only applies in exceptional cases where there are technical and policy considerations which should be decided by the regulators. The court analyzed each of the four factors, including: (1) “the issue involves technical or policy considerations within an agency ’ s expertise as opposed to being in the conventional experience of judges; (2) the issue is within the agency ’ s discretion; (3) there is a danger of inconsistent rulings; and (4) a prior application to the agency has been made.” Even though the court found that half of the factors favored each side, it nonetheless declined to rely on the doctrine because courts have a “virtually unflagging obligation … to exercise the jurisdiction given them.” Id. at *109. In the case of In Re Proton-Pump Inhibitor Products Liability Litigation, 2023 U.S. Dist. LEXIS 71955 (D.N.J. Apr. 25, 2023), the plaintiff initiated the lawsuit alleging that the defendant ’ s proton pump inhibitor drugs caused kidney disease. The defendants, after a few years of litigation, moved to dismiss over nine hundred claims pending the MDL on improper service grounds. Prior to the motion, the court, through case management order No. 60 ordered the plaintiffs to serve the defendants or voluntarily dismiss the defendants. After the order, and after the 30 days elapsed, there were still 640 cases that were not properly served under Rule 4. The court found that the plaintiffs offered no explanation as to their failure to timely serve the complaints. In determined that failure to serve resulted in prejudice because the defendant had to expend time and resources to investigate, consult with opposing counsel, and respond to case management orders only to find out that plaintiffs still intended to proceed against them. Additionally, the court noted that the plaintiffs were late in requesting an extension of time in which to serve the complaints. The court also determined that the defendant did not waive the improper service argument merely by taking part in the MDL. The plaintiffs argued that dismissal of non-served cases was inappropriate where the defendant either answered without raising the service argument, filed a motion to dismiss without raising the service argument, or in cases where the defendant intended to defend the case through conduct. The court was unpersuaded by any of these arguments because only two of the identified cases are those in which defendant answered. The court reasoned that the defendant purposefully did not file a motion to dismiss based on improper service because these defenses were expressly preserved in one of the earliest case management order. Id. at 692. Based on these determinations, the court ultimately dismissed 640 cases in the MDL. Another significant MDL is the APAP litigation currently pending in the U.S. District Court for the Southern District of New York. The plaintiffs allege that the defendants’ acetaminophen products ingested during pregnancy caused the babies to suffer from ADHD and ADD. The defendants filed a motion to dismiss arguing preemption in ASH-ADHD Products Liability Litigation, et al. v. Wal-Mart Stores, Inc. (In Re Acetaminophen) , 2022 U.S. Dist. LEXIS 206190 (S.D.N.Y. November 14, 2022). The plaintiffs sued defendants on behalf of their minor children alleging that the defendant ’ s generic acetaminophen caused autism spectrum disorder and/or ADHD due to prenatal use. The claims were premised on failure to warn. The court initially noted that the product at issue is regulated under the FDA monograph system. In 1988, the FDA published the technical final monograph that regulated the products at issue, and the monograph was finalized in 2009. Drugs regulated under this monograph are required to comply with the FDA ’ s regulations governing labeling, including the at issue pregnancy warning. The court determined the narrow issue was whether or not the defendants could have unilaterally changed the label without violating the FDA ’ s labeling requirements under the monograph. The defendant argued that the term “shall” in the regulation at issue indicated that it must include the specified FDA warning and cannot add anything else to that warning. The court looked to previous variations of the monograph that sought to impart “appropriate general warnings” and concluded that the FDA ’ s goal was to create a broad warning to apply to over-the-counter products and direct pregnant women to seek the advice of their medical professional prior to use. Id. at *20. The defendant also argued that the regulation makes it optional for the manufacturers to include a symbol in addition to the written warning, and because of this, the optional symbolic warning precludes any other warnings. The court rejected the defense position. It concluded that the optional symbolic warning did not provide the only circumstance in which the manufacturer could have included an additional warning. Id. at 27.
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Duane Morris Product Liability And Mass Torts Class Action Review – 2024
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