What Happened In The MassTorts World Last Week? 2019-Jan-21

According to an order issued on January 7, 2019, Judge Alice Gibney of the Rhode Island Superior Court found that the claims filed by a plaintiff in a hernia repair patch case were timely as the device manufacturers fraudulently promoted the Ventralex hernia patch as safe to use.

The plaintiff was implanted with C.R. Bard's Ventralex hernia patch during a ventral hernia repair on May 12, 2008. She underwent a second surgery on October 4, 2011, to remove a portion of the patch, and in 2015 she learned a third surgery was required to remove another portion of the Ventralex patch. She filed a suit against Davol Inc. and C.R. Bard Inc. in July 2017, alleging that she was severely injured due to the defective nature of the patch. Defendants argued that the claims were time-barred and must be dismissed. In an amended complaint, the plaintiff stated that prior to the end of 2016, she was unaware of Bard and Davol's wrongful conduct linked to the design flaws in the mesh. The complaint stated that the claims were sufficient under Rhode Island's discovery rule as well as the time of accrual for the concealed cause of action. The Rhode Island Superior Court found the claims asserted in the lawsuit were sufficient to toll the limitations period.

Bard and Davol control more than 70% of the mesh implant market in the United States. Judge Edmund A. Sargus overlooks the 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.

In an order issued on January 7, a Louisiana federal Court Judge denied summary judgment requests filed by two asbestos defendants and concluded that the plaintiff involved would furnish admissible expert testimony linking the defendants' products to his alleged mesothelioma. The order concluded that "whether to credit this testimony is a question of fact for the jury.”

In the lawsuit filed in the state court against the defendants, the plaintiff asserted that he was exposed to asbestos while working as a mechanic and generator service technician, which caused him peritoneal mesothelioma. The defendants moved the action to the Eastern District of Louisiana, and a joint motion for summary judgment was filed by defendants, Ford and Cummins Inc., in which they argued that the plaintiff was unable to prove that their products were the reason for mesothelioma. Defendants requested summary judgment and urged the court to exclude the plaintiff's experts. However, the court found the causation opinions admissible and allowed expert testimonials to be included to testify that the asbestos exposure from defendants' products can cause peritoneal mesothelioma and that the plaintiff's cancer was caused by his exposure to those products.

Asbestos exposure has been the major reason for a growing number of mesothelioma lawsuits across the U.S. Another product involved in asbestos exposure is talcum powder, which has been blamed for causing ovarian cancer and mesothelioma in several individuals.

A French Court canceled Bayer's license for Monsanto's controversial weed-killer Roundup Pro 360 following a court ruling that the regulators neglected the safety concerns while clearing the extensively used herbicide in 2017.

The Lyon court found that the environmental agency ANSES failed to consider the link between glyphosate, an active ingredient in Roundup, and cancer by not conducting a specific evaluation of the herbicide's health risks. French President Emmanuel Macron had declared to phase-out all glyphosate-containing herbicides within three years.

While in Canada, farmers continue to use Roundup after Health Canada concluded that glyphosate does not pose any cancer risk to humans. The federal agency tossed eight objection notices and assertions made in the 2017 Monsanto Papers. The Roundup cancer controversy has affected more than 10,000 individuals who were diagnosed with non-Hodgkin's lymphoma (NHL). One of the plaintiffs was awarded $289 million, later reduced to $78 million in punitive damages in August 2018.

The lawsuit filed by plaintiff Edwin Hardeman will go to trial on February 25, 2019, before Judge Vince Chhabria in the U.S. District Court, Northern District of California where multidistrict litigation (MDL No. 2741; In re: Roundup Products Liability Litigation) has been formed.

On January 9, 2019, the federal Court overseeing the coordinated pretrial proceedings for hundreds of Onglyza lawsuits issued the second Case Management Order, which regulates the production of Plaintiff Profile Forms.

According to the order, the plaintiffs whose cases are currently pending in the MDL are required to submit a complete and verified Plaintiff Profile Form to the defendants by March 1, 2019. Those claimants whose cases were added to the multidistrict litigation after January 15, must submit the form within 75 days from the case inclusion date. The order stated each claimant must furnish records related to Onglyza use, such as pharmacy records confirming that a prescription was refilled by a retail or hospital pharmacy, records showing that samples were recommended by a physician, current medication records involving Onglyza, an affidavit from a healthcare provider attesting that he or she prescribed Onglyza to the plaintiff, and pill bottle(s) used by the plaintiff or decedent. Also, plaintiffs are supposed to submit medical records showing the history of heart failure conditions occurred after taking the Type 2 diabetes medication. The order also stated the parties must submit the Plaintiff Fact Sheet (PFS), Defendant Fact Sheet (DFS), and a proposed Case Management order while the court evaluates Daubert motions about expert witness testimony.  

Onglyza heart-failure lawsuits were centralized last February as part of multidistrict litigation (MDL No. 2809; In Re: Onglyza (Saxagliptin) and Kombiglyze XR (Saxagliptin and Metformin) Products Liability Litigation) in the Eastern District of Kentucky and assigned to Judge Karen K. Caldwell.

On January 14, 2019, a woman and her husband filed a product liability lawsuit against Johnson & Johnson and its Ethicon subsidiary in the U.S. District Court for the Western District of Louisiana as the woman suffered painful and debilitating complications after a hernia repair surgery.

In the lawsuit, the couple claimed the hernia mesh manufactured by the company was defectively designed and was unreasonably dangerous. The woman was implanted with Ethicon Proceed Surgical Mesh on January 12, 2018, and just a day later she underwent another surgery to remove the mesh due to severe pain, infection, and bowel perforation. The plaintiffs claimed that the mesh manufacturers failed to provide adequate warnings to them and the doctors about the potential risks of the mesh and failed to conduct any clinical trials or studies to ensure its safety and effectiveness before extensively marketing the device. According to the lawsuit, the layered design of the polypropylene mesh led to bacterial contamination followed by seroma formation.

