Weekly Mass Torts Bulletin 2022-August-16

Johnson & Johnson announced on Thursday that it will cease selling talc-based baby powder internationally in 2023, more than two years after it stopped selling the product in the United States, which prompted hundreds of consumer safety lawsuits.

The company has decided to migrate to an all cornstarch-based baby powder portfolio as part of a global portfolio evaluation, adding that cornstarch-based baby powder is currently available in many nations throughout the world.

As a result of what it termed "misinformation" about the product's safety and a torrent of legal challenges, J&J said in 2020 that it would cease selling its talc Baby Powder in the United States and Canada. About 38,000 lawsuits have been filed against the corporation by consumers and the survivors of those who have died from cancer, alleging that asbestos, a proven carcinogen, was included in the talc goods.

J&J disputes the claims, claiming that years of governmental approvals and scientific research have established the safety and absence of asbestos in their talc. It reaffirmed the assertion while announcing the product's discontinuance on Thursday. The talc litigation was put on hold when the business split off its subsidiary LTL Management in October, transferred its talc claims to it, and then promptly declared it bankrupt.

According to bankruptcy court records, the business had to pay out $3.5 billion in judgments and settlements prior to declaring bankruptcy, including one where 22 women received a judgment of more than $2 billion. According to a 2018 inquiry, J&J has long known that its talc products contained asbestos, a known carcinogen. Internal corporate documents, trial testimony, and other evidence revealed that J&J's finished powders and raw talc occasionally tested positive for trace levels of asbestos from at least 1971 through the early 2000s. J&J has consistently argued that its talc products are safe and do not cause cancer in response to evidence of asbestos contamination that has been presented in media stories, in court, and on Capitol Hill.

Walgreens can be held accountable for contributing to San Francisco's opioid crisis, a federal judge ruled on Wednesday, because the pharmacy chain over-prescribed highly addictive drugs for years without adequate oversight and failed to recognize and report suspicious orders as required by law.

The city attorney for San Francisco claimed that the pharmacy chain routinely failed to comply with the federal Controlled Substances Act, failed to track opioid prescriptions, prevented pharmacists from vetting prescriptions, and failed to notice the numerous warning signs of doctors and other individuals who were dramatically over-prescribing. He claimed that Walgreens saturated our streets with opioids as a result of pharmacists being under pressure to prescribe the drugs.

According to a U.S. district judge, Walgreens distributed hundreds of thousands of pills over a 15-year period, which eventually led to the city's hospitals being overrun with opioid patients, libraries being forced to close due to syringe-clogged toilets, and syringes being left all over San Francisco's children's playgrounds.

The result, according to a Walgreens representative, is disappointing and is not supported by the facts or the law. He even claimed that the business never produced or sold opioids, nor did it provide them to the online pharmacies and pill factories that stoked the crisis. The plaintiff's ill-advised and untenable attempt to address the opioid issue through an unprecedented extension of public nuisance legislation is flawed. The company is eager for the chance to resolve these problems on appeal.

In response to the city's escalating opioid epidemic, San Francisco sued Walgreens, drug makers, and distributors in 2018. The city claimed that by flooding the city with prescription opioids, the defendants caused a public nuisance. Except for opioid manufacturers Allergan and Teva, who agreed to pay $54 million on the eve of the trial's closing arguments, all of the other defendants have previously reached settlement agreements with the city totaling $114 million. This leaves Walgreens as the only remaining defendant. Money damages were not addressed in the decision made on Wednesday; such issues will be resolved in a subsequent trial.

Over the last 20 years, the opioid crisis has been connected to more than 500,000 fatalities in the United States, including those brought on by heroin, fentanyl made illegally, and prescription opioids like OxyContin and generic oxycodone.

More than 3,000 lawsuits about the opioid crisis have been brought in state and federal courts by state and local governments, Native American tribes, unions, hospitals, and other organizations as a result of the rise in fatalities. The mayor of San Francisco proclaimed a state of emergency in the Tenderloin district last year, stating that something needed to be done about the region's high concentration of drug sellers and users.

According to the city attorney's office, between 2015 and 2020, the number of overdose deaths in San Francisco connected to opioids increased by about 500%, and on an average day, about 25% of visitors to the Zuckerberg San Francisco General Hospital Emergency Department are related to opioids. According to the local health department, 257 persons died of COVID-19 in 2020, compared to 712 deaths from drug overdoses.

A significant portion of San Francisco's estimated 7,800 homeless individuals, many of whom pitch tents in the Tenderloin, struggle with serious mental illness or persistent addiction, frequently both. Some individuals complain in public while naked and in need of medical attention.

