What Happened In The MassTorts World Last Week? 2020-Jan-27

On Friday, Philadelphia Court of Common Pleas Judge Kenneth Powell drastically cut the $8 billion jury award passed October last to $ 6.8 million in punitive damages over Janssen Pharmaceuticals’ antipsychotic drug Risperdal, which caused a Maryland man to develop enlarged breasts.

The plaintiff was awarded $1.75 million as compensatory damages in 2015, which was later reduced to $685,000, against Janssen Pharmaceuticals, a Johnson & Johnson subsidiary.

Judge Powell denied Janssen’s post-trial motions in all other respects but brought the punitive damages award to 10 times the compensatory award of $680,000. In this two-sentence judgment, Judge Powell did not outline his reasoning for slashing the $8 billion jury award.

Thousands of lawsuits are filed against J&J, claiming that the powerful antipsychotic drug causes gynecomastia in boys, an undesired growth of breast tissue. Two coordinated actions are 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).

C.R. Bard and its Davol, Inc. subsidiary have proposed that from over a thousand lawsuits faced by them, claims related to Bard Ventralight ST and Bard Ventralex mesh be the first to go before a jury later this year.

The company faces more than 3,500 lawsuits with similar allegations from plaintiffs due to various hernia polypropylene mesh device, namely Ventralex, Ventralight, PerFix, 3DMax, and other devices. The outcomes of these trials will not be forced on other pending lawsuits. U.S. District Judge Edmund A. Sargus in the Southern District of Ohio will look into the proceedings of the trials which are scheduled to begin on May 11, 2020; July 13, 2020; and September 14, 2020.

Bard has proposed to start the trials with Ventralight ST and Ventralex, as the lawsuits involving these devices are more as compared to other devices, which will ease the process of determining the potential settlement.

The federal court has scheduled to begin the first "bellwether" trial from the thousand lawsuits of Nexium and other proton pump inhibitors (PPI) on November 15, 2021.

The makers of Nexium, Prilosec, Prevacid, Protonix, and other PPI drugs currently have 13,000 claims pending against them with similar allegations that their products increase the risk of chronic kidney disease, acute kidney injury, kidney failure, and other side effects.

The U.S. District Judge Claire C. Cecchi issued a case management order on January 10, which states that the first 6 bellwether cases will have a generic discovery deadline of September 15, 2020, and the first trial will begin in November 2021.

According to an independent study published in the medical journal JAMA Internal Medicine, the risk of chronic kidney disease is more for the users of Nexium, Prilosec, and other PP1 as compared to non-users. Side effects of PPI include heart attacks, dementia, bone fractures, vitamin B deficiency, low magnesium levels, and gastric cancer.

More than 300 military veterans have filed lawsuits against 3M for deliberately manufacturing defective earplugs, which resulted in hearing loss during combat in Iraq and Afghanistan and also during training in the U.S. military bases.

Currently, the manufacturer faces over 1,000 lawsuits from 2,000 military veterans over the earplugs alleging that the earplug slips out of the ear, and is inefficient in its purpose, which leads to difficulties for the military personnel. Maplewood-based 3M has been facing new lawsuits daily and is also fighting lawsuits related to class of chemicals known as PFAS.

On the other hand, 3M has denied all the allegations stating that 3M and the Aearo Technologies, along with the U.S. military, designed the dual-ended, Combat Arms earplugs, according to the required parameters.

The lawsuits, brought by military veterans who are left with hearing loss or tinnitus due to defective earplug distributed by the U.S. armed forces to all service members between 2003 and 2015, are consolidated under MDL No. 2885 (In Re: 3M Combat Arms Earplug Litigation) in the Northern District of Florida.

The U.S. District Judge Michael Baylson of the Eastern District of Pennsylvania allowed strict liability claims to proceed against Coloplast Corp. in a pelvic mesh case.

The lawsuit was filed by a woman and her husband, against the pelvic mesh manufacturer, in 2018 over its allegedly defective device. The plaintiffs raised eight claims, including three based on strict liability.

According to a motion filed, Coloplast attempted to extend protections provided to the makers of prescription medical devices under comment K to Section 402 of the Restatement (Second) of Torts, citing the 2006 Pennsylvania Supreme Court decision in Creazzo v. Medtronic. But in Jan. 17 order, the judge denied the company’s motion to dismiss for failure to state a claim on the strict liability issues. The judge also noted that the U.S. Food and Drug Administration initially approved the device, but ordered the company to stop selling it in April 2019.

The Pennsylvania Supreme Court advised the judges to not make categorical decisions about products concerning liability, without a strong record on the policy issues that should inform a common-law analysis of whether to allow these claims.

The state of New Mexico filed a lawsuit against Johnson & Johnson(J&J) and Valeant Pharmaceuticals, alleging that their talc-based products were laced with asbestos while explicitly marketing to African-American and Hispanic New Mexican women and children.

The complaint was filed on January 2 in state court in Santa Fe by Attorney General Hector Balderas. Although J&J is facing thousands of lawsuits over its talc products, New Mexico is the first state seeking punitive damages through legal action.

The state alleges that J&J targeted the African-American and Hispanic women and children for robust marketing as people of these two ethnicities have a higher rate of people using its baby powder.

