Keller
PHILADELPHIA – Correcting an error in a transcript should be enough to stop calls for a Philadelphia judge to step down from Zantac lawsuits found in other courts to be based on unreliable science, defendants are arguing.
The cases say Zantac can cause cancer, but judges in Florida and Delaware and the Food and Drug Administration say there’s no proof. That leaves Judge Joshua Roberts to decide whether to allow plaintiff experts to allege the lethal connection in Philadelphia, and attorneys leading those cases want him to recuse himself.
Roberts’ wife Shannon McClure is a partner at Blank Rome, which represents one defendant – Apotex Corp. That company faces only one lawsuit in Philadelphia out of the more than 500 filed there. When a colleague testified on the recusal issue, he said he “can represent that her compensation has no direct relationship” to fees earned from Apotex.
But the transcript had him saying he “can’t represent.” It was cited by lawyers at Keller Postman like Ashley Keller who are leading the plaintiffs’ cases.
“In any event, even if Plaintiffs were correct that Judge Roberts’ wife’s affiliation with Blank Rome raises any conflict of interest here (they are not), that issue could be resolved by Judge Roberts recusing himself from the single Zantac litigation case involving Apotex,” defense lawyers wrote Jan. 21.
Roberts has been celebrated by the American Tort Reform Association for keeping other lawyers from presenting certain evidence in Philadelphia’s Roundup program. Those cases claim the weedkiller causes cancer and are based on a 2015 International Agency for Research on Cancer study.
Should Roberts stay on the Zantac case, what evidence he allows jurors to hear will be key. Lawsuits are based on testing by the laboratory Valisure LLC, and its methods have been rejected by the FDA.
Plaintiff lawyers thus reject the idea any bias would be remedied by Roberts’ recusal in just the one Apotex case, because his decisions on the master docket will still have an impact on others.
“But any decision that Judge Roberts ever makes in any case will always have the potential of being cited as persuasive authority in some ongoing or future case Blank Rome (or whatever firm Ms. McClure is currently working at) happens to handle,” defendants say.
“If that potential somehow warrants recusal under Plaintiffs’ argument, they are implying that Judge Roberts—or any trial judge for that matter—simply cannot be married to a practicing litigator.”
The litigation against GlaxoSmithKline and others began when Valisure created headlines in 2019 by claiming its testing showed Zantac and its generic equivalents contained ranitidine that changed to NDMA once ingested. Lawyers began spending on advertising for clients and cited the study in ensuing litigation, calling Valisure an "independent" lab.
Valisure had brought its findings in a citizen petition to the FDA, which ordered a short-lived recall. The FDA later said Valisure's methods were unreliable, saying the lab's "artificial stomach" was heated to 260 degrees and subjected to lethal levels of salt to create NDMA from Zantac.
Valisure detected no NDMA in the drug when testing it under normal human conditions. That didn't stop lawyers who, after a Florida ruling tossing their experts, moved on to courts in Delaware, California, Philadelphia and elsewhere.
In December, a Delaware judge seemingly doomed 75,000 cases when he refused to let Keller Postman and other firms back them up with new expert testimony. The state Supreme Court had found the opinions of their previous experts unreliable,
In Philadelphia, Keller Postman says it has noticed a whiff of a “personal displeasure” with calls for an evidentiary hearing on whether Roberts should recuse himself.
“By suggesting that an evidentiary hearing would be appropriate, you would be seeking to impugn my credibility to me, because I’m the one who’s deciding the motion,” Roberts said at a November status conference.
“There is no ability for a party to conduct an evidentiary hearing in support of a motion to recuse,” he added, plus, “The decision is mine. The decision is mine and only mine. There’s no other evidence. You can’t cross-examine me.”
