What Happened In The MassTorts World Last Week? 2019-Feb-18

U.S. District Judge Vince Chhabria of the Northern District of California, presiding over all Roundup lawsuits, issued a pretrial order on Wednesday, February 6, indicating that Monsanto must take the deposition of a man dying of non-Hodgkin’s lymphoma (NHL) within 28 days of the order. The federal judge also granted the man's request for an early trial considering his deteriorating health condition.

According to the lawsuit filed by the plaintiff in 2015, he was diagnosed with non-Hodgkin's lymphoma as a result of exposure to Roundup herbicide. In October 2018, his oncologist revealed that his cancer was spreading rapidly and he had less than six months to live. In November 2018, the plaintiff requested that his case must be given preference over other bellwether trials scheduled to begin that month, or remand it back to the Southern District of California, as he may not live enough to witness the outcome of the first bellwether trial. Judge Chhabria stated in the order that man's claim would be included in the second group of bellwether trials, and the pretrial schedule for those claims would be finalized after the conclusion of the first bellwether.

Monsanto faces a steady flow of Roundup lawsuits alleging that the herbicide's glyphosate ingredient causes cancer to humans. A California couple, both suffering from NHL, was granted an expedited trial, which is set to begin in March 2019. Additional trials are scheduled against Monsanto in Missouri also, including a multi-plaintiff trial involving claims filed by 15 individuals, which will go before the jury in October this year. More than 600 Roundup lawsuits are pending in the federal court system where Judge Vince Chhabria overlooks the consolidated lawsuits in the multidistrict litigation (MDL No. 2741; In re: Roundup Products Liability Litigation).

A Philadelphia Judge dismissed claims filed against Colgate-Palmolive Co. that the company's Cashmere Bouquet talcum powder was the reason for a woman's mesothelioma, just one day before the trial was expected to begin.

The case would have been the first asbestos-in-talc case to go before a jury in the Philadelphia County Court of Common Pleas. Judge Kenneth Powell granted a summary judgment motion to Colgate-Palmolive Company after disqualifying the plaintiff's expert who was supposed to testify that Cashmere Bouquet-brand cosmetic talcum powder caused mesothelioma to the plaintiff. The other defendant in the case was Imerys Talc America Inc., who agreed to a settlement on Wednesday. The woman started using Cashmere Bouquet talcum powder in the mid-'50s until around 1970. She was diagnosed with mesothelioma in November 2015, and her husband filed a suit against Colgate Co. in the following month in Philadelphia County. In November 2017, Colgate filed a motion for summary judgment asserting that the plaintiff did not have enough evidence after a trial judge ruled that a pair of expert witnesses used unsound methods to determine the asbestos presence in Colgate’s talcum powder. The woman breathed her last in February 2018, leaving behind her husband, who is fighting the litigation on her behalf.

Juries handling Talcum powder litigation have so far awarded multi-million amounts over allegations that industrial or cosmetic talc contaminated with asbestos causes mesothelioma. Other defendants in the talcum litigation are Johnson & Johnson, Whittaker, Clark & Daniels, and Vanderbilt Minerals.

In an order issued on February 6, Arkansas federal Judge Timothy Brooks denied summary judgment request filed by Smith &  Nephew in a lawsuit involving its Synergy Stem artificial hip, finding questions of fact whether the hip system had a manufacturing and/ or compositional defect at the time it was implanted.

Judge Timothy Brooks refused to exclude the testimony provided by the plaintiff's expert witnesses and stated that the expert witnesses were qualified enough to have an opinion on metallurgy and damages. The plaintiff, John Myatt, underwent a hip replacement surgery in 2004, following a fatal car accident, and he was implanted with Smith & Nephew's Synergy Stem.

Smith & Nephew manufactures several hip replacement systems meant to increase mobility and improve durability. However, the company's metal-on-metal implants were linked to serious complications like metallosis. The company faces more than 500 hip implant lawsuits which are consolidated into federal litigation. Similar lawsuits are filed against other hip device manufacturers in the U.S. involving defendants Zimmer, Stryker, Biomet, Wright, and DePuy Synthes.

In a case management order issued on February 8,  U.S. District Judge David G. Campbell agreed to consider a proposal submitted by C.R. Bard, requesting the court to establish a separate track for IVC filter cases in the MDL which are likely to get settled, including those cases which are in principle or near settlement stage, rather than remanding all of them. Judge Campbell stated the court will decide on the proposal and asked the parties to submit a joint proposal earliest by March 1.