Compared to opioid producers or distributors with a wider distribution of medications, pharmacy chains have been sued less frequently. A federal jury in Ohio last year found CVS, Walgreens, and Walmart irresponsibly distributed enormous supplies of painkillers in two Ohio counties in one ground-breaking case.

In May, a lawsuit alleging Walgreens inappropriately prescribed millions of opioids that fueled the opioid crisis was settled for $683 million with the state of Florida. In its arrangement with Florida, Walgreens did not acknowledge wrongdoing and agreed to compensate the state over an 18-year period.

In addition to other states, the company is being sued in Alabama, Michigan, and New Mexico. Walgreens Boots Alliance Inc., headquartered in Deerfield, Illinois, manages a network of around 9,000 pharmacies throughout the US. The opioid crisis has given rise to several lawsuits against Walgreens and other distributors of prescription medications.

Wisconsin, which has already received the first $6 million of the anticipated $500 million in opioid settlement payments, intends to use a large portion of the early funds to increase the availability of fentanyl testing strips and the overdose-reversing medication naloxone, known as Narcan.

According to a state Department of Health Services plan presented to the Legislature's budget committee, other priorities for the $31 million in settlement funds anticipated this year include expanding addiction treatment facilities, helping Native American tribes severely affected by opioid overdoses, paying for residential treatment stays, and enhancing substance use prevention education in K–12 schools. The panel must respond by August 16th.

According to the DHS secretary, the plan outlines crucial areas where more money is required to strengthen our efforts to assist people with opioid use disorders throughout Wisconsin and to avoid future abuse, overdoses, and fatalities.

According to a preliminary count as of Monday that is sure to rise before the number is completed in November, a DHS representative claimed Wisconsin saw a record 1,415 opioid overdose fatalities last year. The previous high was 1,227 fatalities in 2020, which was 32% more than any prior year.

According to early statistics, Dane County had an increase in opioid fatalities last year from the previous record of 123 in 2020 to 139. Seven suspected overdoses, involving at least two fatalities, were recorded in a 24-hour period between last Monday and Tuesday, according to an overdose activity notice issued on Wednesday by Public Health Madison and Dane County.

Health experts blame the COVID-19 pandemic stress, an increase in synthetic opioids like fentanyl, and a rise in the usage of numerous substances concurrently for the nationwide spike in opioid fatalities. According to authorities, fentanyl is now present in every drug supply and is frequently detected in cocaine, heroin, methamphetamine, and even marijuana.

An international deal with Johnson & Johnson and three opioid distributors is expected to deliver more than $420 million to Wisconsin over the course of 18 years. The state got $6 million from the agreement late last month, and it expects to collect a total of $31 million this year. Local governments will receive 70% of the funds, while DHS will use 30% of them for its own purposes.

Additionally, the state will get $10.4 million over a five-year period thanks to a deal with the consulting business McKinsey. DHS has set aside part of the funds to pay for the room and board expenses associated with inpatient addiction treatment.

According to the state's attorney general, planned settlements with Teva and Allergan, legal actions against Purdue Pharma and Mallinckrodt Pharmaceuticals, as well as possible litigation against other businesses, should raise Wisconsin's overall opioid settlement money to more than $500 million.

$2 million will be spent on fentanyl testing strips, which were made lawful in the state in March, according to the DHS plan for the initial $6 million. The single-use paper strips can be submerged in water that has a little sample of a pill, powder, or injectable medicine on it. Fentanyl is visible as lines on the strips. The intention is to empower drug users to make wise choices, including consuming less of a substance or socializing with others rather than alone.

An additional 100 community agencies will have access to Narcan, thanks to a $3 million state initiative. According to DHS, the initiative has given out 65,000 doses of the medication, saving more than 3,200 lives in the last three years. A further $1 million will be used for initiatives tackling the underlying causes of substance misuse, such as housing and assistance for trauma rehabilitation.

The remaining $31 million will be split between $6 million for tribal nations and $11 million to assist in the construction or expansion of treatment and other service centers. Blacks and Native Americans experience nearly twice as many opioid deaths as the state average.

Unlawful fentanyl, one of the deadliest street narcotics, has evolved from a silent killer that people frequently try to avoid to one that many opioid users now actively seek out.

A troubling trend in the nation's ongoing opioid crisis is highlighted by the transition to purposeful fentanyl usage. According to specialists, an increasing number of people are resorting to synthetic drug, which is up to 50 times stronger than heroin, since they have grown accustomed to opioids like it.

