Southern District of Florida, the Panel transferred the remaining actions to that court to be assigned to the Honorable Robin L. Rosenberg.

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Why Reformers Want Disclosure Of 3rd-Party MDL Funding

It is no secret that third-party litigation funding, or TPLF, has become an increasingly common practice. One area particularly affected by this trend is that of mass tort actions and multidistrict litigations, where funding is now more than ever being utilized to finance voluminous and prolonged proceedings.

While courts have historically been reluctant to require disclosure of funding agreements and information, precedent suggests that different approaches may be warranted in the MDL context because of considerations unique to those proceedings — including potential for bias, distortions of control and decision-making as between litigants and funders, and conflicts of interest between funders and the judiciary.

Against this backdrop, advocates of disclosure have taken a proactive role in seeking further changes to rules of discovery and disclosure to address these issues. Litigants should be aware of these emerging efforts toward change, and the reasons underlying them, as the use of litigation funding continues to rise.

To read the full text of this article by Duane Morris attorneys Anne A. Gruner, Justin M. L. Stern and Nicholas M. Centrella Jr., please visit the firm website.

The Hidden Preemption Defense: What You Should Know

The most recent talc verdicts have demonstrated some traction in defeating claims based on certain go-to defense strategies, including personal jurisdiction dismissals, the use of expert testimony and Daubert motions discrediting scientific causation, and even requests to jurors to use their “common sense” in evaluating scientific evidence. However, there is another tool that defense attorneys should consider in talc cases: federal preemption.

Part of the mass appeal of talc cases lies in the prevalence of talc-based products in the marketplace, due to the numerous uses for talc in a variety of consumer products across cosmetics, over-the-counter (OTC) drugs, and even foods. As talc litigation expands into products that may be regulated as OTC drugs, defense counsel should consider the options that they might have in invoking federal preemption as a defense strategy. While the defense remains untested, there is a sound basis for its application. This article will discuss the federal U.S. Food and Drug Administration (FDA) regulatory scheme that is applicable to talc-based products and when federal preemption may support an argument for defeating conflicting state law claims against talc-containing OTC drugs.

To read the full text of this article by Duane Morris attorneys Anne A. Gruner and
Nicholas M. Centrella, Jr., please visit the Duane Morris website.