Recap of Zofran MDL
By way of recap, on June 1, 2021, Judge Saylor, the federal court judge overseeing the Zofran multi-district litigation, granted the GSK’s motion for summary judgment on the issue of federal preemption. The core of Judge Saylor’s reasoning is that Judge Saylor believed that there was “clear evidence” that had GSK petitioned the Food & Drug Administration (FDA) to place the type of pregnancy warning that Plaintiffs would have sought on Zofran, the FDA would have denied GSK’s request. Because the core of Plaintiffs’ case is that GSK failed to meet its duty in adequately warning patients and doctors on the risk of using Zofran during pregnancy, Judge Saylor opined that because the FDA has recently indicated that Zofran does not require such a warning, the Plaintiffs cannot maintain a claim that GSK was negligent in its failure to warn about the risks of Zofran to pregnancy. With that ruling from Judge Saylor, all the cases filed and pending in the Zofran multi-district litigation closed.
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The Plaintiffs Appeal the Trial Court’s Ruling
Plaintiffs have appealed the case to the United States Court of Appeals for the First Circuit. The briefing is completed, and organizations have submitted amicus briefings for each side. An amicus brief is traditionally drafted and submitted by an organization that is not a party to the action, but has an interest in the outcome. On behalf of the plaintiff, the American Association for Justice submitted an amicus brief. The case is set for oral argument on Tuesday, July 26, 2022, at 9:00 AM EST in Boston.
The Appeal Briefs Can Be Downloaded Here:
If you are interested in reading the appellate briefs, they are available for download here:
Attorney Louis Bograd will be arguing the appeal. Mr. Bograd is with the Motley Rice law firm; his firm is one of the three lead counsel law firms in the Zofran MDL. Mr. Bograd has significant oral advocacy experience, including experience arguing several cases before the United States Supreme Court.
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Streaming Oral Argument
Oral argument is usually finished in about an hour. The website for the Court of Appeals for the First Circuit states that you can listen live to the oral arguments in that Court. The website for that service is here.
We will update this Jenner Law Blog page from time to time with information about the hearing and the Appellate Court’s ruling.