What Happened In The MassTorts World Last Week? 2019-Aug-26

On August 6, 2019, a class-action lawsuit was filed in the U.S. District Court for the Central District of California alleging that Lowe's Home Centers failed to warn customers about known Roundup health risks and other side effects linked to the glyphosate weed killer.

The complaint filed by the plaintiff named Lowe’s Home Centers and other 100 companies as defendants. The lawsuit seeks class-action to pursue damages for all buyers of Roundup products in California.

According to the class action, it was the defendant’s duty to inform customers about the risks linked with the widely marketed weedkiller but failed to do so at its retail locations. The lawsuit indicated that the named defendants were provided with a Safety Data Sheet (SDS) by the manufacturer Bayer AG, which specified the known risks. SDS warned that the inhalation and skin contact is likely routes of exposure to glyphosate, the active ingredient in the weedkiller.

Earlier this month in Missouri, Bayer's motion to delay a Roundup lawsuit, scheduled to go to trial in St. Louis Circuit Court tentatively on October 15, was denied by Judge Michael Mullen last week. Judge Mullen said that the depositions and discovery should be continued till September 16 and the jury selection process will begin by October 10.

Bayer is facing more than 18,000 Roundup lawsuits consolidated under federal multidistrict litigation (MDL No. 2741; In Re: Roundup Products Liability Litigation) in the Northern District of California, presided by U.S. District Judge Vince Chhabria.

Lowe’s Home Centers failed to instruct its users on the usage of herbicides from a safety perspective. The packaging of Roundup only states moderate eye irritation. The consumers would have opted out from purchasing Roundup. 

Until now 17 countries have put a restriction on the usage of Roundup. This past July Los Angeles County stated that they would stop the use of glyphosate-based herbicides in their property due to the fear of the development of Non-Hodgkin lymphoma. 

As per the CBS News report, Bayer is ready to settle 18,000 pending Roundup claims amounting to $8M. However, no such offer has been made by Bayer yet. To date, Bayer has been unsuccessful in three Roundup lawsuits where juries have awarded judgment favoring plaintiffs who have been diagnosed with cancer due to the use of the herbicide. 

Roundup herbicide was once considered the best gift for agricultural fields. It ruled the market right from the mid-70s until 2013, when some shocking hidden facts were unveiled about this product. 

In March 2013 an email sent by a senior toxicologist from Environmental Protection Agency (EPA) to her colleague mentioned the carcinogenic attributes of Roundup herbicide, which were not disclosed to the public due to Monsanto’s strong control over EPA. 

Finally, in the year 2015, World Health Organization (WHO) declared that there was a linkage between glyphosate and Non-Hodgkin lymphoma and other types of cancer. Roundup herbicide was labeled as a category 2A- product by the IARC, which means it is probably carcinogenic.

Drugmakers Endo International Plc and Allergan Plc have agreed to pay $15 million to settle the opioid crisis and make an exit from the lead bellwether cases in multidistrict opioid litigation.

The tentative deal was announced on Tuesday, way ahead of the first trial out of the 2,000 lawsuits pending in a federal court in Cleveland. The remaining defendants will face the trial on October 21 which includes drugmakers Purdue Pharma LP, Teva Pharmaceutical Industries Ltd, and Johnson & Johnson and drug distributors McKesson Corp, Cardinal Health Inc, and AmerisourceBergen Corp.

Endo Pharmaceuticals Inc. said it would pay $10 million and donate up to $1 million worth of its blood pressure drug Vasostrict and its emergency allergy treatment Adrenalin to Cuyahoga and Summit counties. Allergan tentatively agreed to pay $5 million to resolve claims against its branded opioids, excluding the claims involving its generic painkillers.

Meanwhile, on Monday, U.S. District Judge Dan Aaron Polster appointed Christopher Seeger of Seeger Weiss LLP and Jayne Conroy of Simmons Hanly Conroy LLC, to serve as interim, co-lead counsel for a proposed negotiation class.

Judge Dan Polster is presiding over all the opioid lawsuits consolidated under MDL No. 2804 (In Re: National Prescription Opiate Litigation) brought by U.S. cities and counties of which most of the cases are filed largely by local governments, Native American tribes, and hospitals.

Endo International and Allergan are the first two pharmaceutical companies to resolve claims in Cuyahoga and Summit counties. The suits filed by the state that opioid manufacturers marketed and flooded the market with painkillers despite being aware of its risk and high level of addictiveness. Defendants involved in this suit also comprise Purdue Pharma, Mallinckrodt, and Cardinal Health.
 
The vice president and chief legal officer of Endo International, Matthew Maletta stated in his statement that settling the claim with payment of $10M can be considered as a favorable outcome for their organization. Matthew further said that the company will henceforth not enter into any wrongdoing as per the agreement. 
 
Opioid addiction in Northeast Ohio became the cause of death for thousands of deaths. The death rate was due to the high use of heroin, fentanyl, and other painkillers. The lawsuits also state that the huge amount of pills dumped in the market increase the addiction to these painkillers, as people chose cheaper heroin on the streets over prescription painkillers. 
 
A case for the opioid crisis that began in 2014 was the first in history where local government entities sued Big Pharma for causing painkiller addiction. The case brought by Oklahoma in 2019 was the first to go for trial where Johnson & Johnson was ordered to pay $572 million in an opioid lawsuit. Later, the verdict was reduced to $465 million, for which the appeal is still pending.
 
