In re Zantac (Ranitidine) Prods. Liab. Litig.
| Decision Date | 31 December 2020 |
| Docket Number | MDL NO. 2924,20-MD-2924 |
| Citation | 510 F.Supp.3d 1234 |
| Parties | IN RE: ZANTAC (RANITIDINE) PRODUCTS LIABILITY LITIGATION |
| Court | U.S. District Court — Southern District of Florida |
ORDER GRANTING RETAILER AND PHARMACY DEFENDANTS’ RULE 12 MOTION TO DISMISS ON THE GROUND OF PREEMPTION, GRANTING DISTRIBUTOR DEFENDANTS’ RULE 12 MOTION TO DISMISS ON THE GROUND OF PREEMPTION, DENYING AS MOOT RETAILER AND PHARMACY DEFENDANTS’ RULE 12 MOTION TO DISMISS ON STATE LAW GROUNDS, AND DENYING AS MOOT DISTRIBUTOR DEFENDANTS’ RULE 12 MOTION TO DISMISS ON VARIOUS GROUP-SPECIFIC GROUNDS
This matter is before the Court on the Defendant Retailers’ ("Retailer Defendants") Rule 12 Motion to Dismiss on the Grounds of Preemption [DE 1584], the Defendant Distributors’ ("Distributor Defendants") (when referencing both Defendants, collectively "Defendants") Rule 12 Motion to Dismiss on the Ground of Preemption [DE 1583] (collectively, "Defendants’ First Round Motions to Dismiss"), the Retailers’ Rule 12 Motion to Dismiss on State Law Grounds [DE 2044], and the Distributors’ Rule 12 Motion to Dismiss on Various Group-Specific Grounds [DE 2045] (collectively, "Defendants’ Second Round Motions to Dismiss"). The Court held a hearing on the Motions to Dismiss on December 15, 2020 ("the Hearing"). The Court has carefully considered the Motions, the Responses [DE 1977,1 2243, 2244], the Replies [DE 2128, 2131, 2323, 2326], the Notice of Supplemental Authority [DE 2488], the arguments that the parties made during the Hearing, and the record and is otherwise fully advised in the premises. For the reasons set forth below, the Defendants’ First Round Motions to Dismiss are GRANTED , the Plaintiffs’ claims are DISMISSED , and the Defendants’ Second Round Motions to Dismiss are DENIED AS MOOT ; the Plaintiffs shall have leave to amend a subset of their claims.2
This case concerns the pharmaceutical product Zantac
and its generic forms, which are widely sold as heartburn and gastric treatments. The molecule in question—ranitidine—is the active ingredient in both Zantac and its generic forms.
has been sold since the early 1980's, first by prescription and later as an over-the-counter medication ("OTC"). In 1983, the U.S. Food and Drug Administration ("FDA") approved the sale of prescription Zantac. MPIC ¶¶ 226, 231, 432. GlaxoSmithKline ("GSK") first developed and patented Zantac. Id. ¶ 230. Zantac was a blockbuster – the first prescription drug in history to reach $1 billion in sales. ¶ 231.
GSK entered into a joint venture with Warner-Lambert in 1993 to develop an OTC form of Zantac
. Id. ¶ 233. Beginning in 1995, the FDA approved the sale of various forms of OTC Zantac. Id. ¶¶ 233, 237. The joint venture between GSK and Warner-Lambert ended in 1998, with Warner-Lambert retaining control over the sale of OTC Zantac in the United States and GSK retaining control over the sale of prescription Zantac in the United States. Id. ¶ 234. Pfizer acquired Warner-Lambert in 2000 and took control of the sale of OTC Zantac in the United States. Id. ¶ 235. The right to sell OTC Zantac in the United States later passed to Boehringer Ingelheim Pharmaceuticals and then to Sanofi. Id. ¶¶ 239-40, 242-44. When the patents on prescription and OTC Zantac expired, numerous generic drug manufacturers began to produce generic ranitidine products in prescription and OTC forms. Id. ¶¶ 249-51.
Scientific studies have demonstrated that ranitidine
can transform into a cancer-causing molecule called N-nitrosodimethylamine ("NDMA"), which is part of a carcinogenic group of compounds called N-nitrosamines. Id. ¶¶ 253, 321, 324, 331. Studies have shown that these compounds increase the risk of cancer in humans and animals. Id. ¶¶ 253, 264-72. The FDA, the Environmental Protection Agency, and the International Agency for Research on Cancer consider NDMA to be a probable human carcinogen. Id. ¶¶ 254, 258. The FDA has set the acceptable daily intake level for NDMA at 96 nanograms. Id. ¶¶ 4, 263.
Valisure LLC and ValisureRX LLC, a pharmacy and testing laboratory, filed a Citizen Petition on September 9, 2019, calling for the recall of all ranitidine products due to high levels of NDMA in the products. Id. ¶ 285. The FDA issued a statement on September 13 warning that some ranitidine
products may contain NDMA. Id. ¶ 286. On November 1, the FDA announced that testing had revealed the presence of NDMA in ranitidine products. Id. ¶ 296. The FDA recommended that drug manufacturers recall ranitidine products with NDMA levels above the acceptable daily intake level. Id. Six months later, on April 1, 2020, the FDA requested the voluntary withdrawal of all ranitidine products from the market. Id. ¶ 301.