The Louisiana woman's lawsuit joins an increasing number of Ethicon hernia mesh lawsuits pending in several courts nationwide. The first bellwether trial in the Ethicon Physiomesh Multi-District Litigation (MDL No. 2782; In Re: Ethicon Physiomesh Flexible composite Hernia Mesh Products Liability Litigation) is slated to begin on December 2, 2019. More than 1,500 Physiomesh lawsuits are overlooked by U.S. District Judge Richard Story in the Northern District of Georgia, which are consolidated for pretrial proceedings.

A Missoula City Council committee agreed to join the opioid lawsuit filed by other governments in Montana, including Great Falls and Lake County, against the manufacturers and distributors of prescription opioids.

Mayor John Engen said, "what this retention agreement allows us to do is to pursue some of those damages and receive direct benefit from the suit rather than joining the Montana attorney general, for example, and being in a position of sharing that pot of money in a way that’s largely out of our control.” According to a report from the U.S. Centers for Disease Control and Prevention, the opioid litigation costs about  $55.7 billion annually. About 45% is assigned to health-care costs, 9% is allocated to criminal justice costs, and 46% goes to workplace costs, such as productivity loss. The multidistrict litigation (MDL) would be transferred to a federal court in Ohio where it would be handled by a law firm there, Simon Greenstone Panatier.

More than 1,600 opioid lawsuits filed by opioid affected individuals are consolidated into a multidistrict litigation MDL No. 2804 (In Re: National Prescription Opiate Litigation) overlooked by Judge Polster in the Northern District of Ohio. The first bellwether trial in the litigation has been set for September 2019, involving lawsuits filed by Cleveland and the Ohio counties of Cuyahoga and Summit.

The Missouri Supreme Court passed an order on Monday, January 14, which temporarily paused an upcoming talcum powder trial involving claims filed by 13 women or their spouses, who alleged that Johnson & Johnson's asbestos-contaminated talc caused their ovarian cancer.

The order sustained a petition for a permanent writ of prohibition filed by J&J to stop the trial, which was slated to begin in St. Louis on Tuesday, January 15, and the jury selection for the same was about to begin this week. This was the second ovarian cancer case against J&J comprising of multiple plaintiffs. An earlier multi-plaintiff talc case concluded with a jury award of $4.7 billion granted to 22 women suffering from ovarian cancer. Attorney Beth Bauer wrote in the petition that consolidating too many plaintiffs into a single trial might confuse and mislead the jury in reaching towards an appropriate decision resulting in massive verdict amounts.

More than 1,000 lawsuits are pending against the talc manufacturer, which 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 multidistrict litigation (MDL No. 2738; In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation).

On January 15, U.S. District Judge David Campbell of the District of Arizona, overseeing thousands of lawsuits involving C.R. Bard's IVC filter, denied the company's request to seal certain evidence documents.

The document in question was admitted into evidence in the last IVC filter trial but only partially disclosed. The judge ruled that the admission of the evidence suspended an earlier protective order even if not actually presented in the court. Bard faces more than 5,700 IVC filter lawsuits over complications such as filter migration, fracture or embolization related to blood clot filters, such as the Recovery, G2, Eclipse models, and many others.

Similar cases are consolidated as a part of multidistrict litigation (MDL No. 2641; In Re: Bard IVC Filters Products Liability Litigation) for coordinated pretrial proceedings, overlooked by Judge David G. Campbell, in the United States District Court District of Arizona.

According to the January 16 ruling of a federal judge, Pennsylvania courts can now have jurisdiction over talcum powder lawsuits since the defendant followed state law while registering to do business in the state.

In the opinion submitted, Judge Michael M. Baylson denied Imerys Talc America's motion to dismiss a plaintiff's case on jurisdiction grounds. The parties involved in the litigation argued about Pennsylvania’s law for companies registered to do business in the state, which is in contradiction with a recent U.S. Supreme Court's decision governing legal jurisdiction for companies having headquarters in other states. Imerys is a Delaware-based company having its headquarters in Roswell, Georgia, and San Jose, California and argued that the business registration for Pennsylvania was its only contact and did not create jurisdiction. The plaintiff stated in her lawsuit that she was diagnosed with papillary mesothelioma on November 13, 2015, and it was only in May 2018 that she learned that her exposure to talcum powder contaminated with asbestos was the reason for her condition. Charges of strict liability, negligence, breach of warranty, and misrepresentation were filed against the defendants; additionally, a loss of consortium claim was asserted by her husband.

More than 1,000 lawsuits are pending against Johnson & Johnson and its talc supplier, which 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).

In a motion filed on January 16, 2019, Bristol-Myers Squibb Co and Otsuka Pharmaceutical Company requested the judge overseeing the multidistrict litigation for the antipsychotic drug Abilify to toss gambling lawsuits filed by 550 plaintiffs unless they furnish more information linked to their Abilify use and past medical records.

The companies asserted that the plaintiffs violated a court order that required them to submit additional information latest by November 2018. There were more than 2,170 Abilify lawsuits pending in a federal court in north Florida as of December 2018. All the lawsuits filed alleged that drug makers marketed the antipsychotic masking the risks of compulsive gambling and unusual behavior traits from the consumers. The multidistrict litigation MDL No. 2734 (In Re: Abilify Compulsive Behavior Products Liability Litigation) was formed in October 2016 in the Northern District of Florida overlooked by Judge M. Casey Rodgers for coordinated discovery and pre-trial proceedings.