Fleet Phospho Soda Lawsuits in MDL to be Trial Ready by Oct. 2010

The first Fleet Phospho-soda trials in the federal MDL, involving claims of kidney damage caused by use of the recalled laxative during colonoscopy prep, could start as early as October 2010.

According to a Case Management Order issued by U.S. District Judge Ann Aldrich in the consolidated Fleet Phospho-soda litigation, which has been has been centralized in the Northern District of Ohio, the first bellwether cases are expected to be “trial ready” no later than October 15, 2010. Attorneys involved in the litigation will propose the process for selecting the bellwether cases and setting individual trial schedules by March 1st.

There are currently more than one hundred Fleet Phospho-soda lawsuits pending in various courts throughout the country, with at least 80 of the cases consolidated before Judge Aldrich in the federal MDL. All of the lawsuits involve similar allegations that plaintiffs developed a rare type of kidney failure known as acute phosphate nephropathy from Fleet Phospho-soda, after using double doses of the over-the-counter laxative for colonoscopy prep.

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In June, the U.S. Judicial Panel on Multidistrict Litigation consolidated all federal cases involving injuries from the oral sodium phosphate solution before Judge Aldrich for pretrial litigation. At the time the MDL was formed, there were 33 cases consolidated in the Northern District of Ohio. Since that time, another 47 cases have been transferred into the MDL for the coordinated proceedings, and that number is expected to increase in the coming months.

According to court documents filed this summer by C.B. Fleet Co., which manufactured Fleet Phospho soda, they are aware of at least 550 kidney damage claims that have been presented to the company involving use of their product as a bowel cleanser.

A Fleet Phospho soda recall was issued on December 11, 2008, the same day the FDA warned that over-the-counter oral sodium phosphate solutions should not be used to clear out the bowels, as high doses due to the risk of acute phosphate nephropathy. This could lead to kidney failure, dialysis treatment, the need for a kidney transplant or death.

In the first Case Management Order issued in the Fleet Phospho-soda litigation, Judge Aldrich indicated that for the bellwether trials, depositions of experts should be completed by May 15, 2010, with Daubert hearings over “common issues” experts to be held 60 days before trial. Common issues of discovery are to be completed by May 31.

Judge Aldrich also said that the Court will coordinate with state courts where Fleet Phospho-soda lawsuits have been filed. To preserve the defendants insurance assets, Judge Aldrich indicated that it is necessary that the Court be timely apprised of significant activities in the various cases that are pending in state courts throughout the country.


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