We have previously written about a Zofran recall. A separate litigation already underway alleges the drug Zofran (Ondansetron) causes birth defects in babies born to mothers who used the drug during pregnancy.

After families sued the maker of Zofran, Glaxo Smith Kline (“GSK”), and other related companies around the country, the lawsuits were combined before one judge in federal court, the Honorable F. Dennis Saylor in the United States District Court, District of Massachusetts. That multi-district litigation (“MDL”), MDL 2675, has been pending for some years now and it is coming to a close.

Defendant GSK recently filed a motion for summary judgment. It argues that even if Plaintiffs’ admissible evidence is true, as a matter of law, the Plaintiffs lose and the case should not be decided by a jury. In short, Defendant appears to be arguing that there is no scientifically reliable evidence showing the drug can cause birth defects and the company did not have to, and in fact, could not change the drug label to warn against it because FDA had previously rejected requests to do so.

While this motion for summary judgment is pending, Defendant filed another motion this week. It is a motion for an order to show cause. A motion is simply a written request for a court to do something, such as compel a party to produce evidence or render a ruling on a legal issue. In this case, Defendant is asking the Court to order specific Plaintiffs to explain why the Court should not dismiss their cases. The basis for this request is that the Plaintiffs have not produced information they are required to produce.

When MDLs are formed, the plaintiffs and defendants sometimes work together to develop template documents that exchange basic information about each individual’s case such as the individual’s prior medical history and experience with the product at issue. The parties sometimes agree to have each plaintiff sign an authorization for certain documents like medical records to be released to defendants. In the Zofran MDL, Defendant is alleging the Plaintiffs did not do so. As Defendant’s Motion explained, “Through a sequence of Orders, this Court required Plaintiffs to submit Product Identification Fact Sheets (“PID”), Plaintiff Fact Sheets (“PFS”), and Authorizations. . . . . Plaintiffs . . . . failed to respond to several PFS questions and did not provide all of the required duly executed records release authorizations.” (Def.’s Mem. Supp. Mot. Or. Show Cause at 1.)

Defendant claims it has been prejudiced by this failure and wants the cases dismissed, and for the Plaintiffs to pay $500. Apparently, these Plaintiffs have not been responsive.

This Motion underscores a point we’ve made many times.

Your case could be dismissed with prejudice – thrown out of court and gone forever, you never get to sue the defendant for the injuries again. Some of us at KBA are pretty neurotic and worry all the time; GSK’s Motion in the Zofran litigation shows what that caution is healthy and reminds all of you plaintiffs out there to submit your paperwork on time and keep in touch with your attorneys.