PHILADELPHIA – A group of plaintiffs in mass tort litigation involving now-recalled antacid medication Zantac are now seeking the cases’ overseeing judge to recuse himself, citing his ties to pharmaceutical manufacturer GlaxoSmithKline.
In a June 28 motion, counsel for Zantac plaintiffs motioned for the recusal of Philadelphia County Court of Common Pleas Judge Joshua Roberts, arguing that since Roberts’ wife, attorney Shannon E. McClure of Reed Smith in Philadelphia, helps to represent GSK in national Zantac litigation, that this connection created “the appearance of impropriety and potential for unconscious bias.”
“Undersigned counsel has great respect for Your Honor, and do not doubt Your Honor’s commitment to mete out justice fairly and impartially in these consolidated cases to the best of your ability. Plaintiffs are nonetheless filing this motion because the facts give rise to an appearance of impropriety and the possibility of unconscious bias,” the motion said, in part.
“Although these issues in no way call into question counsels’ belief that this Honorable Court will expend every effort to always proceed ethically with the intention of ruling without bias, the appearance of impropriety and potential for unconscious bias compel plaintiffs’ counsel to move for recusal in order to protect the interest of plaintiffs in this litigation.”
Though the plaintiffs do not say McClure is involved in the Philadelphia-based mass tort case concerning Zantac, they do argue that her involvement in similar cases in other jurisdictions and her marriage to its supervising judge, necessitates recusal.
“A judge’s relationship with his spouse and her financial interest in the underlying litigation provides just the type of circumstance in which ‘the appearance of impropriety arises.’ Your Honor’s spouse is a partner at Reed Smith, which means she shares in the profits of the firm, regardless of which clients she represents. Her income therefore is tied in part to fees generated from two clients who are defendants here,” the motion continued.
“As her spouse, Your Honor directly benefits from those distributions. Not only does Your Honor presumably benefit from fee income derived from two defendants in this case, but Your Honor also presumably benefits from fees tied directly to Zantac litigation.”
The motion added that a group of Reed Smith attorneys regularly post to the Drug and Device Law Blog, an online commentary which the motion states is “highly critical and [features] often intemperate attacks on any jurisprudence that favors plaintiffs”, as well as “specifically target[ing] the Zantac litigation on numerous occasions”, with articles that are “always pro-defense, anti-plaintiff and often criticize courts where the rulings have gone in the plaintiffs’ favor and praise judges who have ruled in defendants’ favor.”
Plaintiffs in the action argue that Zantac, an antacid and heartburn relief drug once sold over-the-counter in the U.S. until its recall by the Food and Drug Administration in 2020, is carcinogenic.
However, a Delaware case involving Zantac and nearly 75,000 plaintiffs has been allowed to continue, as plaintiffs can offer the expert testimony of a California-based laboratory named Emery Pharma to a jury. The firm was paid more than $2 million by lawyers to run rigorous tests to prove that Zantac was capable of decomposing into a carcinogen named N-nitrosodimethylamine, or NDMA, court documents have shown.
Following similar results from Valisure, another lab that works closely with plaintiff lawyers, the Food and Drug Administration ordered Zantac off store shelves and lawyers filed tens of thousands of lawsuits by plaintiffs claiming they got cancer from the drug.
Defense attorneys have attacked Emery’s methodology, saying the lab only found dangerous levels of NDMA in ranitidine after being retained for litigation. In a 2020 filing in federal court in Florida, GSK and other defendants said plaintiff lawyers hired Emery after the FDA and regulators around the world failed to find high enough levels of NDMA to sue over.
“The significant financial incentives to design a methodology that would drive up NDMA levels, coupled with the fact that Emery’s analysts were able to exercise uncontrolled discretion during testing (something plaintiffs do not dispute), cast serious doubt on the reliability of Emery’s testing,” the defendants said.
A federal judge in Florida dismissed 75,000 federal cases after finding expert opinions, including the core claim by Valisure that ranitidine can degrade into NDMA, unreliable. A state court judge in Delaware ruled the opposite way on June 3, however, allowing in experts, including Emery, despite objections to their methodology.
Philadelphia County Court of Common Pleas case 220601364
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com