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

On Monday, Bayer was held liable for a former school groundskeeper's cancer, which was the first case to go to trial in the U.S. over the company's weedkiller Roundup, but the California appellate court reduced the total award from $78 million to $20.6 million.

The case was filed by a plaintiff who alleged that the company's glyphosate-based herbicide resulted in developing his non-Hodgkin’s lymphoma. In August 2018, a unanimous jury awarded $289 million to the plaintiff, including $250 million in punitive damages. Following multiple objections by the jurors, a state judge later slashed the verdict to $78 million.

Bayer appealed at the Court of Appeal, arguing that the entire verdict must be overturned as Johnson's claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act.

During cross-appeal, a unanimous three-judge Court of Appeal panel rejected Bayer's arguments stating, "None of these arguments are persuasive," and affirmed the jury's liability findings on claims of being negligent, failure to warn, and design defect.

However, the panel, after finding that the plaintiff's future non-economic damages award is not supported by his life expectancy, reduced the total compensatory damages award from $39.3 million to $10.25 million, along with corresponding punitive damages.

Last month, Bayer indicated that it would pay more than $10 billion, to settle about 75% of the lawsuits. Currently, Bayer is facing more than 125,000 Roundup lawsuits, and the company has acknowledged the filing of 52,500 lawsuits. The lawsuits are consolidated under MDL No. 2741 before U.S. District Judge Vince Chhabria in the U.S. District Court for the Northern District of California.

Earlier in the month, U.S District Judge Vince Chhabria was skeptical about the agreement that affirms a settlement of more than $10 billion to resolve thousands of claims alleging that the weedkiller Roundup causes cancer.

The concern is only with one part of the deal, which includes a plan for handling future claims brought by the users who develop non-Hodgkin’s lymphoma, a type of cancer, and regarding its approval, the judge in a filing said that he "is skeptical of the propriety and fairness of the proposed settlement, and is tentatively inclined to deny the motion.” He also asked questions about the formation of a scientific panel to determine whether the key ingredient, glyphosate, causes cancer and whether the agreement unfairly limits potential plaintiffs from suing.

The deal would include a payment of $8.8 billion to $9.6 billion to resolve 75% of the current lawsuits and a fund of $1.25 billion to address future claims against the manufacturer would be set as per the agreement.

Following the indication of skepticism, the group of plaintiffs who had initially filed a motion for preliminary approval of the class settlement meant to address future Roundup claims has withdrawn the motion.
Bayer, in response to the judge's filing, said that it would address the concerns raised at the preliminary approval hearing, scheduled for next week.

A group of more than 170 consumer watchdog associations, universities, and environmental organizations sent a letter to Alex Gorsky, the Chairman and Chief Executive Officer (CEO) of Johnson & Johnson (J&J), asking to remove all talc-based baby powder products from the global market.

The letter was sent this month by organizations from more than 51 countries, which included the Sierra Club, Greenpeace USA, U.S. PIRG, Emory University, and Black Women for Wellness.

The global recall request comes about two months after J&J decided to stop selling its talcum products in the U.S. and Canada, claiming a decline in consumer demand and misinformation about the safety of the products.

The letter states that J&J knew that its products could cause cancer, and instead of warning consumers about the potential risks, the company aggressively marketed the products to African American and Hispanic women. The groups want J&J to recall the products and safely dispose of the remaining inventory in the U.S and Canada.

More than 19,000 talcum powder and Shower-to-Shower lawsuits are filed against J&J in courts nationwide, each raising similar claims about the presence of asbestos and the risk of cancer. Most of the lawsuits are consolidated under multidistrict litigation, MDL No. 2738, whereas some are pending in state courts in Pennsylvania. Lawsuits are also pending in a California coordinated proceeding as a part of Judicial Council Coordinated Proceeding No. 4877.

On Tuesday, Judge Ronald E. Wilson of the First Judicial Circuit in West Virginia, who oversees the state’s asbestos docket, issued a notice announcing that the jury selection in the upcoming asbestos trial has been scheduled to begin on July 27 at the Highlands Event Center in Wheeling.

