What Happened In The MassTorts World Last Week? 2018-Dec-24

Johnson & Johnson recently agreed to pay more than $400 million to settle some product liability cases concerning Pinnacle hip-replacement devices. The officials indicated an average of about $125,000 per case to resolve about 3,300 lawsuits pending against the company over design defects in the Pinnacle hip system.

The settlement would resolve a large chunk of cases from the hip implant litigation which involves claims from several patients who were affected by the metal poisoning from the defective hip implants which were taken off the market in 2013. The remaining cases would be settled before a trial which is underway on January 14, 2019, in Dallas. 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) in the Northern District of Texas.

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

Attorneys representing the family of a man who died of mesothelioma three years ago are requesting the court to uphold a $13 million asbestos verdict declared against Hillshire Brands in August 2017.

In the 1950s the plaintiff grew up in Betteravia, a small town west of Santa Maria that surrounded the Union Sugar Plant. His surviving family members filed a lawsuit against numerous companies in Alameda County Superior Court accusing them of negligent conduct in handling asbestos exposure, which led to the plaintiff's death at the age of 61 in July 2015. The jury found Hillshire liable for acting negligently while operating the factory in the 50s and asked the company to pay $13 million to the plaintiff's family. Hillshire appealed the verdict stating that the mere presence of asbestos at the company premises was not enough to hold them liable for the plaintiff's death. Plaintiffs' attorneys opposed the dismissal of the verdict and claimed the company failed to examine the asbestos problem between 1954 and 1972, and Hillshire’s defense expert confessed being unaware of Hillshire complying with any existing OSHA (The Occupational Safety and Health Act) rules prior to 1973. As per the plaintiffs' attorneys, medical experts confirmed asbestos exposure from sugar refinery was the reason for the plaintiff's mesothelioma.

Asbestos-related lawsuits are currently facing trial in several federal courts over claims of mesothelioma in individuals exposed to asbestos fibers at their workplaces. Talcum powder manufacturers are also defendants in several asbestos exposure lawsuits filed by individuals who used cosmetic talcum powder for personal hygiene and suffered fatal side-effects like mesothelioma and ovarian cancer.

On December 12, the U.S. Centers for Disease Control and Prevention (CDC)’s National Center for Health Statistics published a National Vital Statistics Report warning that the opioid fentanyl has been associated with more overdose deaths than any other drug in the U.S., amounting to nearly a third of all overdose deaths.

Considering the data from 2011-2016 National Vital Statistics System-Mortality files, the recent report suggested fentanyl-related deaths amounted to 29% of opioid overdose deaths in 2016 leading to more than 18,000 deaths. In 2011, oxycodone was blamed for 13% of fatal overdose deaths, while 11% of overdoses involved heroin. Dr. Andrew Kolodny, the co-founder of Physicians for Responsible Opioid Prescribing, cautioned that the opioid crisis has emerged strongly as ever and stated that, "fentanyl is so deadly, in the geographic regions where it's been flooding in, deaths soared as we've never seen before." From 2012 to 2015, heroin was the reason for most overdose deaths. But in 2016, fentanyl was linked to increasing overdose deaths.

Total overdose deaths spiked to 54% each year between 2011 and 2016 resulting in nearly 64,000 deaths in 2016 alone. The 10 most frequently reported drugs from 2011–2016 included fentanyl, heroin, hydrocodone, methadone, morphine, oxycodone, alprazolam, diazepam, cocaine, and methamphetamine. As a synthetic opioid painkiller Fentanyl is 50 to 100 times more potent than morphine, developed mainly for cancer pain. The CDC issued a health alert for fentanyl and fentanyl analogs and suggested that the first responders and medical providers be given updated recommendations.

In an order submitted on December 10, the New York Supreme Court rejected Colgate-Palmolive's motion for summary judgment in a Cashmere Bouquet talcum powder lawsuit with the conclusion that the issue still remained whether the plaintiff's use of the talcum powder led to her mesothelioma. The order stated summary judgment could not be granted “when there is any doubt” on causation.

