What Happened In The MassTorts World Last Week? 2018-Dec-17

In a case management order submitted on December 3 in the U.S. District Court, District of New Jersey Judge Claire C. Cecchi, overlooking the proton pump inhibitors (PPI) lawsuits, stated the parties had submitted competing proposals for the upcoming bellwether trials.

The plaintiffs' proposal indicated that Plaintiffs’ Steering Committee (PSC) would submit 8 to 12 PPI lawsuits for bellwether discovery pool by February 28, 2019. The core discovery process would be concluded by June 28, 2019, which would comprise of three case-specific fact depositions presented by each of the parties in every bellwether discovery pool case. For a heightened discovery, the PSC would nominate 6 cases by July 9, 2019; the defendants can challenge any of the plaintiffs' case submission explaining their reasons to oppose by July 12, 2019; to this opposition, the Plaintiffs' Counsel has time till July 16 to reply post which the court would select 6 bellwether trial pool cases by July 28, 2019; after an additional fact discovery on the pool cases, the court would designate three bellwether trial finalists by October 25, 2019.

On the contrary, the defendants have outlined discovery plans only for the New Jersey residents affected by Nexium or any other PPI, who filed claims by November 1, 2018, and submitted a completed Plaintiff's Fact Sheet by December 1, 2018. The defendants also proposed that the Core Fact Discovery must wrap up by July 28, 2019. The proposal allowed the following depositions in each trial pool case: PPI user, if still alive; the user's spouse or representative; other family members or friends as per PFS; the user's prescribing physicians; the user's treating and/or diagnosing physician(s).

Over 2,500 Nexium, Prilosec, Prevacid, and Protonix lawsuits are linked to kidney injury claims by plaintiffs who allege PPI use led to chronic kidney failure and other renal complications. The bellwether trial is set to begin in September 2020. The case verdict would provide insight into how juries might react in similar PPI lawsuits.

In an order issued on December 5, Judge Richard L. Young of the U.S. District Court for the Southern District of New York granted summary judgment to Cook Medical Inc. on failure-to-warn claims in an IVC filter bellwether case filed by a Georgia resident.

The federal judge found that the plaintiff failed to prove that the device maker was at fault for not warning her surgeon about the risks of using the Cook Celect IVC filter. As per Judge Young, the evidence presented at the trial did not indicate that her surgeon relied solely on the device's instructions while treating her. Judge Young quoted, "The undisputed evidence reflects that the doctor (1) did not rely on the Celect 4 IVC filter’s |LS|instructions for use|RS|, (2) already knew at the time of plaintiff’s implant about all of the complications plaintiff experienced, and (3) would not have treated plaintiff any differently even knowing now the complications that she actually suffered. Therefore, the plaintiff is unable, as a matter of law, to establish causation in her strict liability and negligent failure to warn claims.”

In 2014, the plaintiff filed a lawsuit against Cook claiming strict liability and negligent failure to warn, strict liability and negligent design defect, negligent manufacturing, negligence per se, breach of warranty, loss of consortium, and punitive damages. Cook sought a summary judgment to have the case dismissed. The plaintiff failed to respond to the company's bid to strike off the breach of warranty, negligent manufacturing, and loss of consortium claims, which was dismissed eventually by Judge Young. Now, the lawsuit comprises of only strict liability, negligent design defect, and negligence per se claims. This is the second IVC filter bellwether case to go for trial after a similar case was dismissed over the statute of limitation expiry in March 2018.

In an order issued on December 7, 2018, the U.S. Judicial Panel on Multidistrict Litigation denied a separate MDL track to class action lawsuits brought by the nation's opioid-addicted babies. The plaintiffs' bid for a single opioid infant MDL was refused by the panel, indicating that this might lead to a "substantial overlap" with the existing opioid MDL created a year ago.

Several plaintiffs claimed that the current MDL was not taking considerate steps to address their issues; however, manufacturers were against the creation of a separate MDL for opioid-addicted babies. A motion was filed in September seeking a separate opioid-infant MDL and financial assistance for medical monitoring and future medical treatment for the affected child to overcome opioid damages. Session for oral arguments was held by the JPML on November 29, 2018, in New York. As per Thursday's order, the lawsuits representing infants born with neonatal abstinence syndrome (NAS) will remain before Judge Dan A. Polster. The JPML stated, “few efficiencies will be gained by creating a new MDL for NAS plaintiffs. Discovery regarding the marketing, manufacture, distribution, and diversion of prescription opiates in plaintiffs’ cases will substantially overlap with that being undertaken in MDL No. 2804. Significantly, the risk of inconsistent pretrial rulings would increase dramatically were we to create another MDL, as plaintiffs request, before a judge in a district outside the Northern District of Ohio.”

Opioid litigation currently holds more than 1,300 lawsuits filed in several federal court systems, each with a similar allegation that the manufacturers and distributors are responsible for not controlling the drug abuse which has plagued the nation in the recent years.

According to a December 9 Court filing, a federal judge in Texas overseeing Johnson & Johnson’s Pinnacle Hip litigation indicated about 3,300 of 10,000 artificial hip implant cases filed against them are in the process of settlement. This is the first settlement move by J&J for its seven-year-old Pinnacle Hip implant litigation.

