What Happened In The MassTorts World Last Week? 2018-Oct-22

In a response submitted on September 28, 2018, Wright Medical Technology Inc. denied allegations that their Profemur Z hip implant was defectively designed and the company knowingly concealed the health risks associated with the device.

The response filed in the District of Connecticut cited several affirmative defenses and stated that the claims mentioned in the lawsuit are preempted by federal law and also, barred by the learned intermediary doctrine. The case involved claims made by a plaintiff who underwent total hip replacement surgery on March 30, 2005, during which he was implanted with Wright's Profemur device. Wright hip implant multidistrict litigation (MDL 2329) which was created in February 2012, was shut down by U.S. District Judge William Duffey on June 22.

Zimmer Inc. and Stryker Corporation face similar allegations over their Hip implant products for causing internal complications due to the faulty design. Stryker Hip Replacement lawsuits are centralized before U.S. District Judge Indira Talwani under MDL No. 2768 – in Re: Stryker LFIT V40 Femoral Head Products Liability Litigation.

A San Francisco jury announced on August 10 that Monsanto may get a new trial in a $289 million verdict awarded to a plaintiff who is suffering from cancer allegedly due to the company's herbicide Roundup.

In her tentative ruling, Superior Court Judge Suzanne Bolanos stated that Johnson failed to present “clear and convincing evidence of malice or oppression” by the weed killer manufacturer. She clarified that the plaintiff did not provide strong evidence that Monsanto workers were aware of the product's links to Non-Hodgkins lymphoma (NHL).  In August 2018, the San Francisco jury held Monsanto responsible for the plaintiff's NHL and ordered the company to pay $250 million in punitive damages. Additionally, $33 million was also awarded to him in "pain-and-suffering" damages and $6 million in actual damages. Judge Bolanos announced to bring down punitive damages to $9 million. The plaintiff's attorney argued the jury to grant $1 million a year for the next 33 years. Monsanto's lawyers debated that since the plaintiff is expected to live for two more years only considering his deteriorating health condition, the punitive damages must be vacated. Judge Bolanos would pass the final rule after reviewing the written arguments by lawyers of both parties.

Roundup lawsuits are consolidated as a part of multidistrict litigation (MDL No. 2741; In Re: Roundup Products Liability Litigation), which holds more than 2,200 lawsuits, presided over by Judge Vince Chhabria, in the U.S. District Court of  San Francisco.

As per a proposed joint agenda submitted on October 9, Judge Richard Seeborg overlooking the Viagra and Cialis multidistrict litigation (MDL No. 2691; In Re: Viagra and Cialis Products Liability Litigation) announced to meet attorneys this week for a case management conference. The conference is planned to review the bellwether trial schedule and provide an update on the litigation status for claims filed by men diagnosed with melanoma skin cancer due to the alleged use of the popular erectile dysfunction drugs.

The conference would also consider a briefing proposal for challenges to the admissibility of the expert witnesses. A series of early bellwether trials are expected to be held for coordinated pretrial proceedings. Ahead of the case management conference, the parties are required to submit an agreed-upon pretrial order which would be used in the completion and execution of Plaintiff Fact Sheets (PFS), along with case specific-discovery and release of plaintiffs' records.

About 865 product liability lawsuits are pending against the manufacturers of these drugs. Each of the lawsuits raises similar allegation that an adequate warning was not sent out to alert consumers about the devastating and life-threatening side- effects of Viagra and Cialis.

As per an order submitted on October 9, 2018, in the U.S. District Court, Northern District of Georgia, the pretrial schedule for the first Ethicon hernia mesh bellwether trial was revived. The parties involved in the Ethicon Physiomesh Flexible Composite Mesh implants litigation are required to complete case selection (10 in total) by February 14, 2019, ahead of the first trial which has been scheduled for December 2, 2019.

Expert depositions in all trial pool cases are supposed to start on June 14, 2019, and the expert discovery would be finished by August 15, 2019. A memorandum in support of the proposed manner of trial, the order of selection of plaintiffs for the trial and time slot for the trials must be submitted by each of the parties by July 15, 2019. Later on July 29, 2019, the Court would rule on those issues. The date for the pretrial conference has not been finalized yet.

More than 1,450 Physiomesh lawsuits are pending in the Northern District of Georgia, where consolidated lawsuits are undergoing coordinated discovery and pretrial proceedings, as part of a multidistrict litigation (MDL No. 2782; In Re: Ethicon Physiomesh Flexible composite Hernia Mesh Products Liability Litigation) overlooked by U.S. District Judge Richard Story. Though several other nations recalled Physiomesh use in surgeries, Ethicon is yet to announce its withdrawal.

