What Happened In The MassTorts World Last Week? 2018-Nov-19

The parties involved in the Ethicon hernia mesh litigation filed a notice on November 5 in the U.S. District Court for the Northern District of Georgia, submitting an updated list of 37 cases selected for inclusion for the initial discovery pool. Following case-specific discovery, the parties are required to finalize 10 cases in all by February 14, 2019, ahead of the first bellwether trial which has been scheduled for December 2, 2019.

The defendants named in this litigation are J&J and its subsidiary Ethicon. Plaintiffs injured after receiving the surgical mesh implants allege the defendant's Physiomesh Flexible Composite Mesh is defectively designed and manufactured with patients experiencing higher chances of painful and debilitating complications including infection, adhesions, chronic pain, and hernia recurrence; they further hold the defendants responsible for inadequate pre-market testing and failure to warn the medical community and patients of the potential risks.

In June 2017, MDL No. 2782: In Re: Ethicon Physiomesh Flexible composite Hernia Mesh Products Liability Litigation was established by JPML for coordinated discovery and pretrial proceedings. This burgeoning MDL is assigned to U.S. District Judge Richard Story and currently has more than 1,450 pending lawsuits.

Pursuant to the January 2018 decision by a three-judge-panel in Pennsylvania Superior Court, plaintiffs can now seek punitive damages in lawsuits filed over male breast growth caused by side effects of Risperdal. The decision overturned Philadelphia Judge Arnold New's decision passed in October 2015 and opened the window to award punitive damages to thousands of plaintiffs belonging to the Philadelphia Mass Tort docket. With an accelerated trial pace set by Judge New,  three back to back punitive damage trials are scheduled for December 3, 2018; January 22, 2019; and February 4, 2019. The litigation will also witness 160 trials spread over the course of next year, selected from more than 6,700 cases filed in this complex mass tort program where most of the plaintiffs are not Pennsylvania residents.

Defendants Johnson & Johnson and its Janssen Pharmaceuticals subsidiary are facing allegations of failure to warn the medical community and the patients about the possible link between its antipsychotic drug and gynecomastia. Two coordinated actions have been filed for Risperdal cases: one in Los Angeles Superior Court (Risperdal and Invega Product Liability Cases, JCCP 4775, presided by Honorable William Highberger) and the other in Philadelphia (In Re: Risperdal Litigation, March 2010 Term, Case No. 100300296).

Off the nine cases gone to trial in the Philadelphia Court of Common Pleas, four verdicts have been awarded as compensatory damages to victims.

U.S. District Judge M. Casey Rodgers, overseeing the Abilify gambling multidistrict litigation No. 2734, granted plaintiffs' omnibus motion request to remand 21 cases to California state courts from where they originated. Bristol Myers Squibb Company, McKesson Corporation, Otsuka America Pharmaceutical, Inc., and Otsuka Pharmaceutical Co. are the four defendants named in this gambling lawsuit. The decision will now allow the litigation to move forward in the state court system while the bellwether trial process continues in the federal courts.

The plaintiffs claim the defendants failed to adequately warn the users of the development of sudden and uncontrollable urges to gamble or develop other compulsive behaviors in response to the use of Abilify or changing its doses. The antipsychotic drug is prescribed to treat certain mental/mood disorders (such as bipolar disorder, schizophrenia, Tourette's disorder, and irritability associated with autistic disorder).

With no signs of global settlement in spite of three cases settling just before trial in April 2018, Judge Rodgers fast-tracked 6 cases for early discovery in September. The bellwether trials are scheduled to begin in Spring 2019. Abilify cases are centralized in the Northern District of Florida for coordinated discovery and pre-trial proceedings with over 2,000 lawsuits pending in the docket. More cases are expected to be remanded to their home state courts if there is no settlement initiation.

Wright Medical Technology, Inc., named as the defendant in a hip implant lawsuit filed by a plaintiff, was granted a partial motion to dismiss a part of the plaintiff's complaint but denied the motion to strike her request for punitive damages and prejudgment interest. The order was released on November 5 and signed by U. S. District Judge Ted Stewart for the District of Utah.

The plaintiff filed the lawsuit alleging that she sustained injuries stemming from the defective hip implant devices manufactured and sold by Wright Medical Technology, Inc. Wright Medical Technology Inc., Conserve Hip Implant Products Liability Litigation  (MDL No. 2329), created in February 2012, was vacated by U.S. District Judge William S Duffey, Jr. in October 2017, as the purpose of a global resolution had been accomplished thereby allowing the direct filing of new cases. A final Master Settlement Agreement totaling $240 million was agreed as the settlement amount.

Zimmer Inc. and Stryker Corporation face similar allegations over their Hip implant products for causing internal complications due to the faulty design.

Following almost a seven-week long jury trial, Johnson & Johnson was successful in persuading a California jury to dismiss claims made by a woman that the asbestos presence in its talcum baby powder caused her to develop malignant mesothelioma.  

The plaintiff alleged that J&J knew of asbestos fibers in its talc-based products and concealed the risks associated with them. Though the Eureka State Jury agreed the plaintiff was exposed to asbestos-tainted baby powder but reasoned wasn’t a “substantial factor” in causing her cancer.

J&J released a statement in response to its latest win stating, "While we deeply sympathize with anyone suffering from any form of cancer, the science and facts show that her disease was not caused by her use of our talcum-based products". A company spokesperson further said, ''decades of clinical evidence and scientific studies by medical experts around the world support the safety of Johnson’s Baby Powder.”

