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Michael Monheit
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GlaxoSmithKline Loses Minor Battle In Kentucky Zofran Lawsuit


Court dockets in the US District Court for Massachusetts are still being filled with Zofran lawsuits, but not every transfer has gone without a hitch. A family from Kentucky has already seen its own lawsuit transferred to Boston – and then sent to a State Court in Kentucky two months later.

Multiple Defendants Cause Legal Hiccup For Kentucky Family

We reported on the Kentucky case 1 week ago, on December 8, 2015, and you can find details here. Briefly, the couple says their daughter died due to heart defects caused by Zofran, an anti-nausea drug commonly prescribed “off-label” as a morning sickness treatment.

But the family isn’t just suing GlaxoSmithKline, the drug’s manufacturer. Listed alongside the international pharmaceutical giant as Defendants are the couple’s former doctor, two generic drug companies and a company that publishes drug information pamphlets.

Glaxo Says “Fraudulent Misjoinder” Means Lawsuit Should Be Split Up

GlaxoSmithKline wanted the complaint transferred to Federal Court in Boston, where the Zofran multi-district litigation (MDL) is now forming. The company argued that the lawsuit’s other Defendants, including the couple’s pediatrician, had been “fraudulently misjoined” to the complaint.

Legally, this is a matter of jurisdiction, a question of which court, State or Federal, is allowed to hear the family’s case. Glaxo argued that the couple filed their complaint against multiple citizens of Kentucky solely to prevent the case from being sent to Massachusetts. That’s fraudulent misjoinder in a nutshell, but for the legal theory to hold water in this case, there can’t be any logical relation between the family’s claim against GlaxoSmithKline and its claims against the other Defendants.

If Glaxo had its way, the family’s Zofran lawsuit would be split into multiple legal actions, only one of which would name the company itself as Defendant. That claim could be transferred to Boston and consolidated in the MDL, while the allegations against the family’s doctor would be hashed out in Kentucky State Court.

Federal Judge Says “No,” Glaxo Will Have To Fight In Boston & Kentucky

That’s not what happened, however. On December 9, 2015, the Honorable Amul R. Thapar of the US District Court for the Eastern District of Kentucky remanded the case from Massachusetts to a State Court in Kentucky. For one, Thapar said in his court order, the claims are logically related. The family’s allegations all arise from their son’s death, regardless of which Defendant particular allegations implicate. Second, a common question of fact is essential to the couple’s allegations against every defendant: did Zofran or its generic equivalent cause this child’s death? Thus, Thapar decided, there’s no fraudulent misjoinder here.

The Judge gave even more reasons to send the case back to Kentucky. Splitting the lawsuit up into two claims would force the family to litigate in State Court and Federal Court, but their two lawsuits would repeat one another in substantial ways. Further, many of the couple’s allegations fall outside the scope of the Zofran MDL, so it’s more appropriate to pursue as a single case.

The result? Glaxo won’t have the “cleaner” option of handling every lawsuit in the Zofran MDL. The company will have to go to Kentucky to deal with at least one claim.

Filed initially as case number 6:15-cv-00173-GFVT, the Kentucky Zofran case was briefly registered as 1:15-cv-13749 in the US District Court for Massachusetts. There’s no word on what the claim’s new case number will be.

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