The plaintiff claimed in her lawsuit that she developed mesothelioma as she was in contact with Colgate-Palmolive Co.’s cosmetic talc product from 1968 through 1985. She filed suit against Imerys Talc America, Inc. and Cyprus Amax Minerals Companies blaming them for her illness. In their motion for summary judgment, the defendants, Imerys and Cyprus asserted that they both are Delaware corporations and were not involved in mining, manufacturing, research, development, designing, or testing of the talcum powder in the state hence, they cannot be held liable in New York for the damages caused to the plaintiff. The Supreme Court denied their motion considering that both companies actively sold and shipped talc to Colgate-Palmolive in New York for nearly six years hence the case must proceed to trial.

Mesothelioma affected plaintiffs have filed asbestos exposure lawsuits in several state and county courts. Individuals working in factories and mines where asbestos products are used often fall prey to the deadly form of cancer.

In a December 14 ruling, 7th Circuit of U.S. Court of Appeals Judge Amy St. Eve stated the Boeing Co.‘s removal of an asbestos-linked mesothelioma case to federal court was valid, even though it did not provide evidence supporting its federal contractor defense. The appeals court indicated since the federal government was in control of its bomber production and was aware of the hazards of the asbestos exposure, the case belongs under federal jurisdiction. The ruling was announced in agreement with Circuit Judges Diane Sykes and Amy Barrett.

The negligence lawsuit was filed by Bruce and Barbara Betzner in Madison County Circuit Court against Boeing in April 2017. The lawsuit blamed the company for Bruce Betzner's mesothelioma from exposure to asbestos when he worked on the assembly of B-1 and B-1B bombers between the years 1982 and 1987 in the Dallas plant. In June 2018, Boeing was asked to remand the case to U.S. District Court for the Southern District of Illinois on the basis of "contractor defense", in that the U.S. Air Force was liable for the alleged asbestos exposure since it was in charge of the design and production of bombers. However, District Judge  Staci Yandle denied the motion asserting that Boeing failed to present any “facts, supporting affidavits, or exhibits” to back up its federal contractor defense argument. Judge St. Eve stated Boeing was only required to submit a “short and plain statement of the grounds of removal” from state to federal court and told Boeing's allegations are “plausible on their face, this case belongs in federal court.”

Madison County courts have thousands of asbestos exposure cases filed with 1,078 mesothelioma claims among 1,299 civil filings. Asbestos exposure cases are also underway in several states courts accusing talcum powder manufacturers of false marketing and knowingly hiding talc’s mesothelioma and ovarian cancer risks.

As per a notice posted at the Federal Registry, members of the U.S. Food & Drug Administration's (FDA)  Obstetrics and Gynecology Devices Advisory Committee will soon convene a meeting on February 12, 2019, to discuss transvaginal mesh implant complications in Pelvic Organ Prolapse Repair.

The notice stated, “FDA is convening this meeting to seek expert opinion on the evaluation of the risks and benefits of these devices. The Committee will be asked to provide scientific and clinical input on assessing the effectiveness, safety, and benefit/risk of mesh placed transvaginally in the anterior vaginal compartment, as well as identifying the appropriate patient population and physician training needed for these devices.” Public comments on this issue will be accepted by the FDA until January 27.

The meeting has been scheduled to identify concerns about the complications of the devices and revise the regulatory guidelines to protect patients from harmful situations. In the past, defective surgical mesh products were pulled off the market after a huge number of complaints reported adverse events like recurrent prolapse, neuromuscular problems, vaginal scarring/ shrinkage, urinary problems. More than 100,000 women have been affected by transvaginal mesh defects. Lawsuits linked to TVM complications are filed in several state courts against American Medical, Systems, Inc., Boston Scientific Corp., C.R. Bard, Ethicon, Inc., and other defendants have either settled or are in the process of settling many of these claims.

As per a joint status report submitted by the parties of Proton Pump Inhibitors (PPI) litigation on December 14, there are currently 16,000 tolling argument claims submitted. If the arrangement is not extended, each of these claims may be filed before the tolling period expires on January 31, 2019, for federal court cases, and May 31, 2019, for state court cases.

