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MADISON - ST. CLAIR RECORD

Thursday, March 28, 2024

Zantac defendants argue Callis clients avoided Florida court for a friendlier Madison Co.

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EAST ST. LOUIS – Defendants in a Florida court’s national litigation of Zantac cancer suits claim that clients of Ann Callis sued them in Madison County to escape an obligation to sue in Florida.

The suit sits on middle ground for the moment, because defendants removed it to U.S. district court on Sept. 1. 

On Sept. 2, plaintiffs Joseph Bayer of Alton and Gwendolyn Culverson of Chicago filed an emergency motion to remand it to Madison County. 

District Judge Stephen McGlynn presides. 

Callis presided as chief judge at Madison County courthouse from 2006 to 2013. 

Her name appears on a current list of finalists for U.S. attorney at the Southern District of Illinois. 

She practices with Eric Holland’s firm of St. Louis. 

Holland and firm members Seth Crompton, Greg Jones, and Erika Stassi represent Bayer and Culverson along with Callis. 

Ashley Keller of Chicago, a leader in the Florida litigation, also represents them. 

Crompton filed the complaint on Aug. 2, against 24 defendants from other states. 

He also sued two Wockhardt entities from Illinois as generic manufacturers and two Walgreens entities from Illinois as retailers. 

He claims Zantac caused cancer of the esophagus in Bayer and cancer of the bladder and a kidney in Culverson. 

He blames their injuries on ranitidine, an ingredient Zantac no longer contains.  

In the removal notice, Jason Rankin of Hepler Broom in Edwardsville claims plaintiffs commenced the action improperly. 

He wrote that the only exception to the registry’s forum selection clause was when a federal court lacked diversity jurisdiction.      

He wrote that plaintiffs fraudulently joined Wockhardt and Walgreens as Illinois citizens to defeat diversity jurisdiction. 

He wrote that he would move to stay pending transfer to Florida. 

According to Rankin’s brief, since February 2020, actions involving thousands of plaintiffs had been filed in Florida or transferred there. 

District Judge Robin Rosenberg established a voluntary registry where individuals who didn’t yet wish to sue could register potential claims. They were eligible for benefits including the tolling of a statute of limitations, and in exchange they agreed to file any action in the Florida court. 

Plaintiffs filed a master complaint for personal injuries and class action complaints for consumers and payors. 

Keller’s firm signed the complaints, among others, and Rosenberg appointed Keller as chair of a briefing committee. 

Rankin wrote that last September, Bayer and Culverson joined the registry. 

On Dec. 31, Rosenberg ruled that federal law preempted claims of design defect or failure to warn against generic manufacturers and retailers. 

Rankin wrote that Keller argued against preemption. 

He wrote that Rosenberg granted leave to amend some claims, and plaintiffs amended them in February. 

They filed a personal injury complaint and a consumer class action again, plus a class action for medical monitoring. 

Rankin wrote that on June 30 and July 8, Rosenberg again ruled that federal law preempted claims against manufacturers and retailers. 

“These preemption motions were once again argued for plaintiffs by Mr. Keller,” he wrote. 

He wrote that shortly thereafter, Bayer and Culverson filed a complaint with claims nearly identical to those Rosenberg dismissed. 

He wrote that plaintiffs named Wockhardt, despite Rosenberg’s orders. 

He wrote that generic manufacturers and retailers lack authority to unilaterally alter Zantac’s labeling or design the product differently. 

He addressed Keller’s actions without harsh words and chose “not in good faith” over bad faith on one point. 

In return, Crompton packed the remand motion with harsh words. 

Crompton called removal “a transparent ploy to delay the trial of two individuals who are dying of cancer caused by these defendants.” 

“The only way to avoid defendants’ attaining an unjustifiable advantage from their premeditated, repeated, abusive litigation tactics is to remand immediately and impose sanctions,” he wrote. 

“The sole purpose for shouting ‘registry’ is to attack Mr. Keller in personal and professional terms and hope that this court allows a transfer to the multi district litigation out of some sense that the multi district litigation court must contain his alleged perfidy. 

“These attacks are discourteous and unprofessional.” 

He wrote that defendants attempted removal on the same grounds in scores of cases and lost time after time. 

“One definition of insanity is doing the same thing over and over, expecting different results,” he wrote. 

“Are defendants or their counsel insane? No. They are all too rational. 

“Defendants’ only goal with this removal is to slow the gears of justice, and to accomplish that they need not win, they need only remove it in the waning hours of the last possible day, brief the case slowly, have it transferred to the multi district litigation, stayed, then, perhaps, briefed slowly again for an inevitable remand. 

“The only question is whether this court will permit defendants’ gambit to delay elderly cancer victims’ trials to pay off.” 

He saved some scorn for Rosenberg, writing that she issued adverse opinions and not papal bulls. 

“Counsel and state court jurists of reason are free to respectfully disagree with those orders,” he wrote. 

He wrote that her rejection of his argument would likely be overturned on appeal. 

McGlynn directed defendants to respond by Sept. 10.    

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