According to the order, “any such proposal would need to specify the basis on which a case would be identified to be placed on a settlement track rather than being remanded to the transferor court, establish a schedule under which cases on the settlement track would either reach a completed settlement or be remanded, and a schedule for when the settlement track would be initiated and how long it would remain in place.”  Once the proposals are received, the court will decide whether a separate track for certain Bard IVC filter cases nearing settlement will be appropriate, or whether the MDL cases must be remanded to District Courts nationwide, if the litigation remains unresolved after the last bellwether trial. After receiving mixed outcomes of a series of early trials, Judge Campbell remanded some mature cases back to different U.S. District Courts for separate trials. The judge suggested if settlements are not reached by the parties soon, this will be continued.

There are more than 5,700 lawsuits pending against C.R. Bard, raising allegations that the plaintiffs suffered serious complications due to the IVC filter's defective design. Similar lawsuits have been centralized as multidistrict litigation(MDL No. 2641; In Re: Bard IVC Filters Products Liability Litigation) in the District of Arizona since August 2015 before Judge David G. Campbell.

The U.S. District Court for the Southern District of Indiana declined to award punitive damages to a plaintiff who was granted $3 million in compensatory damages in the third Cook IVC Filter bellwether case.

The trial, overlooked by  Judge Richard Young, began on January 14 and involved claims that the IVC filter was defectively designed and prone to cause severe internal complications. At the end of the punitive damages trial, the jury responded with a "no" to the question of whether the plaintiff had proved clear and convincing evidence that there was reckless indifference on the part of the defendant. The plaintiff claimed failure-to-warn in her complaint, but Judge Young dismissed them on summary judgment.

Cook IVC filter lawsuits are centralized since October 2014 under MDL No. 2570 (In Re: Cook Medical, Inc., IVC Filters Marketing, Sales Practices, and Products Liability Litigation), in the Southern District of Indiana.

On Wednesday, February 13, a federal judge indicated that he might toss a Roundup lawsuit involving claims filed by a plaintiff claiming that Monsanto's Roundup herbicide was the reason for his non-Hodgkin lymphoma. However, the man's lawyer got a second chance to get the case to trial in May this year.

The judge heard arguments on Monsanto's summary judgment motion, which stated the plaintiff's claims fall outside the two-year statute of limitations, hence are time-barred. The plaintiff's argued that the plaintiff was unaware that Roundup was the cause of his cancer until the International Agency for Research on Cancer released a report in 2015, about glyphosate's carcinogenic nature. The plaintiff sued Monsanto 12 days after the statute of limitations expired on his claims in September 2016 and Judge Chhabria told him, the claims can proceed only after a successful argument for tolling the statute of limitations. During a daylong pretrial hearing, Judge Chhabria criticized the opinion offered by plaintiffs' expert witnesses for an upcoming bellwether trial calling the opinions as "low quality" and told the witnesses' evidence was too weak to be testified. The federal judge questioned the credibility of the plaintiffs' specific causation experts since their testimony relates to another plaintiff who was diagnosed with non-Hodgkin's lymphoma in 2015. The judge, however, stated it is yet not decided that their opinions fall "so far outside the range of acceptable possible opinions" that it must be excluded based on Ninth Circuit precedent. Judge Chhabria said, "when you |LS|consider|RS| Ninth Circuit law, you come away with a pretty strong feeling that the Ninth Circuit is more tolerant of shaky expert opinions than other circuits. The Ninth Circuit ties trial judges' hands more tightly than |LS|others|RS|."

More than 600 Roundup lawsuits are pending in the federal court system where Judge Vince Chhabria overlooks the consolidated lawsuits in the multidistrict litigation (MDL No. 2741; In Re: Roundup Products Liability Litigation).

The New Jersey Supreme Court announced plans to establish a new consolidation program for all hernia mesh lawsuits filed in the state to include all lawsuits involving Ethicon Proceed and Prolene products and will be deciding whether the cases must be centralized before one judge for coordinated pretrial proceedings.

In a notice issued in December 2018, Glenn A. Grant, the Acting Administrative Director of the Courts, indicated that the court received a request for the formation of a Multicounty Litigation (MCL) for all Ethicon Proceed surgical mesh, Proceed Ventral and Prolene Hernia Mesh System lawsuits file in New Jersey. The request sought to centralize and consolidate the hernia mesh cases before one New Jersey judge to avoid duplicate discovery, conflicts in pretrial rulings, and for the convenience of common witnesses and parties. The plaintiffs proposed that the cases be tried out of either Atlantic, Middlesex or Bergen counties, Middlesex being their preferred venue.