Federal health officials warned that opioids account for nearly 70% of all drug overdoses. 3,100 deaths were accounted for due to opioid overdoses in 2013 and the number has surpassed 36,000 by 2019.

Cleveland County District Judge Thad Balkman in Norman, Oklahoma, will be ruling a judgment on Monday deciding whether Johnson & Johnson (J&J) should be held liable for the Oklahoma opioid epidemic.

The judge will give the decision after presiding over the first trial of the thousands of lawsuits brought by the state’s attorney general, arguing that the drugmaker should be forced to pay $17 billion for fueling the opioid epidemic.

The case is being closely watched by plaintiffs in other opioid lawsuits, especially the cases pending in Ohio. Purdue Pharma LP and Teva Pharmaceutical Industries Ltd, who also were defendants in the case, made a settlement of $270 million in March and $85 million in May respectively, denying any wrongdoing.

Allegations include that the drug manufacturers were involved in deceptive marketing for years without highlighting the addiction risks associated with opioids, and recklessly selling the powerful pain medications.

According to the U.S. Centers for Disease Control and Prevention, 400,000 opioid overdose deaths were reported from 1999 to 2017. Around 6,000 Oklahomans have died from opioid overdoses since 2000, as per the state's lawyers. 

Federal health officials warned that opioids account for nearly 70% of all drug overdoses. In the year 2013, 3100 died due to opioid overdoses and the number is expected to increase more than 36,000 by end of 2019.

A case for the opioid crisis that began in 2014 was the first in history where local government entities sued Big Pharma for causing painkiller addiction. The case induced for the Oklahoma opioid epidemic this year is the first to go for trial. 

Opioid lawsuits are consolidated under MDL No. 2804 (In Re: National Prescription Opiate Litigation) presided by Judge Dan Polster.

On 9 August, the Federal Court issued an agenda, involving the 3M Company’s Combat Arms Earplugs, for the upcoming  “Science Day” event. The Science Day convenes on August 26th, at which both parties are allowed to educate the court on the scientific and legal issues central to their case. Each side will have approximately 15 minutes, for each aspect, and may present up to three speakers to address scientific aspects of the litigation, including:

• Sound properties and measurement.

• How sound is perceived by the human ear.

• The science of hearing loss.

• Hearing examination protocols,  including methods for causal attribution of hearing loss.

• Hearing protection devices generally and their evolution.

• Considerations regarding selection of hearing protection devices.

• Standards and procedures for testing hearing protection devices.

• Any unique testing protocols that were required for the 3M Combat Arms Earplugs.

The complaint against 3M originates from the Army’s 1999 request to the manufacturer for shortening the earplugs so they could fit in a standard-issue military carrying case. Over 800 lawsuits are pending in U.S. courts against 3M as of June 5, 2019. Plaintiffs involved in this case claim that from 2003 to 2015, 3M provided defective CAEv2 earplugs. Lawsuits filed have common allegations that the manufacturer provided faulty earplugs to the U.S. military, which caused hearing loss and tinnitus to American soldiers both in the U.S. and abroad.

As per the plaintiffs, the company was aware of the device's inefficiency in protecting the military personnel from tinnitus and hearing loss resulting from the battlefield. The U.S. Judicial Panel on Multidistrict Litigation (JPML) has decided to centralize claims for pretrial proceedings in the Northern District of Florida.

U.S. District Judge M. Casey Rodgers is presiding over all injury lawsuits filed under MDL No. 2885 (In Re: 3M Combat Arms Earplug Litigation) in the Northern District of Florida against Minnesota-based 3M.

U.S. District Judge Edmund A. Sargus, presiding over the Bard Hernia mesh multidistrict litigation, issued a case management order on August 19, setting the new trial dates for May 8, July 13, and September 14 of 2020. This retracts the prior order issued last week, with trial dates as July 13, September 14, and November 9 of 2020.

Each of the lawsuits raises similar allegations that problems with polypropylene mesh used in Bard hernia repair products were defective and dangerous, creating a risk of painful and debilitating complications where the mesh may fail and require individuals to undergo additional surgery to remove the patch from their body.

There was an increase in the sale of hernia mesh after the Food & Drug Administration (FDA) approved it in the year 2010. The mesh used for repairing hernia was promoted as a physiologically well-designed device, offering strong and comfortable healing and giving an exceptional intraoperative handling benefit.

In the United States, hernia mesh is used in 9 out of 10 hernia surgeries annually. The U.S. FDA had earlier approved this device, stating that the device can help patients to recover in less time after surgery compared to other treatment options. However, years later this mesh had to be recalled after many complications were reported. Patients after undergoing the surgery using hernia mesh complained of bowel obstruction, adhesion, infection, chronic pain and hernia recurrence.

Currently, C.R Bard faces more than 4,000 lawsuits throughout the federal court system, each involving similar allegations associated with Bard Prefix, Bard Composix, Bard Ventralex, and other polypropylene products sold in recent years.

All federal Bard hernia mesh claims are consolidated under federal multidistrict litigation (MDL No. 2846; In Re:  Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Products Liability Litigation) in the Southern District of Ohio.