Fentanyl was mostly used for recreational purposes on the West Coast up until recently, but addiction specialists have noticed a rise in fentanyl usage nationwide in recent years.

According to an addiction-focused psychiatrist at the Cleveland Clinic, a growing number of Ohio residents are turning to illegal fentanyl as their preferred drug.

Fentanyl is used in medical settings to treat individuals with extreme pain, such as those who have just had surgery. For usage at home, fentanyl skin patches are occasionally given for those with severe pain.

However, fentanyl entered the illicit drug market for the first time roughly ten years ago, mostly in regions east of the Mississippi River.

The white substance had the same appearance as heroin but cost a lot less. Drug traffickers began blending the two substances as a means of extending the supply of heroin. Additionally, fentanyl began to appear in non-opioid narcotics like cocaine and imitation copies of pharmaceutical medications.

Overdose deaths among users who weren't aware they were taking such a potent substance shot through the roof when fentanyl was covertly added to the supply of illicit drugs. According to the National Center for Health Statistics, fentanyl was a key factor in the majority of overdose deaths by 2021.

The head of the McLeod Addiction Center in Charlotte, North Carolina, has observed a shift in the state's drug use patterns in favor of fentanyl. She said that some people mistakenly purchased fentanyl when they believed they were purchasing heroin.

Since fentanyl does not produce the same high as heroin, a Berkeley, California-based epidemiologist who researches illegal drugs at the nonprofit research organization RTI International said he has heard from users that switching back to heroin is extremely difficult once they start using fentanyl.

Experts said that people are also increasingly smoking fentanyl rather than injecting it. A family and community medicine professor at the University of California, San Francisco, predicted that among people who take fentanyl alone, smoking will become commonplace within a year. In that, it reduces the danger of diseases like HIV, hepatitis C, and germs that can cause heart infections transferred by sharing needles, the switch from injecting to smoking could be viewed as a type of harm reduction.

Others were worried that since fentanyl is easier to smoke and frequently more enticing than to inject, it would lead to more widespread usage. Furthermore, there is no evidence that smoking fentanyl lowers the risk of fatal overdoses. Naloxone can cure fentanyl overdoses, although more of the medicine is required to do so because of its high potency. Additionally, compared to other opioids, the substance has a shorter-lasting high, necessitating more frequent usage by users to prevent withdrawal.

A $50 million talc lawsuit against Johnson & Johnson was dismissed in Illinois on Friday, but hundreds of cases are still pending.

The number of talc-related claims has increased from slightly over 20,000 last year to 34,600, according to a recent report from J&J.

Family members of a lady who passed away from ovarian cancer in 2016 filed a lawsuit in Illinois in 2018 seeking up to $50 million in compensation. The three-week jury trial concluded in J&J's favor, finding the pharmaceutical behemoth not accountable.

Johnson & Johnson stated that another jury had unanimously decided that Johnson's Baby Powder is safe, does not contain asbestos, and does not cause cancer after carefully considering the evidence and facts provided.

The company blamed attorneys, noting that the plaintiff trial bar continues to press forward its defamation campaign to the media to generate provocative and unfounded headlines in the hopes of hastening the conclusion of these cases.

J&J was recently found in contempt of court after one of its main witnesses, M.D., VP of women's health at J&J, refused to show up for cross-examination. After then, the court struck her evidence from the record.

According to the legal firm defending the plaintiffs and other parties involved in prior or ongoing talc lawsuits, the contempt order demonstrated J&J's disregard for the rule of law, the court system, the FDA, and women.

The Illinois victory follows a lawsuit filed last week by a well-known Black women's organization on behalf of its members, seeking the courts to order J&J to launch marketing initiatives and invest in outreach to inform Black women about the risk of acquiring ovarian cancer.

2020 saw the removal of J&J's talc products from U.S. stores due to a decline in demand. J&J is already dealing with more than 34,000 reported instances, which may significantly increase its legal costs.

J&J projected its litigation costs at $3.9 billion in a filing with the Securities and Exchange Commission in early 2021, noting that the spending was mostly attributable to talc-related reserves and certain settlements.

In a different well-known case in June, the U.S. Supreme Court declined to consider an appeal to reverse the judgment awarding $2.1 billion in damages in a Missouri lawsuit involving 20 ovarian cancer patients or their families.

According to reports, J&J is considering a strategy to reduce the enormous expenses by establishing a new company to take on the legal duties and then applying for bankruptcy protection. The corporation stated that it has not made a decision regarding the litigation's specific course of action and would only continue to argue for the talc's safety and pursue these matters through the tort system.