What Happened In The MassTorts World Last Week? 2018-Jul-16

U.S. District Judge Matthew F. Kennelly, presiding over testosterone multidistrict litigation (MDL), ordered a retrial in the $140.1 million AndroGel verdict for a plaintiff who suffered a cardiac arrest due to the alleged use of the TRT drug. The announcement was made on July 6, 2018, in a case management order which found the jury's findings inconsistent.

Judge Kennelly stated, “In this case, one of the key disputed issues was causation, specifically whether AndroGel caused the plaintiff’s heart attack. The jury was given a single causation instruction that covered all of the claims. Thus the issue of causation on the two claims that have to be retried due to the inconsistency of the jury’s verdicts is anything but ‘distinct and separable’ from the issue of causation on the misrepresentation claims. For this reason, the Court concludes, it would be impossible to limit a new trial to the inconsistent claims ‘without injustice.’ The appropriate remedy for the jury’s inconsistent verdicts on the strict liability and negligence claims is ‘|LS|a|RS| new trial on all claims.”

The case would be retried in the fall after a proper counsel discussion. Bellwether trials are expected to begin for 19 other AndroGel lawsuits between October 2018 and March 2019.

An appeal to consider the statute of limitation to file a Risperdal lawsuit over abnormal breast growth in young men has been accepted by a Pennsylvania Supreme Court. In focus are lawsuits filed by two plaintiffs, claiming Risperdal use led to gynecomastia in them.

Both the plaintiffs were unaware of the link between Risperdal and unusual weight gain and breast growth until they saw television commercials in 2013 regarding similar complications encountered by other individuals. The drugmaker asserts that reports on Risperdal adverse effects were published in 2003 and the FDA ordered a warning label about the same in October 2006. An intermediate appeals court supported the dismissal of their lawsuits last year considering that the statute of limitations for the claims began by October 2006. In November 2017, Superior Court Judge of Pennsylvania wrote, “Appellants cannot hope to establish that they acted with reasonable diligence when they admit that they failed to act at all.” The State Supreme Court agreed to consider this rule on July 5 in response to the appeal filed by the plaintiffs.

More than 7,000 product liability lawsuits over Risperdal against Johnson & Johnson are filed in the Pennsylvania State Court. Two coordinated actions have been filed for Risperdal cases: one in Los Angeles Superior Court (Risperdal and Invega Product Liability Cases, JCCP 4775) and the other in Philadelphia (In Re: Risperdal Litigation, March 2010 Term, Case No. 100300296).

U.S. District Judge Vince Chhabria presiding over the Roundup multidistrict litigation supported the claims by plaintiffs that Monsanto's weed killer is carcinogenic and rejected the company's plea to grant a summary judgment. The matter came in a 68-page ruling issued on July 10 in the U.S. District Court for the Northern District of California concluding the Daubert hearings on general causation.

Judge Chhabria had ordered a two-phase trial for Monsanto, beginning with a "general causation phase" to allow plaintiffs a chance to prove that glyphosate in Roundup causes non-Hodgkin lymphoma (NHL) in humans. The MDL judge stated that the testimony presented by the three experts were "shaky" yet "admissible". The decision permits plaintiffs to move forward to the next phase of the trial where individual plaintiffs need to prove that glyphosate was the cause of their NHL. Monsanto Co. failed in the attempt to knock out about 400 federal lawsuits filed against them over cancer claims. The company continues to maintain that glyphosate in their product is not the reason for anyone who has been diagnosed with cancer.

About 2,200 lawsuits are pending in the U.S. District Court in San Francisco, which are consolidated as a multidistrict litigation (MDL No. 2741 in Re: Roundup Products Liability Litigation) under Judge Vince Chhabria. The first trial in the Roundup litigation is underway in the Superior Court of San Francisco for Dewayne Johnson who was diagnosed with NHL four years ago.

An Indiana man filed a similar lawsuit in the U.S. District Court for the Eastern District of Missouri alleging that the Roundup resulted in his diagnosis of Non-Hodgkin’s Lymphoma (NHL). The manufacturers deliberately withhold the information of carcinogenic side effects of Roundup. The company's carelessness has resulted in multiple deaths due to its product across the United States.

The bellwether trial against Johnson & Johnson over asbestos-in-talc causing ovarian cancer in 22 women concluded with the St. Louis jury awarding $4.7 billion as total damages to the plaintiffs and their families.