After the discovery that ranitidine products may contain NDMA, Plaintiffs across the country began initiating lawsuits related to their purchase and/or use of the products. On February 6, 2020, the United States Judicial Panel on Multidistrict Litigation created this multi-district litigation ("MDL") pursuant to 28 U.S.C. § 1407 for all pretrial purposes and ordered federal lawsuits for personal injury and economic damages from the purchase and/or use of ranitidine products to be transferred to the undersigned. DE 1. Since that time, hundreds of Plaintiffs have filed lawsuits in, or had their lawsuits transferred to, the United States District Court for the Southern District of Florida. In addition, this Court has created a Census Registry where thousands of claimants who have not filed lawsuits have registered their claims. See DE 547.
Plaintiffs filed three Master Complaints on June 22, 2020. DE 887, 888, 889. Plaintiffs contend that the ranitidine
molecule is unstable, breaks down into NDMA, and has caused thousands of consumers of ranitidine
products to develop various forms of cancer. MPIC ¶¶ 1, 6, 19. Plaintiffs allege that "a single pill of ranitidine can contain quantities of NDMA that are hundreds of times higher" than the FDA's allowable limit. Id. ¶ 4. Plaintiffs are pursuing federal claims and state claims under the laws of all 50 U.S. states, Puerto Rico, and the District of Columbia. See generally Consolidated Consumer Class Action Complaint ("CCCAC"). The entities named as defendants are alleged to have designed, manufactured, tested, marketed, distributed, labeled, packaged, handled, stored, and/or sold ranitidine products. MPIC ¶¶ 20, 225.
The Court has entered numerous Pretrial Orders to assist in the management of this MDL. In Pretrial Order # 30, the Court set a case management schedule that is intended to prepare the MDL for the filing of Daubert motions on general causation and class certification motions in December 2021. DE 875; see generally Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In Pretrial Order # 36, the Court set a schedule for the filing and briefing of motions to dismiss under Federal Rule of Civil Procedure 12 directed to the Master Complaints. DE 1346. Defendants filed the instant Motions to Dismiss pursuant to that schedule.
All individuals who file a Short Form Complaint (collectively, the "MPIC Plaintiffs") adopt the MPIC. MPIC at 2.4 The MPIC Plaintiffs allege that they developed cancers
from taking the Defendants’ ranitidine products. Id. at 1. The MPIC "sets forth allegations of fact and law common to the personal-injury claims" within the MDL. Id. at 1. Each MPIC Plaintiff individually seeks compensatory damages, punitive damages, restitution, and all other available remedies. Id. at 1-2.
The MPIC Defendants are entities that "designed, manufactured, marketed, distributed, labeled, packaged, handled, stored, and/or sold ranitidine
." Id. ¶ 20. They are categorized by the MPIC Plaintiffs into five groups: (1) Brand-Name Manufacturer Defendants; (2) Generic Manufacturer Defendants; (3) Distributor Defendants; (4) Retailer Defendants; and (5) Repackager Defendants. Some MPIC Defendants belong to multiple categories.5 Within each category, the MPIC combines distinct corporate entities, including parents, subsidiaries, and affiliates, into single named MPIC Defendants.6 Certain allegations apply to MPIC Defendants across multiple groups.7
The MPIC contains 15 counts: Strict Products Liability—Failure to Warn (Count I), Strict Products Liability—Design Defect (Count II), Strict Products Liability—Manufacturing Defect (Count III), Negligence—Failure to Warn (Count IV), Negligence Product Design (Count V), Negligent Manufacturing (Count VI), General Negligence (Count VII), Negligent Misrepresentation (Count VIII), Breach of Express Warranties (Count IX), Breach of Implied Warranties (Count X), Violation of Consumer Protection and Deceptive Trade Practices Laws (Count XI), Unjust Enrichment (Count XII), Loss of Consortium (Count XIII), Survival Actions (Count XIV), and Wrongful Death (Count XV). Counts I, II, IV, VII, IX, X, XI, XII, XIII, XIV and XV are brought against every MPIC Defendant. Counts V and VIII are brought against every Brand-Name Manufacturer, Generic Manufacturer and Repackager Defendant. Counts III and VI are brought against every Brand-Name Manufacturer and Generic Manufacturer Defendant.
One hundred and eighty-three named individuals (collectively, the "CCCAC Plaintiffs") bring the CCCAC on behalf of themselves and all others similarly situated.8 The CCCAC Plaintiffs are citizens of nearly every state, the District of Columbia, and Puerto Rico. There are no CCCAC Plaintiffs who reside in or purchased ranitidine products from Delaware, Hawaii, Kansas, Maine, North Dakota, Rhode Island, or South Dakota. Each CCCAC Plaintiff asserts that he or she purchased and/or used a ranitidine product during an approximate timeframe.
The CCCAC Plaintiffs bring the action in their individual capacities and on behalf of...
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