A New Jersey Superior Court upheld the $68 million verdict awarded to a 70-year old North Carolina resident over the alleged injuries suffered due to C.R. Bard's defectively designed transvaginal mesh implants, Avaulta and Align. The case was the first one to go for trial in the pelvic mesh litigation in New Jersey Bergen County Superior Court.

The plaintiff was implanted with the now-recalled devices, Avatula Solo Prolapse Repair System and Align Transobturator Stress Urinary Incontinence Repair System in 2009. A series of complications followed since then, leading to multiple corrective surgeries including vaginal reconstruction. However, she continued to suffer from chronic pain and discomfort. In May 2018, the Bergen County jury awarded the woman $ 23 million in compensatory damages, and her husband received $ 10 million for loss of consortium. Later, in April 2018, jurors awarded an additional $ 35 million in punitive damages. The trial court denied Bard's motion, which stated that the massive award was not supported by the evidence provided by the plaintiff and must be tossed. Avaulta transvaginal mesh was pulled out from the market in 2012, and Align devices were withdrawn in 2016.

About 100,000 lawsuits are filed against the makers of transvaginal mesh implants by women who suffered severe internal injuries due to faulty mesh design. C.R. Bard is just one of the several other manufacturers including American Medical Systems, Inc., Boston Scientific Corp., and Ethicon, Inc. accused in the pelvic mesh litigation.

An Illinois Circuit Court jury for Cook County awarded more than $ 6 million to the daughter of a former pipefitter who was diagnosed with mesothelioma allegedly caused due to the asbestos exposure while working with a Crane Packing Company in Chicago. Judge Clare Elizabeth McWilliams, who presided over the trial stated that the manufacturer was 100% liable for the decedent's mesothelioma. The claims were filed by the man's daughter, accusing the manufacturer of providing an inadequate warning to prevent asbestos exposure hazards.

The company has been the defendant in many asbestos lawsuits; however, they have largely solved most of the cases filed against it. Asbestos-related cancer cases continue to be filed in several federal courts across the nation. Apart from industrial workers, asbestos exposure has been known to cause mesothelioma and ovarian cancer in several individuals who used talc-based products for a prolonged period of time. Defendants named in the talcum powder litigation are Johnson & Johnson, Colgate-Palmolive, Imerys Talc North America, and Vanderbilt Minerals.

On October 17, 2018, Boehringer Ingelheim was hit with a $1.25 million verdict by a federal jury in Huntington, West Virginia, awarding a family of a deceased woman who suffered gastrointestinal bleeding due to the company's blood thinner drug Pradaxa.

The verdict included $250,000 in compensatory damages and $1,000,000 more in punitive damages to be paid by Boehringer Ingelheim for their wanton and willful acts in marketing their blood thinner drug. This is the first time the German drugmaker was held liable for misrepresenting the health hazards of Pradaxa. The pharmaceutical company won the earlier three trials for similar claims between 2016 and 2018.

The U.S. FDA approved drug has been reported to cause serious injuries and gastrointestinal bleeding, heart attack, stroke, brain hemorrhage, kidney bleeding, and death. In December 2017, Judge Herndon, who overlooked Pradaxa class action lawsuits, recommended shutdown of the multidistrict litigation (MDL No. 2385) after dismissing pending cases in the docket. The next bellwether trial will commence in February 2019.

According to a formula devised by a government panel of experts, Indian patients who suffered severe complications allegedly due to the faulty hip implants sold by Johnson and Johnson (J&J) might receive ₹1.2 crore each in compensation.

The formula is yet to be approved by the Indian Health Ministry. Two people aware of the development stated the compensation amount would vary between ₹33 lakh to ₹1.2 crore depending on the percentage of disability and age of the person. The expert committee suggested using the Indian Disability Evaluation and Assessment Scale (IDEAS) to assess and certify the disability in patients. According to statements from related people, if the disability is on a higher scale (40-45%) and the patient underwent hip surgery at a young age then the amount of compensation would increase. The amount would be increased after considering future expenses, disturbance of routine and mental agony. After the health ministry approves the formula, the compensation process would begin. This is the first attempt by the Indian government to compensate patients who suffered due to substandard treatment. About 100 individuals who were implanted with J&J's ASR hip implant have already approached the committee asking for compensation for their damages.

Many other manufacturers in the United States are also charged with lawsuits over complications related to ASR and Pinnacle hip implants. DePuy faces more than 20,000 lawsuits over complications related to their hip implants. About 28,000 lawsuits have been filed against various hip implant makers accusing defendants Zimmer, Stryker, Biomet, Wright, and Smith & Nephew of hiding health hazards of the defective hip implants.