J&J will face a trial on January 14 in Dallas where five patients, who were implanted with the Pinnacle hip implant, will proceed with their claims that the company sold defective artificial hips and failed to warn public about the devices' health hazards. Hip implant recipients argue that DePuy Synthes officials marketed Pinnacle hip implant with improper testing and misguided doctors about the safety and efficiency of the device. The Pinnacle hip lawsuits are consolidated before U.S. District Judge Ed Kinkeade since 2011 (MDL 3:11-MD-02244, In Re: DePuy Orthopaedics, Inc., Pinnacle Hip Implant Products Liability Litigation). Instead of negotiating a global settlement, J&J has announced to settle individuals lawyers' inventories of Pinnacle lawsuits. The settlement remains by far confidential as the judge stated, "defendants’ domino confidential settlements have left the court without necessary information about the total or projected value of the settlement."

DePuy faces more than 11,000 lawsuits over ASR and Pinnacle hip implant defects. Similar lawsuits are filed against other manufacturers in the U.S. involving defendants Zimmer, Stryker, Biomet, Wright, and Smith & Nephew.

3M managed to get two bellwether cases dismissed this December linked to lawsuits filed by patients who claimed they got severe infections due to the company's Bair Hugger warming system.

So far, eight bellwether cases that were considered as representative of the entire pool of cases were dismissed voluntarily by plaintiffs' attorneys. The only bellwether case that went to trial was ruled in favor of 3M in less than two hours of deliberation. The first bellwether trial was dismissed in June 2018, and the appeal for a new trial was rejected in September 2018. On October 30, 2018, Lawyer Seth Webb voluntarily excluded two more cases, which were scheduled for December 3, 2018 - the bellwether case of another plaintiff was dropped from the court's list after most of her claims made were dismissed by the Minnesota federal court in September 2018. The case has not been formally dismissed yet.

Overall, more than 550 Bair Hugger lawsuits filed against 3M have been dismissed. The cases were dismissed based on a variety of reasons: plaintiffs failed to support their claims; voluntary dismissal by the plaintiff's attorney; no proven use of Bair Hugger system during surgery; plaintiffs failed to comply with the court orders.

3M maintains its warming blanket system has been in the market for more than 30 years and is completely safe to use. The company blames the entire litigation on faulty science projected by its competitors to spoil the reputation of the warming system. Bair Hugger infection cases are consolidated into multidistrict litigation (MDL No. 2666; In Re: Bair Hugger Forced Air Warming Devices Products Liability Litigation) in the District of Minnesota before U.S. District Judge Joan Ericksen.

In an order issued last week, the Court announced the discovery schedule for six Abilify gambling cases that were selected for a fast-tracked discovery and trial. 

As per the order, case-specific discovery must be completed within January 2019 and March 15, 2019. Expert depositions must be finished at most by April 29, and the court would announce the trial date for Summer 2019. A case management conference has been scheduled for January 2019. Individual trial dates are not finalized yet; they will be released in a separate order.

More than 2,000 federal cases are pending with allegations that Bristol-Myers Squibb and Otsuka Pharmaceuticals marketed Abilify without warning consumers about the risks of compulsive gambling and unusual destructive behaviors. Abilify lawsuits are consolidated into multidistrict litigation before U.S. District Judge M. Casey Rodgers in the Northern District of Florida for coordinated discovery and pre-trial proceedings.

In a December 5 hearing, U.S District Judge Vince Chhabria of the Northern District of California overseeing the federal Roundup lawsuits agreed to separate prospective jurors with a separate questioning session to ascertain any possible bias in similar future cases.

Monsanto, acquired by Bayer in June 2018, asked the federal judge to strike prospective jurors who were aware of the jury's $289 million verdict awarded to plaintiff Dewayne “Lee” Johnson on August 10, 2018. Judge Chhabria's order would establish a separate group of jurors during voir dire based on whether they knew about the verdict. In a November 30 letter, Monsanto's lawyers wrote that the chances of a tainted jury pool were substantial considering the hype over the first verdict. A Bayer spokesperson quoted, "we believe these are positive steps towards preventing the risk of prejudice among jurors in these case.”

Monsanto faces more than 600 Roundup lawsuits over claims by plaintiffs that they developed  Non-Hodgkin’s Lymphoma (NHL) after being exposed to glyphosate from Roundup weedkiller. The first bellwether trial is slated for February 25, 2019, for 70-year-old Edwin Hardeman, who used Roundup in his Sonoma County property in the 1980s and was diagnosed with NHL in 2015.

Last month, a Tennessee judge dismissed a lawsuit that labeled Big Pharma opioid manufacturers as drug dealers of opioids. This is the result of lawsuits filed by 14 prosecutors of 47 Middle and East Tennessee counties against several opiate manufacturers and distributors in 2017.

Eighth Judicial District Circuit Court Judge John D. McAfee ruled that it was legal for drug manufacturers like Purdue Pharma to produce and market FDA-approved medications and sell them through distributors registered with The Drug Enforcement Administration (DEA). He dismissed the argument made by the prosecutors that the defendants in the opioid litigation are part of an "illegal drug market" as per Tennessee's Drug Dealer Liability Act (DDLA). The Act allows innocent third parties to sue drug dealers responsible for their damages. The "innocent third parties" mentioned in the lawsuit include opioid-addicted babies born in Tennessee’s Campbell County.

The judge wrote in his decision that, "the Court disagrees with the plaintiff's assertion that because of the Manufacturer Defendants' business and marketing practices, the otherwise legal production and distribution of opioid medications become illegal by overproducing and by the subsequent criminal conduct of other unrelated actors." The opioid crisis which was declared as a national health emergency in 2017 has affected Tennessee more than any other US state, except West Virginia. Out of 42,000 opioid deaths in 2016 in the nation, 1,186 were from Tennessee.