What Happened In The MassTorts World Last Week? 2018-Dec-03

Georgia resident's trial over defective Cook Celect Cava Filter is scheduled to begin on January 14, 2019, in the U.S. District of Arizona. In the complaint filed, the plaintiff stated that the filter broke and migrated to other parts in her body piercing her thigh. Ultimately, she got it removed surgically, but a part of the filter still remained embedded in her spine.

Cook Medical Inc. has been allowed to present testimony from a psychiatrist at the upcoming trial who disagrees with the allegations from the woman that the company's blood-clot filter caused her severe pain and emotional distress. On the other hand, U.S. District Judge Richard Young overseeing the federal litigation denied the company's plea to depose two doctors who acted as paid consultants to the plaintiff's expert scheduled to testify in the upcoming bellwether trial. The company filed a motion last week arguing that the plaintiff was unable to prove Cook's post-sale failure to warn conduct caused her injuries.

On May 24, 2018, a Texas jury ordered Cook Medical to pay  $1.2 million to a plaintiff for serious injuries he suffered from the Cook Celect filter and for failure to warn about its hazards. Several Cook IVC filter lawsuits are centralized since October 2014 under MDL No. 2570 (IN RE: Cook Medical, Inc., IVC Filters Marketing, Sales Practices, and Products Liability Litigation), in the Southern District of Indiana.

Florida is suing the nation's largest two drugstore chains, Walgreens and CVS, over their passive conduct to the increasing demand and supply of opioids into Florida.

On Friday, November 23, Attorney General Pam Bondi announced that the companies had been added to a state-court lawsuit filed in May against OxyContin maker Purdue Pharma and several other opioid distributors, including Percocet-maker Endo Pharmaceuticals and Teva Pharmaceutical. In a press release, she said, “CVS and Walgreens played a role in creating the opioid crisis. The companies failed to put a halt on suspicious orders of opioids and dispensed unreasonable quantities of opioids from their pharmacies.” According to the reports from the Centers for Disease Control and Prevention, annually 45 people fall prey to opioid overdose deaths every day in the U.S. In 2016, 42,249 people died due to opioid overdose.   

According to the lawsuit filed, since 2006, Walgreens gave out billions of opioid dosages from its Florida store, 2.2 million opioid tablets from the Hudson store, and sold 2,85,000 pills in a month in an unidentified town. In some Walgreens stores, the opioid sales jumped six-fold in just two years. CVS was accused of selling 700 million opioid dosages between 2006 and 2014, including enormous sales in Hudson and nearby towns. The Rhode-island comprises more than 9,800 CVS stores.

On November 27, 2018, the New York Court of Appeals upheld an intermediate appellate court's order to toss an $11 million asbestos verdict. The court released a one-paragraph memorandum affirming the trial court’s decision based on the evidence presented during the trial. The order stated, ''viewing the evidence in the light most favorable to plaintiffs, the evidence was insufficient as a matter of law to establish that respondent Ford Motor Company's conduct was a proximate cause of the decedent's injuries pursuant to the standards set forth in the claims.

The case was filed by a couple in 2012, against Ford Motor Co., claiming that the man's mesothelioma was caused due to exposure to asbestos during his term of over 25 years when he worked as an auto mechanic servicing Ford Motor Company (Ford) vehicles. The litigation is represented by the wife as the plaintiff after her husband died in March 2014. The same year, Ford was ordered to pay $11 million after being held responsible for 49 percent of that liability by the jury. In 2015, the judgment was tossed because of lack of evidence and upheld by the New York appeals court on February 28, 2017.

Associate Judge Rowan Wilson in a separate opinion stated, ''the plaintiff's attorneys had not rebutted an argument from Ford during the trial that the products he handled may not have been as dangerous as experts testified, and a necessary link in the proof of proximate cause was missing.'' Wilson further wrote, “I do not suggest that Ford is correct as a scientific matter; that question remains for the trier of fact in each case. Here, in my view, there was simply a gap in proof as to the toxicity of the products at issue.”

