Pregnant woman on a check up
25 March 2015

Zofran Birth Defect Class Actions

You may have heard recently that several large studies have begun to establish an association between the popular anti-nausea drug Zofran and birth defects. In at least four separate lawsuits, mothers have claimed that GlaxoSmithKline, Zofran’s manufacturer, was aware of these risks but marketed the drug to physicians as a safe and effective treatment for morning sickness anyway. Pregnant woman on a check up

None of these claims have been conclusively proven yet. But it would be natural for mothers who took Zofran for nausea and vomiting during pregnancy, and then delivered children with birth defects, to wonder whether they are eligible to file lawsuits of their own.

Without a thorough investigation of your situation, we can’t tell you one way or the other. Our attorneys offer a free consultation to any family looking for more information on their legal options. You can call 1-877-620-8411 or fill out our contact form to the right of this page and schedule a consultation today.

But another question has hung over this discussion. Many different attorneys have referred to potential Zofran lawsuits as “class actions,” while others have spoken only of “private suits.” In this guide, we’ll cover the difference between these two forms of lawsuit and explain why the attorneys at have chosen one over the other.

What Is A Class Action?

In a class action, one or several individuals file a lawsuit on behalf of a larger group. This is especially true when the amount of damages pursued by each defendant is relatively low. In some cases, court and legal fees would quickly outstrip the potential damages, and make undertaking the suit unfeasible in the first place.

In order to qualify as a class action in the Federal Court system, there are four requirements:

  1. the class is so numerous that joinder (when two or more legal complaints are joined together to be heard in one trial) of all members is impracticable
  2. there are questions of law or fact common to the class
  3. the claims or defenses of the representative parties are typical of the claims or defenses of the class
  4. the representative parties will fairly and adequately protect the interests of the class

As a result, Zofran-related claims are not being brought as a class action. This is because the claims and defenses in each case are unique enough that they need to be brought individually. Thus there is no way to fulfill the conditions we listed above, and no way to represent all individuals in a single lawsuit.

Class actions are most common in cases that involve large, corporate defendants where there are identical damages to each person, or where the damages strictly involve an amount of money. Matters like consumer product recalls and stock fraud are often brought as class actions.

Instead of bringing a class action, personal injury matters such as the Zofran litigation against GlaxoSmithKline are often consolidated for discovery, but then proceed to trial as individual cases. This is often referred to as a mass tort which in Federal Court is brought as Multi-District Litigation (MDL). In this way, the common facts are gathered once, but the trials can proceed for damages for each plaintiff.

According to GlaxoSmithKline’s shareholder report, the company spent almost $375 million dollars for legal charges in 2013 alone, primarily for “product liability matters.” By pooling their financial resources, the members in an MDL are more likely to match a huge corporation’s budget, which can make it easier to hire exceptional attorneys and weather a contentious legal battle.

Class actions also work in the court system’s favor. If 1,000 plaintiffs filed separate, or “private,” lawsuits on substantially similar grounds, it would place a large burden on the courts. As a class action or MDL, only one judge needs to be assigned to the case and can make rulings that apply to all plaintiffs.

Potential Drawbacks Of Class Actions & Benefits Of An MDL Mass Tort

Just as members of a class share legal expenses, they also have to share a settlement or court award in the event that the case is won. While the awards in a class action are generally larger than those for individual lawsuits, divided among thousands of plaintiffs, the amounts paid out to any individual member can be paltry. In a mass tort, on the other hand, each plaintiff controls the outcome of their case and the decision of whether or not to settle or proceed to trial.

It’s also likely that many members of a class will never be awarded damages at all. A review conducted by Mayer Brown, one of the world’s largest legal consultancy firms, studied every consumer class action filed in federal court during 2009. Their conclusions were unequivocal: “the vast majority of cases produced no benefits to most members of the putative class.” In fact, they found that in five out of every six cases, the highest proportion of class members to receive any form of settlement was around 12%.

Is Monheit Law Pursing A Zofran Class Action?

No. Our attorneys are currently investigating individual claims. We believe that every family deserves unique consideration and attention. And because the facts of each family’s situation will differ, we believe that each potential case should be treated on its own merits, rather than those of a single, “representative” claim.

Again, you can reach out to our attorneys for a free consultation at any time. Contact us today to learn more about your case’s eligibility.

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