What Happened In The MassTorts World Last Week? 2020-May-11

The U.S. District Judge Casey Rodgers, presiding over all federal military 3M combat earplugs lawsuits, issued a case management order, last week, asking parties involved in the litigation to propose a joint remote deposition protocol by May 6.

According to the case management order, Judge Rodgers stated that "due to the ban on non-mission-essential domestic travel for all DOD military and civilian personnel through June 30, 2020, the parties will communicate with Major Evans to schedule and conduct remote depositions of two government witnesses in May 2020."

It further stated that "if the remote deposition technology proves effective and reliable during these depositions, then the remaining government depositions in this litigation will proceed remotely for as long as the DoD travel restrictions remain in place."

The remaining corporate depositions are to be scheduled in June, and whether it should be in-person or remote will depend on the status of the public health crisis and the effectiveness and reliability of the remote deposition technology used for the depositions of government witnesses in May 2020.

Upcoming Case Management Conferences are scheduled for the following dates:

May 29, 2020

June 26, 2020

July 29, 2020

August 28, 2020

September 18, 2020

October 23, 2020

November 20, 2020

December 14, 2020

The U.S. District Judge Casey Rodgers identified a group of 20 cases and five alternates to be a part of early 3M earplug bellwether trials, set to begin next year.

Judge Rodgers identified cases in a pretrial order issued on February 27 that will be a part of an initial pool from both filed and pending claims identified through a census program organized by the Court.

The judge even informed that the parties must respond to written discovery by May 15, and complete core discovery by July 31, as per a previous order. The court will then create four trial groups and assign five cases to each group, which will be eligible to go before juries. The other five cases will serve as alternates.
 
Currently, more than 100,000 claims are filed by veterans, each raising similar allegations that their hearing loss injuries were caused by defective 3M earplugs that were standard issue by the government between 2003 and 2015.

Manufacturers of HIV drug Truvada, Gilead Sciences, filed a lawsuit against the U.S. government, alleging that the U.S. Centers for Disease Control and Prevention (CDC) violated a contract, governing the collaboration on HIV drug, between the company and government agency.

According to the lawsuit filed, the manufacturer indicated that the U.S. government violated four Material Transfer Agreements (MTAs) and a Clinical Trial Agreement between the company and the CDC. Gilead initially received approval from the FDA for the use of drugs combined with other treatments. However, as per the lawsuit, in the early 2000s, researchers at CDC created new regimens, patented by the U.S. government, to prevent the spread of HIV.

Last year, in November 2019, the U.S. Department of Justice filed a lawsuit, claiming that the government spent hundreds of millions of dollars on clinical studies, and Gilead profited by selling the drugs at highly inflated prices.

The recent case is the latest rift between the federal government and Gilead, over who owns the patent for the HIV drug.

Along with the legal dispute with the Justice Department, Gilead is also facing an increasing number of complaints filed by plaintiffs nationwide, alleging side effects of tenofovir disoproxil fumarate (TDF) infused HIV drugs like Truvada, Stribild, and other medications.

On Monday, West Virginia state Attorney General Patrick Morrisey announced that the state reached a $3.9 million settlement with Johnson & Johnson (J&J) and its subsidiaries over the lawsuit involving its surgical mesh used to treat pelvic conditions in women.

A consumer protection case was filed against J&J in September, alleging that the company communicated misleading information about the risks and effectiveness of the mesh by using studies written by paid consultants.

The settlement will also solve the allegations against J&J that deceptive marketing practices were used over metal-on-metal hip replacement systems.

The pelvic mesh was approved, for surgical usage, by the FDA in 2002. Later, in April 2019, sales of the synthetic mesh were stopped after receiving many injury reports as well as tens of thousands of lawsuits from women claiming they had bleeding, severe pain, and infection from the products.

In January, J&J paid nearly $344 million in penalties over the marketing of the pelvic mesh devices in a lawsuit brought by California. The company also agreed to pay $117million settlement in October, involving similar allegations with 41 other states and the District of Columbia.