J&J is also one of the main defendants involved in fighting more than 9,700 talc ovarian cancer lawsuits for several years.

Getinge AB, the Swiss parent company of Atrium Medical Corporation, has set aside an amount totaling to $200 million (SEK 1.8 billion) to cover the ongoing costs of litigation and future hernia mesh settlements involving around 900 lawsuits filed against Atrium Medical in the U.S and Canada.

In a conference call, the Chief Executive Officer Mattias Perjos and Chief Financial Officer Lars Sandstrom of Getinge confirmed that the plan had been outlined to cover all present and future costs linked to the litigation over Atrium hernia mesh defects. Apart from the $200 million compensation, the company also revealed it has liability insurance to cover the expenses involved in some or all of the Atrium hernia mesh cases. The Food and Drug Administration had announced a recall for certain C-Qur surgical mesh devices in October 2013. Atrium hernia mesh multidistrict litigation (MDL No. 2753; In Re: Atrium Medical Corp. C-Qur Mesh Products Liability Litigation) was established by the JPML in December 2016 assigned to the Honorable Landya B. McCafferty in New Hampshire District Court.  The first trials for Atrium hernia mesh defects would commence in the late 2019 or early 2020.

As of September 2018, more than 2,300 hernia mesh lawsuits are pending in the federal MDLs targeting Ethicon’s Physiomesh Flexible Composite mesh, Atrium C-Qur products, and C.R. Bard's polypropylene products.

A second South Carolina jury failed to reach a verdict in a retrial case filed against talcum powder giant Johnson & Johnson involving claims filed by the family of a victim, who died of mesothelioma in 2017, allegedly due to the asbestos exposure from J&J's talcum powder.

Then 30-year-old victim ran a three-person law firm in Columbia along with her husband. Earlier in May, the Darlington County Court of Common Pleas in Charleston was deadlocked in the first trial against J&J. A lawyer representing the family stated that the plaintiffs were unhappy with the mistrial announcement as J&J refused to take responsibility for the damages caused even when the jury urged the parties to consider settlement.  The company continues to deny the presence of asbestos in its talcum products. This is the fifth time the jury has announced a mistrial in a mesothelioma case against J&J as it failed to reach a verdict or because the plaintiff died.

There are about 11,700 lawsuits against J&J, claiming that the company failed to adequately warn consumers about the carcinogenic asbestos presence in its talc-based products causing mesothelioma and ovarian cancer in several individuals. J&J has consistently declined the hazards of its talcum products and is currently appealing all jury verdicts declared against them.

Taxotere hair loss lawsuits move forward in the U.S. District Court, Eastern District of Louisiana for upcoming six bellwether trials which include 18 additional lawsuits nominated by the parties for the fourth, fifth and sixth trials. The cases would undergo Phase 1 discovery between November 1, 2018, and May 1, 2019.

The order issued on November 8 stated, "for the selections on November 1, 2018, and May 1, 2019, the Court expects the parties to select plaintiffs whose claims are representative of the characteristics of claims in the litigation overall. Unless otherwise agreed upon by the parties or ordered by the Court, the venue for each selected case must be proper in a United States District Court over which the United States Court of Appeals for the Fifth Circuit has jurisdiction". According to a recent Taxotere status conference, the parties are required to nominate primary and alternate plaintiffs for the second trial earliest by January 4, 2019. The first bellwether trial would involve the case filed on behalf of a plaintiff, with two alternate cases filed by Louisiana women to go forward if the first case gets resolved or dismissed. The trial is expected to convene on May 13, 2019, to provide insight into how the jury would rule in similar hair loss lawsuits.

The multidistrict litigation ( MDL No. 2740; In Re: Taxotere (Docetaxel) Products Liability Litigation) is overlooked by Chief Judge Kurt D. Engelhardt in the U.S. District Court Eastern District of Louisiana where about 10,000 lawsuits are pending against the chemotherapy drugmaker Sanofi-Aventis U.S. LLC over allegations of permanent hair loss (alopecia).

On October 15, an elderly couple who suffered from cancer was granted an expedited trial by the Superior Court Judge Ioana Petrou in Oakland for allegations that glyphosate in Bayer AG's Roundup weed killer was the reason for the deadly disease.

The lawsuit filed on behalf of a California couple who stated that they both regularly used Roundup since 1971. In 2011, the man was diagnosed with a rare form of cancer, non-Hodgkin’s lymphoma (NHL), while his wife got the same disease in 2015. The couple sued Monsanto in 2017 alleging that Roundup was the reason for their cancer. Attorneys representing the couple requested a fast-track trial considering their deteriorating health condition and short life expectancy. The case will head to trial on March 18, 2019, in California.

This is the second trial against Monsanto company over glyphosate (an active ingredient in Roundup) side-effects. The first trial concluded with a San Francisco Superior Court jury awarding $289 million to a school groundskeeper suffering from NHL. The award was later reduced to $78 million by the jury. Bayer acquired Monsanto which faces about 9,300 glyphosate lawsuits and continues to deny all allegations put on them and plans to appeal the verdict. Individuals affected by Roundup herbicides have filed lawsuits in California, Missouri, and Delaware state courts. Multidistrict litigation has been formed in the U.S. District Court, Northern District of California, overlooked by Judge Vince Chhabria.