- Continued Shift of Focus to Consumer Class Actions and Over-the-Counter Drugmakers and Retailers – In 2024, plaintiffs will continue to shift their focus to over-the-counter drugmakers, retailers, and distributors as targets of mass tort litigation, as we noted last year. Recent examples of this trend are consumer class action lawsuits concerning phenylephrine, which followed an FDA Advisory Committee recommendation discussing the effectiveness of the drug in September, and which have recently been consolidated into an MDL in the Eastern District of New York. The phenylephrine litigation also exemplifies a growing trend toward consumer class actions in the pharmaceutical space. These types of claims allow plaintiffs to attempt to bypass the costly and burdensome process of having to prove general and specific causation of personal injury claims using expert witnesses, and for this reason we expect this trend to continue into next year and beyond.
- Decisions on Standing to Bring Consumer Claims – Though plaintiffs are increasingly moving into class action litigation, this shift will not be without its challenges. Standing will continue to be a legal issue to watch in 2024. For example, in an interesting post-TransUnion standing decision this past year, Valiente v. Publix Super Markets, Inc., a plaintiff alleged he suffered harm due to paying a “premium price” for honey-lemon cough drops that purportedly did not contain lemon. The District Court for the Southern District of Florida held the plaintiff lacked standing, in part because the only injury he alleged was monetary, which was mooted by the defendant’s money-back guarantee. We expect similar standing challenges to be decided in 2024, as plaintiffs continue to bring pharmaceutical and medical device lawsuits based on economic damages.
- Litigation Based on Racial and Ethnic Differences in Effects of Drugs, Devices, and Personal Care Products – We will continue to see the burgeoning trend of litigation based on how people of different racial and ethnic backgrounds are affected by certain drugs, devices, and personal care products. This will include lawsuits based on allegations of differences in effectiveness, as seen in litigation regarding pulse oximetry devices plaintiffs alleged were less accurate when measuring blood oxygen levels of nonwhite people, as well as State ex rel. Shikada v. Bristol-Myers Squibb Co., which alleged an anticoagulant drug was less effective in certain patients. We also expect to see lawsuits based on alleged differences in the likelihood of certain adverse events, similar to the hair relaxer lawsuits which—though not alleging a difference in the performance of the product—allege injuries disproportionately impacting women of color.
- Effects of the New Federal Rule of Evidence 702 – The much-anticipated changes to Federal Rule of Evidence 702 went into effect in December of last year, and 2024 will see the results of those amendments. The amendments to Rule 702 put the proponent’s burden of proof into the text of the rule, specify the court (rather than the jury) as the decision-maker in determining whether the four criteria for expert admissibility are met, and restored the court’s gatekeeping function to ensure all expert testimony satisfies these criteria. Now that these amendments are in place, in 2024 we will see trial judges, rather than juries, evaluating whether expert opinions are reliable and therefore admissible in federal courts.
About the Author:
Gina Faldetta is an associate and member of the Litigation Practice in Greenberg Traurig’s New York office. Gina focuses her practice on products liability and mass tort matters. Her experience includes defending class actions and complex litigation matters in federal court and New York State courts.
Greenberg Traurig’s Pharmaceutical, Medical Device & Health Care Litigation Practice includes more than 130+ trial attorneys representing clients in complex litigation in courts across the country. Known for their dynamic courtroom presence, responsiveness to clients, and deep subject matter knowledge, this team of attorneys regularly serves as national, regional, special trial, or science counsel – in both mass torts and individual cases – to leading global companies that produce innovative, life-saving products.