The six-week-long trial ended with the jury announcement on July 12 that J&J is liable to pay $4.14 billion in punitive damages and $550 million in compensatory damages. J&J maintains their baby powder used by several women for feminine hygiene does not contain asbestos in them. However, the lead counsel representing the plaintiffs told that the company covered up proof of asbestos presence in their products for more than 40 years. The plaintiffs' lawyer confirmed that fibers and talc particles were found in ovarian tissues of women who used J&J's talcum powder. According to the testimony given by medical experts during the trial, asbestos which is a known carcinogenic substance was intermingled with mineral talc, the primary ingredient in J&J Baby Powder and Shower to Shower Powder. The talcum manufacturer plans to appeal stating that the verdict was unfair since the case was filed by women who were mostly from outside Missouri state.

Several lawsuits are filed against the baby powder manufacturer and suppliers over asbestos-linked mesothelioma and ovarian cancer. A multidistrict litigation (MDL No. 2738; In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation) was formed in 2016 in the District of New Jersey, presided over by Hon. Freda L. Wolfson, U.S.D.J./ Hon. Lois H. Goodman, U.S.M.J. for coordinated pretrial proceedings.

J&J is constantly looking to defend itself from the rising lawsuits against the company that are drastically affecting the company's reputation. The company witnessed a 5% dip in its stock value in the market earlier in February 2018. The dip was a result of the court's documents that supported enough evidence that the company's talc powder contained asbestos and other cancer-causing heavy metals.

Earlier, a $55 million verdict was dismissed by a Missouri Court of Appeals against Johnson & Johnson over a lawsuit filed by a plaintiff, claiming her diagnosis of ovarian cancer was due to J&J's talcum powder used for feminine hygiene. The unanimous three-judge panel overturning the verdict did not rule on the merits of the allegations.

The judges reasoned that the verdict could not stand considering a 2017 U.S. Supreme Court decision that restricted where plaintiffs could file a lawsuit. The decision asserts State Courts cannot hear claims against the companies which are not based in the state or where the alleged injuries did not occur. J&J is a New Jersey-based company while the plaintiff used the products in South Dakota and Minnesota exclusively. During the appeals process, she requested a chance to provide additional evidence connecting J&J and Missouri, but the jury ruled out the request stating there was enough opportunity over the past two years to do so. Multidistrict litigation involving ovarian cancer claims (MDL No. 2738; In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation) was formed in 2016 in the District of New Jersey.

In a recent order, Superior Court State Judge Ana C. Viscomi denied the motion filed by Johnson & Johnson and Imerys Talc America to dismiss a $117 million verdict favoring a man who claimed that prolonged use of J&J's talcum powder caused his mesothelioma. Lawsuits are filed in the State Courts of New Jersey, California, and Delaware alleging the baby powder manufacturer and suppliers over asbestos-linked mesothelioma and ovarian cancer.

The trial is set to begin on July 31 for a complaint filed by a Pennsylvania woman over complications due to Zimmer M/L Taper Hip with Kinectiv and Versys femoral head in the U.S. District for the Eastern District of Pennsylvania.

The trial includes claims filed by a plaintiff who suffered internal injuries following a hip implant surgery in January 2011 and underwent revision surgery in 2015 to remove and replace the device. Zimmer M/L Taper perforated her tissues causing severe complications. Zimmer filed a summary judgment motion on May 29 to prevent the trial claiming the complaint did not follow Pennsylvania’s two-year statute of limitations rule. A bifurcation motion was also filed by Zimmer on June 22 to split the trial into two phases; one dealing with the statute of limitations issue before the product liability allegation. Zimmer has requested for two trials with two separate juries in case a summary judgment is not declared.

The U.S. JPML has planned an oral argument session for consolidation of Zimmer M/L Taper lawsuits on September 27, 2018, in San Francisco, California. Zimmer Hip Replacement lawsuits were centralized on June 9, 2010, in the U.S District of New Jersey before Judge Susan D. Wigenton as a multidistrict litigation MDL No. 2158 (In Re: Zimmer Durom Hip Cup Products Liability Litigation).

In August 2015, Judge Amy D. Hogue in L.A. County Superior Court awarded $9.2 million to a plaintiff who suffered due to a manufacturing defect of Zimmer inc. The company appealed against the verdict and succeeded in withholding it as the lawyers for the company argued that the settlement amount was much more than the damages. Zimmer inc. has a brief history of manufacturing defect and putting profit before the patient's safety. Zimmer Inc. settled all Durom Cup lawsuits in March 2016 for an approximate amount of $314 million.