EAST ST. LOUIS – Makers and sellers of Zantac antacid products who asserted federal jurisdiction in a cancer suit must defend it in Madison County circuit court, U.S. District Judge Stephen McGlynn ruled on Sept. 15.
He granted remand on an emergency basis, “due to the time sensitive nature of the plaintiffs’ medical conditions.”
Joseph Bayer of Alton and Gwendolyn Culverson of Chicago filed the suit in August, against 26 defendants.
Their legal team includes Ann Callis of Granite City, former Third Circuit chief judge now with Eric Holland’s firm in St. Louis.
The complaint alleges that Zantac caused cancer of Bayer’s esophagus and Culverson’s bladder.
They blame the injuries on ranitidine, an ingredient Zantac no longer contains.
The list of defendants included two Illinois businesses, retailer Walgreens and generic manufacturer Wockhardt.
On Sept. 1, defense counsel Jason Rankin of HeplerBroom in Edwardsville removed the suit to district court.
He stated he would move to transfer it to national litigation in Florida.
He claims they agreed to sue in Florida, in exchange for tolling of limitation statutes and other benefits.
He claims the only exception to the registry’s forum clause was when a federal court lacked diversity jurisdiction.
He claims Bayer and Culverson joined Wockhardt and Walgreens for no reason but to defeat diversity jurisdiction.
On the same day, Seth Crompton of the Holland firm filed an emergency motion to expedite an upcoming motion to remand the suit to Madison County. He claimed that two days earlier, Bayer and Culverson filed a motion in Madison County to expedite their trial.
“The attempt at removal is predicated on the reckless allegation that the Illinois defendants were fraudulently joined in the case,” Crompton wrote.
He claims the Illinois defendants must show that a plaintiff can’t establish a cause of action against them.
On Sept. 2, Rankin moved to stay the suit pending transfer to Florida, Holland moved to remand, and the clerk randomly assigned McGlynn.
Crompton opposed a stay on Sept. 3, and McGlynn gave defendants seven days to respond to the remand motion.
On Sept. 9, the multi district panel entered a conditional transfer order.
Defense counsel Bart Sullivan, of Fox Smith in St. Louis, advised McGlynn of the panel’s order on Sept. 10.
He claims the Florida court could decide the remand motion.
He claims Bayer and Culverson failed to state any claim against Wockhardt or Walgreens that was cognizable under Illinois law.
He claims federal law preempted claims under state law.
Rankin and 11 other lawyers consented to his brief.
McGlynn found defendants had a heavy burden of showing Bayer and Culverson had no chance of success against the Illinois defendants.
He found the claims included allegations of actions the Illinois defendants could have taken under federal law.
“Such is all that is required to establish that at least some possibility exists that an Illinois state court would find that the claims against the non diverse defendants are not preempted,” McGlynn wrote.
On Sept. 16, the multi district panel vacated its conditional transfer order.