The Highlands Event Center is about 4,000 square feet and was chosen over the Ohio County Courthouse to maintain social distancing procedures required because of the Coronavirus pandemic. The circuit judge has also urged the parties to settle and avoid the upcoming consolidated asbestos trial, which can be “a dreadful experience.”

The trial, scheduled to begin on August 3, will include 38 mesothelioma and lung cancer cases that have more than 100 defendants each, and some have more than 140 defendants. Wilson, in his July 21 notice, also listed the procedure required to enter the building and conduct negotiations in person.

The notice states that not more than 20 people will be permitted in the room at one time and everyone will be required to wear a mask, have their temperature taken, asked about contacts with COVID-19 individuals, fill out a contact tracing information form, and comply with the six-foot social distancing requirement. The jury selection will be done by questioning 30 to 40 prospective jurors.

As of July 22, West Virginia has reported 5,206 Coronavirus cases and 101 deaths due to the virus. Referring to the health risks associated, some defendants have asked to delay the trial.

On Friday, Indivior PLC, a Chesterfield County-based drug company, agreed to pay $600 million after its subsidiary Indivior Solutions Inc., pleaded guilty in federal court in Abingdon over its opioid addiction treatment drug Suboxone.

According to the deal, the pharmaceutical company will pay the $600 million over seven years to federal and state authorities and has also agreed with the Federal Trade Commission (FTC) to not engage in similar conduct and established a corporate integrity agreement with the Department of Health and Human Services' inspector general.

In April, last year, a federal grand jury in western Virginia raised a criminal and civil liability lawsuit, investigated by the FTC, against Indivior claiming that it used fraudulent marketing practices to increase profits from Suboxone Film. The lawsuit was joined by the U.S. Department of Justice.

The court records indicate that the company pleaded guilty of making a false statement in 2012 and was charged with one count of health care fraud, four counts of mail fraud, and 22 counts of wire fraud, as well as other charges last year. The company has collectively paid more than $2 billion over the marketing of Suboxone, which includes a settlement of $1.4 billion reached last year with Indivior's former parent company Reckitt Benckiser Group PLC.

The current settlement comprises $289 million to end the criminal charges, including fines, forfeiture, and restitution; $300 million to end civil allegations from state and federal enforcers; and $10 million to settle charges claiming that the company violated the antitrust laws. The overall settlement is considered the largest-ever resolution in a case brought by the Department of Justice involving an opioid drug.

Earlier, Injured Workers Pharmacy (IWP), a national mail-order pharmacy based in Andover, Massachusetts, has agreed to pay $11 million over a lawsuit brought by the state alleging that the company illegally dispensed thousands of prescriptions for dangerous drugs, including opioids like fentanyl.

According to the federal Drug Enforcement Agency (DEA), the pharmacy marketed a large number of opioids in Massachusetts between 2006 and 2012, which included 34.2 million oxycodone and hydrocodone pills. Last year, Attorney General Maura Healey's office announced an investigation against the company, which sells the drugs to workers' compensation patients.

The investigation revealed that the pharmacy violated Massachusetts consumer protection laws as it did not have proper policies to determine if the prescriptions were valid, and practiced unlawful marketing methods like paying law firms for patient referrals.

Congresswoman Lori Trahan, D-Westford, appreciated Healey's work and stated that she introduced the Medication Access and Training Expansion Act, in the House, where the legislation has similar goals to the settlement agreement.

Opioids are on the market for ages and have been used basically for pain relief for post-surgical pain, cancer-related pain, chronic or persistent pain. Opioids when used in proper dosage and along with a combination of other pain treatments, work in relieving pain successfully, unless there is a misuse or abuse of the drug. 

Companies manufacturing opioids convinced the medical community that these medications were not addictive and were purely beneficial. This belief raised the number of prescriptions and sales unwarrantedly, resulting in a mass misuse of these drugs, to the extent that this was identified by the U.S. Food and Drug Administration (FDA) as a public issue and named it an 'opioid crisis.'