Currently, there are more than 2,000 hernia mesh lawsuits pending before Judge Richard Story in the federal multidistrict litigation ( MDL No. 2782; In Re: Ethicon Physiomesh Flexible Composite Hernia Mesh Products Liability Litigation) in the U.S. District Court for the Northern District of Georgia.

On Wednesday, February 13, Missouri Supreme Court granted Johnson & Johnson's request to move a talcum powder case out of St.Louis City Court into county court, ruling that the case cannot proceed to trial just because it was included with the claims of a St. Louis city resident.

The decision was given out for a case filed by a plaintiff whose wife died from ovarian cancer allegedly due to asbestos exposure from J&J's talcum powder. According to the Supreme Court's ruling, J&J was allowed to overturn St. Louis Circuit Court Judge Rex Burlison’s decision of the request to move the claims to the county court. In the 16-page opinion, Judge W. Brent Powell stated that the claims have been separated from St. Louis city resident's claims and belong to the venue where his wife probably used J&J's talcum powder, which is St. Louis County.

More than 1,000 lawsuits, pending against J&J, are centralized for pretrial proceedings 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. as a part of a multidistrict litigation (MDL No. 2738; In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation).

According to a lawsuit filed on February 13, in the federal court in Kansas City, Missouri, Monsanto company gave false assurance to consumers that Roundup weed killer targets an enzyme not found in humans and animals.

The lawsuit names three consumers as plaintiffs who are pursuing to seek monetary damages and class-action status for their claims. Plaintiffs' attorney indicated in an email that, “Monsanto has misled consumers about glyphosate’s risks for decades. Despite the company’s efforts to suppress and skew research on glyphosate, the science is in.” Roundup products distributor Scotts Miracle-Gro is also a defendant in the lawsuit. Similar arguments are filed in two other suits in Wisconsin and Washington, D.C., but they are not class actions.

Judge Vince Chhabria overlooks the Roundup multidistrict litigation (MDL No. 2741; In Re: Roundup Products Liability Litigation) in the U.S. District Court, of Northern District of  California. California resident’s lawsuit is the first federal trial slated to begin on February 25.

On Thursday, February 14, Alameda County Superior Court Judge Brad Seligman announced that Imerys Talc America Inc. was no longer a defendant in a trial involving claims filed on behalf of a dying woman suffering from cancer allegedly due to Johnson & Johnson's talcum powder. The jurors were instructed not to contemplate much on why the talc supplier was dropped from the trial.

Imerys Talc America Inc. and its affiliates, Imerys Talc Vermont and Imerys Talc Canada filed for Chapter 11 bankruptcy on Wednesday, February 13 in Delaware, amidst multi-million dollar lawsuits that allege that asbestos exposure from J&J's talcum powder cause ovarian cancer and mesothelioma. Imerys stated that it has been named as a defendant in more than 14,650 individual claims and is currently $100 million in debt resulting from fighting those cases. Until Thursday, Imerys was part of the trial involving a plaintiff's claims that J&J and multiple mining companies, owned by Imerys, were aware of the asbestos hazards for decades and yet failed to adequately warn the consumers. The trial is expected to go before the jury early in March.

Other defendants targeted in the talcum powder litigation are Colgate-Palmolive Co., Whittaker, Clark & Daniels, and Vanderbilt Minerals.

On Wednesday, an appeals court in South Carolina upheld a $14 million asbestos verdict in a wrongful death lawsuit filed by the family of a victim who died of mesothelioma due to asbestos exposure while working at a polyester plant.

The victim worked as a contractor in a Celanese plant where he did maintenance and repair work for nine years since the 1970s. His work involved frequent contact with asbestos gaskets, packing, and insulation materials. According to court documents, he was diagnosed with mesothelioma in 2013 and died from advanced mesothelioma a year later. The victim and his wife sued Hoechst Celanese Corp., now known as CNA Holdings, for negligent conduct, failure to warn about the hazards of asbestos exposure, and failure to take adequate safety steps against asbestos exposure in the plant. In 2015, a South Carolina jury awarded the victim $12 million in compensatory damages and $2 million in punitive damages. CNA Holdings sought to dismiss the lawsuit and requested for summary judgment, asserting that the victim was a statutory employee, hence his case falls under South Carolina Workers' Compensation Act. The circuit court denied the motion for summary judgment at the conclusion of the trial, as a jury found that the plant’s negligence was the reason for the man's cancer. CNA Holdings filed several motions for a new trial; however, the circuit court declined the company's argument that the jury's decision had outside influences. 

Asbestos fibers from talcum powder have been the reason for ovarian cancer and mesothelioma in several individuals who used talc-based products.