The parties are required to meet the presiding U.S. District Judge Claire C. Cecchi this week to discuss the status of tolling arguments submitted by PPI plaintiffs and also to select a small group of claims for early trial dates in the federal court. Earlier this year, the manufacturers allowed plaintiffs to file delayed claims until January 31, 2019, to avoid additional litigation charges. A process established in 2017 allowed potential plaintiffs to toll the ongoing statute of limitations by providing little information about the drug usage and kidney injuries they suffered.

There are currently more than 2,500 Nexium, Prilosec, Protonix, and Prevacid lawsuits pending in the federal court system covering allegations that inadequate warnings were given out about the possible kidney risks linked to PPI drugs.

Plaintiffs involved in Monsanto's weed killer Roundup litigation opposed the federal judge's proposal to bifurcate upcoming bellwether trials into separate general causation and specification trials and called the decision as "unorthodox" and "ill-advised."

The agrochemical company would prefer the federal court trials to be conducted in two separate phases; one involving medical causation; the second phase to address liability issues if the plaintiffs prevail in the first phase. The company asserted the issue of causation and compensatory damages are separate from the negligent conduct claims filed against them and bifurcation suggested by the judge would unnecessarily delay the case resolution. Plaintiff attorneys call the bifurcation decision as "unheard of" in the modern multidistrict litigation (MDL) which is under U.S. District Court Judge Vince Chhabria.  

More than 600 lawsuits are pending in the MDL alleging exposure to glyphosate-based herbicide manufactured by Monsanto developed deadly cancer in several individuals. Judge Chhabria indicated he would rule on this issue before Christmas. The next bellwether trial date is set for February 25, 2019, involving claims filed by a California resident Edwin Hardeman.

Chancellor Dewayne Thomas of the Chancery Court of Mississippi’s First Judicial District in Hinds County on Tuesday denied Johnson & Johnson's motion to escape a talcum powder lawsuit filed by the state attorney general alleging the company failed to adequately warn residents of the risks of its talc-based products and thus increased their risks of developing ovarian cancer due to exposure to asbestos contained talc. The court denied the overturn request considering it would be a “remiss” if the lawsuit was tossed before allowing the “full development of all potentially relevant facts.”

J&J failed in yet another overturn attempt on December 19, 2018, as Judge Rex Burlison in St. Louis rejected the company’s bid to set aside a $4.7 billion July verdict which was awarded to 22 women who blamed asbestos exposure from the company's Baby Powder and other talc products for their ovarian cancer.

Regulators in India are testing J&J's Baby Powder after a stunning report suggested that the company was aware for years that some of its talc products had the presence of asbestos in them. The talcum giant confirmed that officials from India’s Central Drugs Standard Control Organization (CDSCO) and some state-based Food and Drug Administrations (FDA) visited its manufacturing plants in India. As per Reuters, J&J has tested asbestos presence since the 1970s, and several tests conducted revealed traces of asbestos in the Baby Powder and Shower-to-Shower powder. Reuters suggested Internal memos and documents indicated the test reports made officials at Johnson & Johnson worried, but still, they failed to warn consumers or regulators about asbestos traces in their talc-products.

San Francisco is the latest to sue a slew of prescription drugmakers and distributors alleging that they went against the federal laws by marketing opioids as safe to use drugs. San Francisco City Attorney Dennis Herrera filed a lawsuit on behalf of the city of San Francisco and the state of California in the U.S. District Court in San Francisco accusing the drug providers like Purdue Pharma of fraudulent practices and causing public health epidemic. The lawsuit would be transferred to the federal court in Ohio where 1,200 similar opioid lawsuits, filed by various cities, counties, and states, are under U.S. District Judge Dan Polster.

Judge Dan Aaron Polster of the U.S. District Court in the Northern District of Ohio Eastern Division, who overlooks the opioid multidistrict litigation recently denied a motion to dismiss filed by pharmaceutical companies. The judge allowed about 1,500 lawsuits brought by communities across the nation including the city of Providence, to move forward in the litigation. Opioids such as oxycontin, oxycodone, and fentanyl have been linked to respiratory disorders, heart complications, addiction, and overdose deaths. A recent report by the U.S. Centers for Disease Control and Prevention (CDC)’s National Center for Health Statistics revealed fentanyl as the most dangerous drug used in the U.S.