Johnson & Johnson (J&J), in a quarterly filing with the U.S. Securities and Exchange Commission, disclosed that it is facing a joint investigation by at least 41 states, examining how the company marketed its Baby Powder and other talcum powder products.

The probe involving 41 states is the latest legal dispute J&J would be facing, as its products are already subject to thousands of lawsuits pending in the courts nationwide, each claiming that the manufacturer knew for decades that their products contained asbestos and increased the risk of cancer, yet failed to warn consumers.

Meanwhile, last week, the U.S. District Judge Freda L. Wolfson, presiding over coordinated discovery and pretrial proceedings, issued an opinion, rejecting the efforts made by J&J to exclude plaintiffs’ expert witness testimony, allowing the talcum lawsuits to proceed further.

In the past, J&J suffered a series of massive losses, at trial in state courts, after failing to exclude plaintiffs expert witnesses under the federal Daubert standard. The company is expected to face substantial pressure over negotiation on talcum powder lawsuits settlements or could face years of trials throughout the federal court system.

Earlier, U.S. District Judge Freda L. Wolfson issued an opinion, rejecting the efforts made by Johnson & Johnson (J&J) to exclude plaintiffs' expert witness testimony, allowing more than 17,000 talcum lawsuits to proceed further.

The judge issued a 141-page opinion determining that expert opinions offered by plaintiffs are sufficiently reliable and sound. J&J always defended the safety of its widely used talc-based products, arguing that general causation experts should be prevented from testifying at the trial.

The judge listened to the challenges faced by the parties for the admittance of expert witness testimony under the federal Daubert standard before scheduling the cases for trial. It requires that the opinions meet an evidentiary standard to ensure they are reliable enough to present to a jury.

The opinions to be presented by the plaintiffs' experts have also been limited. Talcum powder can cause cancer, a report based on epidemiological studies is the only general causation testimony to be allowed.

On April 27, U.S. District Judge Vince Chhabria, presiding over all federal Monsanto Roundup lawsuits, rejected a motion seeking to have an attorney appointed as interim counsel for all class action plaintiffs involved in the litigation.

According to the pretrial order issued, Judge Chhabria indicated two distinct issues:

• whether the proposed counsel will fairly and adequately present the interests of the class.

• whether the Court should exercise its discretion to appoint class counsel before deciding whether the case is suitable for class treatment.

The majority of the lawsuits involve claims from the users who are diagnosed with cancer due to the weedkiller, whereas there is a class action lawsuits filed by consumers who are not affected by the weedkiller but are seeking compensation for the future damages.

Judge Chhabria indicated that there is no reason to believe the on-going mediation by the appointed prominent mediator, Ken Feinberg, to resolve claims for individuals diagnosed with non-Hodgkin’s lymphoma will impact any future negotiations between the manufacturer and the exposure-only medical monitoring plaintiffs, if the class action claims are certified.

Bayer AG is currently facing over 52,000 Roundup cancer lawsuits in the courts across the United States. The trial dates have been postponed nationwide due to the COVID-19 pandemic, Bayer has been able to delay negotiations without facing additional large damage awards at trial, at least for the next few months.

In April 2020, Bayer agreed to pay nearly $40 million to resolve a class-action lawsuit claiming misleading and false advertisements over its controversial weed killer Roundup.

Plaintiffs filed a lawsuit in Missouri federal court in February 2019, against Scotts Miracle-Gro Products, Inc. and Monsanto Company, now owned by Bayer, alleging that the manufacturers falsely claimed that the active ingredient, glyphosate, only targets an enzyme that is not found in humans or pets.

Monsanto, Bayer’s subsidiary, has agreed to pay $39.5 million as part of the Roundup class action settlement. The manufacturer also agreed to remove language from Roundup Weed and Grass Killer labels, which previously indicated glyphosate only affects plant enzymes.

Currently, Bayer faces many lawsuits over its Roundup weed killer, but this case is different from thousands of cases faced by the manufacturer over allegations that long-term exposure of glyphosate causes non-Hodgkin’s lymphoma and other injuries to the users of Roundup.

Many state court cases have already been postponed following a settlement discussion between the parties and the prominent mediator Ken Feinberg.