Zantac Bellwether Trials Likely in 2023

West Palm Beach, FLOn June 14, the Southern District of Florida, where Zantac cancer lawsuits have been consolidated for pretrial motions, issued an amended case management schedule. The Order anticipates that bellwether trials will begin in 2023.

It also sets a rough timeline for preliminary steps that will shape the litigation and determine the likelihood that those who developed cancer because of long exposure to ranitidine-contaminated Zantac will see some money from GlaxoSmithKline and other pharmaceutical giants.

But while understanding the process is useful, it is important to remember that Zantac was the 50th most prescribed drug in the U.S. with 15 million prescriptions a year. Many more people took over- the- counter forms of the drug for many years.

Now people who took Zantac are developing a variety of cancers. It appears that the corporate giants that manufactured and distributed the drug may have known of the danger and kept it a secret.

The schedule

The schedule set out by the court falls roughly into four stages:

• The selection of bellwether lawsuits, which will be the first to go to trial;
• The selection of expert witnesses;
• The discovery process, including depositions of likely witnesses; and
• Challenges to the relevance of scientific evidence and the reliability of expert witnesses under Daubert v. Merrel Dow Pharmaceuticals, Inc.

These four strategic steps must be accomplished before anything goes to trial.

Picking bellwether personal injury lawsuits

This process is going on now and should be largely completed by October 2021. The bellwether lawsuits do not necessarily create precedent for any other Zantac cancer lawsuit that follows.

They are, however, a way of testing the strength of the case. Settlement negotiations often begin in earnest only after the bellwether cases have been decided. A couple of very large jury awards, similar to those awarded in the Monsanto Roundup lawsuits may prompt a more generous settlement offer to the remaining individual or class action lawsuit participants.

Plaintiffs’ counsel will want to see the strongest cases selected as bellwethers. Defense counsel will want to see the shakier ones make the ultimate list.

Selection of and challenges to expert witnesses

The next phase, which is set to begin in October and will continue through the end of 2021, involves the selection of expert witnesses. In a case that depends heavily on scientific evidence about the causal link between Zantac use and the much later development of cancer, juries depend heavily on expert testimony. It’s going to be a war of the experts.

Those following the bellwether cases as they play out can expect to see conflicting and confusing evidence, as well as efforts to impugn the credibility or impartiality of the experts as “paid witnesses.” Note to readers: all expert witnesses are paid. It’s a job Nonetheless, nobody is paid to lie.

Discovery and depositions

Although a lawsuit complaint must lay out the basic facts of a case, the descriptions of the facts are often quite brief. Discovery, which usually consists of document requests and witnesses and parties’ depositions, uncovers the full story. Discovery will be focused on the cases selected as bellwethers and the fact evidence will lay out the details of Zantac usage, surgeries, pain and suffering.

The plaintiffs’ sworn depositions are particularly important. The will fill in the personal details and, to be frank, this process takes a long time and the people who are ill are quite ill.

This phase is due to be completed by the end of December 2021. All discovery materials must be made available to opposing counsel. There will be no fact surprises at any of the bellwether trials.

Daubert challenges

In Daubert, the Supreme Court held that only relevant and credible evidence can be introduced at trial. Counsel for both sides will try to get unfavorable evidence excluded as not meeting the Daubert standard. Daubert motions can be expected through the spring and summer of 2022.

Meanwhile in the background

After the bellwether trials, there may be further individual trials or class action lawsuits. The preliminary steps for those lawsuits are now also in motion. One of the most critical issues in any class action lawsuit is the certification of a class or many subclasses of plaintiffs. These steps will be happening simultaneously with many of the steps described above.

Why does it matter?

The process can seem endless, boring and bureaucratic for those who are struggling with cancer. But while lawsuits do not restore health, they can bring financial peace to patients and families dealing with negligently-caused harm to health.