The U.S. Judicial Panel on Multidistrict Litigation has ordered that all federal Fleet Phospho-soda lawsuits will be consolidated and centralized for pretrial litigation in the Northern District of Ohio.
According to an order issued June 23, 2009, there are currently 38 pending cases that will be consolidated in an MDL, or multidistrict litigation. In addition, as future cases involving kidney damage from Fleet Phospho-soda are filed, they will be transferred to Ohio.
All of the Fleet Phospho-Soda lawsuits involve allegations that the plaintiffs suffered a type of kidney damage known as acute phosphate nephropathy. The condition is associated with the use of high doses of oral sodium phosphate solutions like Fleet Phospho-soda. It is caused by the formation of phosphate crystals within the renal tubes, potentially causing kidney failure, the need for dialysis treatment or death.
Although Fleet Phospho-soda litigation dates back as far as 2004, many of the cases currently pending were filed in the wake of a recall issued in December 2008. The Fleet Phospho-soda recall was issued the same day that the FDA issued a warning about oral sodium phosphate solutions like Fleet’s laxative increasing the risk of kidney injury when taken at high doses.
C.B. Fleet requested that the Panel consolidate the lawsuits over Fleet Phospho-soda in April, arguing that coordinated handling as part of an MDL would help avoid inconsistent rulings, duplicative discovery and serve the convenience of the parties, the witnesses and the court. Fleet also proposed that the cases be consolidated in the Northern District of Ohio.
The Panel agreed, finding that the cases involved sufficiently common questions of fact to qualify under the Federal rules for an MDL.
“All actions share factual questions relating to oral sodium phosphate solution-based (OSPS) products manufactured and sold by Fleet,” wrote Acting Chairman Robert L. Miller, Jr. on behalf of the Panel in the order. “Plaintiffs in all actions challenge the safety of those products and allege personal injuries stemming from their use of those products. In particular, plaintiffs allege that high doses of OSPS products could lead to acute phosphate nephropathy, a type of kidney injury, and that Fleet knew of the risks associated with high doses of OSPS but downplayed or obscured those risks.”
Although some plaintiffs opposed the consolidation or sought to be excluded from the MDL due to the advanced stage of their cases, the Panel refused those requests. The Panel indicated that they would not make any determination about exclusions and would leave those decisions to U.S. District Judge Ann Aldrich from the Northern District of Ohio, who has been assigned to handle the consolidated Fleet Phospho-soda litigation.