The only dissent was written by Associate Judge Jenny Rivera who stated that there was no basis to conclude that the verdict was utterly irrational with respect to the compelling evidence of exposure to asbestos while working at Ford.

Thousands of lawsuits also blame talcum manufacturers for hiding asbestos presence in their products linked to the alleged diagnoses of ovarian cancer and mesothelioma.

In an order submitted on November 26, the California Court of Appeal, First District, Division Five, granted summary judgment in favor of Special Electric Company, Inc., regarding claims filed by a plaintiff that he developed mesothelioma due to the asbestos exposure from the company's products.

The plaintiff's motion to dismiss the summary judgment considering the operative Wisconsin statute, preempted by Special Electric’s Chapter 11 bankruptcy plan, was rejected by the California jury. The jury stated that the defendant provided sufficient notice of its dissolution. The company's insurers published a Notice of Dissolution in three Wisconsin newspapers stating the expiry of a two-year statute for claims against Special Electric Company, Inc., on May 8, 2014. The plaintiff was diagnosed with mesothelioma caused due to asbestos exposure from cement pipe and drywall joint compound products in late 2015. He sued the company approximately four months after the claims period expired on the Notice of Dissolution. The jury found that the notice was sufficient and the claims filed by the plaintiff were thus time-barred under the Wisconsin law.

Asbestos-related lawsuits are currently underway in several federal courts over claims of mesothelioma in individuals exposed to asbestos fibers at their workplaces. Talcum powder manufacturers are also named in several asbestos exposure lawsuits filed by individuals who used talc products and suffered fatal side-effects like mesothelioma and ovarian cancer.

In an order submitted on November 27, Judge Richard Mills of the U.S. District Court for the Central District of Illinois denied Boston Scientific Corporation’s motion to dismiss a lawsuit involving complaints against its Greenfield IVC filter. The Illinois judge ruled that the plaintiff asserted plausible claims regarding design defect and inadequate warnings about the IVC filter's hazards.

As per the court order, Boston must face the lawsuit for negligent conduct, extensively marketing the device as safe to use, and failure to warn doctors about associated permanent risks of the blood-clot trapping filter.

In 2005, Boston Scientific recalled about 18,000 Greenfield filters following reports that the filter parts are prone to detach and cause heart or lung embolism. A 2016 publication regarding IVC filter complications stated perforation, migration, and fractures as possible adverse effects. About 9,000 lawsuits are filed against Cook Medical and C.R. Bard over complaints regarding their blood clot filter complications. There is no multidistrict litigation (MDL) formed for Greenfield filter lawsuits, but lawyers have filed individual cases across the nation.

A talcum powder cancer trial involving claims filed by a plaintiff has been postponed to January 2019, after a Manhattan Superior Court Judge Barbara Jaffe announced there were not enough jurors to head the trial. In 2017, the plaintiff was diagnosed with malignant mesothelioma caused by asbestos. The court papers mention that the plaintiff had been a smoker for most of her life and fighting throat cancer. The 78-year-old woman claimed asbestos exposure from Johnson & Johnson's talcum powder was the sole reason for her cancer as her workplace was free of asbestos.

This is the first trial against J&J in New York and the 11th trial linking asbestos with cancer. So far, four mistrials have been granted in talcum powder cancer trials held in the state courts across the nation. A recent case in California ended with a $25 million verdict favoring the plaintiff. Another mesothelioma victim was awarded $117 million last month. J&J has been sued in more than 10,000 lawsuits across the U.S.

The talcum giant continues to deny carcinogenic asbestos presence in their products and has appealed several court verdicts. The multidistrict litigation (MDL 2738; In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation) involving asbestos-in-talc allegation is centralized in the District of New Jersey presided over by Hon. Freda L. Wolfson, U.S.D.J./ Hon. Lois H. Goodman for coordinated pretrial proceedings.