Family In Legal Consultation
16 November 2017

Zofran Lawsuit Families Ask MA Court For Settlement Master

Nearly 400 families have asked the US District Court of Massachusetts to appoint a settlement master for the consolidated Zofran litigation, in which parents accuse GlaxoSmithKline of concealing a link between the nausea drug and major birth defects, including cleft palate and congenital heart conditions.

On October 19, 2017, plaintiffs’ attorneys petitioned District Judge F. Dennis Saylor, who is presiding over the cases, to select an independent third-party who would be able to “articulate[…] and explor[e] settlement related discussions.”

Parents Request Settlement Master For Zofran Lawsuits

As the Plaintiffs’ Steering Committee noted in a supporting memorandum, both families and GlaxoSmithKline have “engaged fully” in the Zofran litigation. Factual investigations have proceeded efficiently, as plaintiffs and the corporate defendant exchange information and evidence. At all times, the attorneys write, lawyers on both sides of the disputes have “worked hard” to push the litigation forward. These efforts were recognized by the Court in a recent status conference, the document continues, but Judge Saylor also asked attorneys “to begin thinking about the ultimate resolution” of the case.

Attorney Discussing Case With Parents

The plaintiffs, as their request makes clear, would like to begin considering potential settlement agreements. To that end, the families have asked the District Court to appoint a settlement master (sometimes referred to as a “special” master), a third party who can guide settlement conferences.

“The appointment of a settlement master does not obligate either party to agree to settlement,” plaintiffs’ attorneys point out. “Rather, it will assist the parties with narrowing the issues to engage in concrete and substantive discussions about an efficient resolution.”

GlaxoSmithKline Is “Not Interested” In Settlement Talks

GlaxoSmithKline isn’t having any of it. In a response filed with the Court on November 2, 2017, the company’s attorneys were blunt: “appointment of a special master would not be a prudent use of the Court’s and the parties’ resources.” The families, GSK writes, simply don’t have a case. Defense counsel has consistently held that “no reliable scientific support” exists to buttress the allegation that prenatal exposure to Zofran leads to major birth defects.

Obviously, hundreds of parents would dispute this statement in the strongest terms, as would a number of prominent medical researchers, including epidemiologists in Denmark and Sweden who have found that Zofran appears to double the risk for certain congenital heart defects.

Be that as it may, GlaxoSmithKline’s public position has always been that the case against it lacks all merit. And without merit, the company sees no reason to discuss settlement possibilities, defense attorneys write; “GSK is not interested in engaging in mandatory, time-consuming meetings with a settlement master.”

Plaintiffs: Resisting Compromise Has Become GSK “Hallmark”

On November 13, 2017, the plaintiffs swung back, writing in a reply that it was “no surprise” to hear of GlaxoSmithKline’s resistance. The company’s “strident tone in resisting any compromise,” attorneys say, “has become a hallmark of GSK’s position throughout this litigation.” And that’s exactly why a third-party peacemaker is necessary, the lawyers reason, because GlaxoSmithKline has so often proved dismissive, if not disdainful, in working through the litigation.

What’s more, the US District Court of Massachusetts has already proposed mediation in prior statements. At a status conference on September 14, 2017, Magistrate Judge Judith Dein “suggested both parties consider th[e] Court’s mediation program as an effective mechanism for resolving complex litigation,” the plaintiffs’ reply continues. “Moving toward this goal, but prior to mediation or ultimate resolution, the parties must be open to engage in discussions.”

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