Fleet Phospho-Soda Lawyers Appointed to Leadership Roles in MDL

U.S. District Judge Ann Aldrich has appointed three lawyers in the Fleet Phospho-Soda litigation to serve in leadership roles, and perform certain actions on behalf of all plaintiffs who have filed lawsuits against C.B. Fleet Co. alleging that use of the over-the-counter laxative as a bowel cleanser during colonoscopy prep resulted in a form of kidney damage known as acute phosphate nephropathy.

In June, all federal Phospho-soda lawsuits were centralized before Judge Aldrich in the U.S. District Court for the Northern District of Ohio in Cleveland. The cases were consolidated for coordinated pretrial proceedings as part of a Multidistrict Litigation, or MDL.

At the time the MDL was formed, 38 Fleet Phosphosoda cases were pending in various federal district courts throughout the United States. Since then, the number of cases transferred to the MDL has grown to more than 100, and Fleet Phospho-soda lawyers are investigating hundreds of additional cases for individuals throughout the country.

According to an order released on September 3, Aldrich appointed attorneys Hunter J. Shkolnik and Stephen J. Foley to serve as Co-Lead Counsel for the plaintiffs. These attorneys will act as the spokespersons for all plaintiffs at pretrial proceedings and in response to inquiries from the court. They will also submit and argue motions before the court, examine witnesses at hearings and negotiate stipulations and potential settlements with the defendants, which would apply to all cases.

In addition, attorney John R. Climaco, whose office is in Cleveland where the litigation is centralized, was appointed as plaintiff’s liaison counsel. He will receive and distribute orders from the Court and documents from opposing counsel and assist in the coordination of activities between both parties.

Fleet Phospho-soda is an oral sodium phosphate solution that was available over-the-counter as a laxative. However, over the past 15 years it was widely promoted and used at double doses to clear out the bowels before a colonoscopy.

A recall for Fleet Phosphosoda was issued in December 2008, after the FDA issued a warning that oral sodium phosphate solutions increase the risk of kidney injury when taken at high doses. The FDA indicated that over-the-counter laxatives like Phospho-soda should not be used for colonoscopy prep, and C.B. Fleet removed their product from the market.

The lawsuits over Fleet Phospho-soda allege that the manufacturer failed to research their product before encouraging doctors to have their patients purchase two bottles of the laxative as an alternative to prescription colonoscopy prep products. The complaints also allege that the manufacturer failed to warn users and the medical community about the potential Fleet Phospho-soda kidney side effects.

While the first Phospho-soda case was filed against C.B. Fleet in 2004, and more than 120 cases were reportedly settled prior to the recall, the number of lawsuits has grown since the product was pulled from the market. The cases were consolidated for pretrial proceedings to avoid inconsistent rulings by different judges in different courts, eliminate duplicate discovery for issues that are common to all cases and to serve the convenience of the parties, the witnesses and the court.

Although the lawsuits are consolidated, each case remains an individual claim and will be returned back to the court where they were originally filed if the cases do not settle or otherwise resolve during pretrial litigation. In addition, while the co-lead counsel and liason counsel will perform actions that benefit all plaintiffs, each claimant will still maintain their own Fleet Phospho-soda attorney who will represent their individual interests.