Attorney Ashley Keller
PHILADELPHIA – Mass-tort lawyers who just received crushing news in Delaware are now asking a Philadelphia judge with a reputation for keeping “junk science” out of his courtroom to step down from their Zantac cases.
Ashley Keller and other attorneys at Keller Postman believe Court of Common Pleas judge Joshua Roberts has a financial incentive to favor defendants who make versions of the heartburn medication as they pursue claims it can cause cancer.
Earlier this month, 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, as did a federal judge in Florida.
Plaintiffs lawyers had already tried to get Roberts to recuse himself from their more than 500 lawsuits in Philadelphia, but he refused – sparking an appeal to the state Superior Court.
Last week, they tried again. Their new motion says Roberts’ wife’s new job as partner at Blank Rome complicates his involvement in the Zantac docket because that firm represents one of the defendants – Apotex Corp.
“I can’t represent that her compensation has no direct relationship to the amount of fees or income that the firm makes from Apotex,” said Blank Rome partner Terry Henry, who is handling claims against Apotex.
Roberts has been celebrated by the American Tort Reform Association for keeping other lawyers from presenting certain evidence in the Philadelphia’s Roundup program. Those cases claim the weedkiller causes cancer and are based on a 2015 International Agency for Research on Cancer study.
The first recusal motion cited his wife Shannon McClure’s work at Reed Smith, which represents GlaxoSmithKline. While his denial was on appeal, she took the job at Blank Rome.
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.
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 the Florida ruling tossing their experts, moved on to courts in Delaware, California, Philadelphia and elsewhere.
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.”
