What Happened In The MassTorts World Last Week? 2020-Oct-26

Last week, Bayer's arguments to review the first Roundup-cancer verdict maintaining that the plaintiff who filed the lawsuit failed to establish the company's liability for his non-Hodgkin’s lymphoma was rejected by the California Supreme Court.

The plaintiff was awarded $289 million by a San Francisco jury in 2018.  A trial judge later slashed the verdict to $78.6 million, and the Court of Appeal, after reviewing the case, further reduced the award to $20.5 million.

Both the parties asked the U.S. Supreme Court to review the $20.5 million decision, where the plaintiff asked to restore the higher damage award, and the manufacturer argued that the ruling was at odds with federal law and settled legal principles.

The settlement deal is separate from the more than $10 billion that Bayer announced in June to resolve thousands of claims in the United States that allege the weedkiller of causing cancer.

Bayer also released a statement indicating that progress has been made in the development of a “revised” plan to resolve potential future Roundup litigation, which will be finalized, and a motion will be filed for preliminary approval of the plan.

Last month, three major law firms representing several plaintiffs involved in the Roundup litigation indicated that they reached an agreement with Bayer. The notification of the deal indicating a “fully-executed and binding Master Settlement Agreement with Monsanto” is filed with the U.S. District Court for the Northern District of California.

Medical examinations and hearing tests of the plaintiffs involved in the 3M earplugs lawsuits started last week as per the protocol set by U.S. District Judge Casey Rodgers, overseeing the litigation in the Northern District of Florida.

The case order drawing the protocol of the examinations was released earlier this month for the first set of military veterans who are a part of initial bellwether trials.

According to the order, the total examination time for each plaintiff was set to four hours, and the results of the test had to be produced to the plaintiffs within seven days following the examination. The parties also have the opportunity to conduct rebuttal tests.

The first series of individual bellwether trials are scheduled to begin on April 5, 2021, during which the results of the testing will be used.

The result of these trials will not hold an obligation on other cases and will be closely monitored by the parties as it would influence settlements for veterans, which would avoid the need for individual trials nationwide in the coming years.

Currently, more than 150,000 claims are filed by veterans against 3M Company and its subsidiary Aearo Technologies, each raising similar allegations that the hearing loss injuries were caused by defective 3M earplugs that were standard issue by the military between 2003 and 2015.

Last Friday, U.S. District Judge William H. Orrick III, overseeing the growing JUUL litigation, issued a court order ruling to dismiss the Racketeer Influenced and Corrupt Practices Act (RICO) against the manufacturer. However, the company's bid to toss or put a stay over the lawsuits that claim the e-cigarette giant for fueling the vaping epidemic was rejected.

The company argued that the court did not have primary jurisdiction over e-cigarette marketing and the Food and Drug Administration (FDA) holds the authority. The company also noted that the claims brought by consumers and local governments are preempted by federal law.

Judge Orrick, in the order, stated that the allegations are taken as true and reasonable inferences and are plausibly supported over which relief can be granted.

RICO Act is a United States federal law usually brought for criminal penalties and a civil cause of action against criminal organizations, such as the mafia and large drug cartels. Over the lawsuits filed against JUUL, the RICO claims would have allowed courts to award triple damages for deliberately targeting teens.

The use of e-cigarettes among high school students has increased 10-fold, from 1.5 percent in 2011 to 16 percent in 2015, due to its easy availability on the internet. According to a national survey of middle schools and high schools, 43.3 percent of schools had to implement JUUL-specific policy, along with an e-cigarette policy.

The first set of bellwether trials will begin in February 2022, which would involve a small set of representative claims that will undergo a case-specific discovery process to learn how juries respond to specific evidence and testimony that will be repeated throughout the litigation.

JUUL Labs Inc. is currently facing more than 1,100 lawsuits and class action claims, each raising similar allegations that the manufacturer created false and misleading advertisements for JUUL, plaguing the U.S. with nicotine addiction problems in recent years. The JUUL litigation has been centralized under MDL. No. 2913 in the U.S. District Court for the Northern District of California.

On Wednesday, New York Attorney General Letitia James issued a press release indicating that the Suffolk County State Supreme Court ordered to begin the jury selection in January 2021 over the state's opioid epidemic trial against multiple drugmakers and distributors who are alleged of fueling the nationwide addiction problems.

The hearing was held via video conferencing, which had over 60 attendees, including the government and attorneys representing drugmakers Johnson & Johnson's Janssen Pharmaceuticals, Endo Health Solutions, Teva Pharmaceuticals USA Inc., and Allergan Finance LLC, as well as distributors McKesson Corp., Cardinal Health Inc., AmerisourceBergen Drug Corp., and Rochester Drug Cooperative Inc.

New York state court Justice Jerry Garguilo stated that the court is anxious to start the trial for which the jury selection will be followed by opening statements in February or March. The judge compared the 3,000 federal opioid litigation cases and several hundred state cases to a gigantic gelatinous monster based on a classic 1958 sci-fi horror film, 'The Blob.'

The trial initially set to begin on March 20, 2020, got delayed due to the COVID-19 pandemic, which grew rapidly across New York. Apart from the manufacturers and distributors mentioned, the suit also names Purdue Pharma, the Sackler family, and Mallinckrodt, for whom cases are moving separately through U.S. Bankruptcy Court.

Last week, Purdue Pharma LP agreed to plead guilty to three criminal charges over its involvement in the nation’s opioid crisis. The company will also pay $8.3 billion to settle federal probes over its marketing practices of the highly addictive painkiller. Additionally, the Sackler family would have to pay a separate $225 million civil settlement to the government immediately, and another $250 million after its bankruptcy concludes.

Last week, Teva Pharmaceuticals and The Cooper Companies, Inc. filed a motion asking the Judicial Panel on Multidistrict Litigation (JPML) to reject the consolidation of all ParaGard IUD lawsuits, requested by plaintiffs last month, claiming attorney's advertising resulted in the rise, and it is not a “genuine mass tort.”

On September 24, the plaintiffs involved in the IUD defects lawsuits filed a motion asking the JPML to consolidate the cases before one judge in California federal court for coordinated pretrial proceedings to avoid conflicting pretrial rulings from different courts, avoid duplicative discovery, and serve the convenience of common witnesses, parties, and the judicial system.

In response to the motion, the manufacturers said that allegations made by plaintiffs would require the discovery of particular manufacturing lots along with depositions of their individual physicians, which limits the consolidation of lawsuits. They also stated that the need for common discovery or depositions could be done through informal coordination, as several plaintiffs are represented by the same law firm.

The manufacturers also asserted that the attorneys representing the plaintiffs do not want the judge to take a close look at each individual case as several cases have been dismissed or granted summary judgment on the merits.

The companies have also suggested that if the JPML finds consolidation feasible, then the cases should be sent to the Southern District of New York, which is closer to multiple defendants with locations in Ohio, Connecticut, New Jersey, and Pennsylvania.

Alternately, the Middle District of Florida or the Southern District of California was also suggested if the panel plans to send the cases to the West Coast. The reason stated for the suggestion was U.S. District Judge Anthony J. Battaglia, who has experience with ParaGard cases, as he has heard two suits filed by the counsel who is requesting consolidation.

Currently, at least 55 actions are pending in 29 different judicial districts, each claiming misconduct on the part of the defendants, which resulted in injuries and painful complications when the fractured or broken device was being removed.