The brief also states that a study in 1995 found a 27 percent increase in ovarian cancer for women who used talc on a regular basis in abdominal or vaginal areas.

Nearly 14,000 Talcum Powder and Shower-to-Shower lawsuits are consolidated under multidistrict litigation MDL No. 2738; In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation. Lawsuits are also pending in a coordinated California proceeding under Judicial Council Coordinated Proceeding No. 4877.

Investors sued McKesson Corp.'s board, claiming that the directors failed to maintain adequate internal systems for detecting suspicious opioids cargoes. They also reached a settlement of $175 million for the same.

According to the accord, McKesson executives agreed to restructure the company's rules and regulations by separating the role of the chief executive officer and board chairman and improvising policies regarding bonuses for officials who don’t perform properly. The accord is the result of McKesson failing to stop illegal shipments of painkillers to pharmacies.

McKesson settlement is a part of a $50 billion settlement of governmental lawsuits. Opponents doubt that $18 billion offer from McKesson, Cardinal Health Inc., and AmerisourceBergen Corp. is not enough. Johnson & Johnson has offered $4 billion along with Teva Pharmaceutical Ltd., proposing $23 billion in treatment medications and $250 million to the deal.

Over the past decade, McKesson has twice settled with the regulators who claimed that the company does not have proper systems to detect illegitimate shipments of opioids.

Bayer is looking forward to a dialogue with the lawyers of plaintiffs who filed lawsuits over its Roundup weedkiller for settling the tens of thousands of claims, which could cost $10 billion.

Lawyers for Bayer have said the company will keep aside $8 billion to settle current cases and keep $2 billion for future settlements. They even informed that the figure of $10 billion could change.

Ken Feinberg is the lead mediator for the cases and has indicated that the Roundup claims may settle within a month. Feinberg even stated that he is not aware of the amount of the settlement as the talks are confidential between the lawyers of the plaintiffs and the company's lawyers.

Roundup claims have increased since a verdict of almost $2.5 billion is awarded to the plaintiffs, which has built immense pressure on Bayer for the settlements. Many trials that were about to start this month got postponed as Bayer could get enough time for negotiations.

Bayer AG has agreed to the court's decision to postpone a high profile trial over its controversial weedkiller Roundup in Missouri as thousands of lawsuits are pending for settlement.

Ken Feinberg is the mediator of Bayer for making the settlements of over thousands of lawsuits over Roundup weedkiller. About 42,700 lawsuits are alleging that Roundup caused non-Hodgkin lymphoma. Judges have even postponed other lawsuits, whereas Bayer is discussing a $10 billion settlement for the remaining Roundup lawsuits.

On Friday morning, the fourth trial over Roundup litigation was to begin in St Louis, but it did not happen as lawyers of the company and plaintiffs decided to settle the issue out of the court.

It would have been the first trial of multi-plaintiff whether glyphosate, Roundup's active ingredient, is carcinogenic, and the first trial outside of California. The weed killer has been previously found responsible for causing cancer on three occasions by the jury.

On Thursday, Louisiana Federal Judge Jane Triche Milazzo rejected reconsidering lawsuits filed by two Taxotere patients who alleged drugmaker Sanofi-Aventis for failing to inform about permanent hair loss.

The judge passed the judgment after finding that their cases were filed too late under Louisiana law. The plaintiffs had made use of the class action's master complaint. According to the permanent chemotherapy-induced alopecia (PCIA) parameter, hair loss is diagnosable six months after chemo ends. Last July, the judge ruled that at the six-month mark, a second yearlong clock for filing suits begins.

The judge considering the timeline's evidence reached the ruling, as the Louisiana law on statutes of limitations, called prescription law, allows a one-year “prescriptive period” in product liability disputes.

Multiple drug companies, along with Sanofi, are facing 10,000 cases in the multidistrict litigation. The lawsuits are consolidated under MDL No. 2740 before U.S. District Judge Jane Triche Milazzo.

Earlier this week, the parties involved in JUUL lawsuits pending in the federal court system issued a Joint Notice regarding the 12 randomly selected cases to be included in the bellwether trial discovery pool.

The case selection would follow a case-specific discovery process and face future challenges to the admissibility of expert witness testimony before the first bellwether trial.

In September, U.S. District Judge William H. Orrick III, overseeing the federal JUUL multidistrict litigation (MDL), had released a case management order establishing the method for the parties to choose the cases that will be prepared for early bellwether trials. The first five bellwether trials are expected to begin in 2022 on February 22, March 28, May 9, and August 1.

These bellwether claims will help the parties gauge how juries are likely to respond to certain evidence and testimony, which will be repeated throughout the litigation. The outcomes of these trial will not bind on other claims pending in the federal docket, instead will influence JUUL settlements to avoid the need for series of an individual trial.

Pediatrics, in its current issue for December, indicated that teens who used e-cigarettes with no intention of smoking cigarettes in the future were four times more likely to find themselves smoking cigarettes a year later as compared to the ones who did not use e-cigarettes. This indicates that the epidemic might grow and lead to a torrent of lawsuits concerning the popularity of vaping among teens and young adults.

Currently, more than 1,100 lawsuits and class action claims are filed against JUUL Labs Inc., each claiming that the manufacturer created false and misleading advertisements for JUUL, tormenting the U.S. with nicotine addiction problems in recent years.