Hundreds of individual lawsuits involving birth defects allegedly caused by Zofran have been filed in Federal Courts. But none have yet proceeded to trial.
Have Any Zofran Birth Defect Lawsuits Reached A Settlement?
In most litigations involving potentially dangerous pharmaceutical products, settlements only become a possibility after several initial lawsuits (known as “bellwether” trials) have proceeded to trial and reached a resolution.
Large pharmaceutical manufacturers often choose to settle cases, rather than see them through a trial, to reduce their legal and court costs, minimize media scrutiny and prevent large court awards. Settlements can be reached prior to a trial’s beginning, or during its proceedings. During negotiation sessions, Defendant and Plaintiff will meet to work out an amount of compensation that is mutually acceptable.
But before even considering the option, large Defendants generally want to gauge the likelihood of losing in jury trials. For the most part, the more likely juries are to decide in favor of Plaintiffs, the more likely Defendants will be to settle a claim before it reaches that point.
Will Zofran Lawsuits Be Consolidated In Multidistrict Litigation?
On July 6, 2015, GlaxoSmithKline, Zofran’s manufacturer, petitioned the US Judicial Panel on Multidistrict Litigation, asking for all of the federally-filed Zofran lawsuits to be “consolidated.”
While it’s rare for a Defendant to make this request of their own accord, most litigations in which numerous lawsuits are expected eventually become a Multidistrict Litigation or MDL.
How Multidistrict Litigation Works
In an MDL, multiple claims that make similar allegations against a single Defendant are transferred: sent to one court and managed by one judge. But this transfer only holds for pretrial proceedings, phases like “discovery,” in which both sides of a legal dispute are allowed to obtain evidence from one another.
During this period, common questions of fact shared by all of the lawsuits can be decided on once, and those decisions apply to each claim equally. If new claims are filed after the MDL’s formation (and most MDL’s involve the creation of a “short form” complaint, making the process of filing a new lawsuit even easier), they can be transferred to the “transferee” court as “tag-alongs.”
In many MDLs, the transferee court will conduct one or more “bellwether” trials, in which one of the consolidated claims proceeds to trial before a jury. The jury’s ultimate decision doesn’t apply to any of the other cases; it’s only binding for the specific parties named in the chosen “bellwether” trial. But it does provide other Plaintiffs, along with the Defendant, essential information, including at least one possible answer to the question of how juries may view the allegations and evidence presented before them. On the back of these results, a Defendant may decide to enter settlement discussions with Plaintiffs. In fact, Defendants often choose to settle claims consolidated in an MDL, even when juries decide against Plaintiffs in bellwether trials.
In a Federal MDL created for claims involving Johnson & Johnson’s Propulsid, a family of heartburn drugs that were linked to fatal arrhythmias, the transferee court conducted one “bellwether” trial before a jury in New Orleans. While the jury found in favor of Johnson & Johnson, the company eventually agreed to settle the claims of eligible Plaintiffs for a total of $75 million.
After pretrial proceedings are finished, and bellwether trials are decided (if the transferee court chooses to conduct them), the individual lawsuits are “remanded,” sent back to the Federal Courts in which they were initially filed. In practice, most cases consolidated in an MDL and transferred to a single court will end there, rather than being remanded for trial. Statistics compiled by the Judicial Panel on Multi-District Litigation indicate that of 265,269 total claims consolidated in MDLs between 1968 and 2007, more than 65% “terminated” in the court to which they were transferred, either through dismissal or settlement. Only 4.3% of claims were remanded back to their initial courts.
You can find more practical answers to your legal questions in our Zofran FAQ.
Is MDL The Same As Class Action?
No; MDL and class action are very different legal mechanisms. While some attorneys have referred to the Zofran litigation as a potential class action, Banville Law believes that Zofran lawsuits will be consolidated in an MDL.
In most class actions, a limited number of “representative” individuals file a lawsuit on behalf of a much wider group of individuals, a “class,” who were harmed in a similar way. Unlike in an MDL, where each Plaintiff remains in control of their individual lawsuit, members of a class action are bound to the decisions of those representative individuals, including big ones like whether or not to accept a settlement agreement or proceed to trial. In the event of a settlement or court award, class members must “share” the award. In practice, most eligible members of a class never receive any portion of a settlement.
To find more on the distinction between class action and Multidistrict Litigation, click here.
Can Parents Still File?
GlaxoSmithKline faces a number of troubling accusations, and if true, any woman who was prescribed Zofran as an “off label” morning sickness treatment and delivered a child with major birth defects may be eligible to file a claim.
Three recent large-scale studies have found an increased risk for cleft palate and congenital heart defects among babies exposed to Zofran in utero. Now, more than a dozen Plaintiffs claim that GlaxoSmithKline hid evidence of the drug’s link to fetal harm, while at the same time unlawfully promoting it for use during pregnancy.
Banville Law has joined forces with a multi-state alliance of distinguished plaintiffs’ attorneys to investigate potential Zofran birth defect claims. Learn more about your legal options in a free consultation with one of our experienced lawyers.