What Happened In The MassTorts World Last Week? 2020-Sep-14

Last week, Metalclad Insulation LLC's counsel, Sheila G. O'Gara, in response to the complaint made in an ongoing online asbestos trial that Metalclad's expert witnesses never got whole documents, said that the documents would be presented to the jury during the witness' examination and the limitations were due to the restrictions posed by the coronavirus pandemic.

The lawsuit involves a retired Rear Admiral and his wife who filed a lawsuit claiming that the asbestos exposure during the installation and removal of Metalclad-supplied insulation on several Navy ships in the U.S. Navy caused his mesothelioma, which will likely cut his life short by years.

The case, originally headed for an in-person trial in July, was moved for an online trial via Zoom by Alameda County Superior Court Judge Brad Seligman, after finding that one juror came down with a fever. The asbestos defendant is appealing for a mistrial that has been denied multiple times by the judge ruling that a friendly discussion between the plaintiffs and two jurors over how to put up a Zoom virtual background didn't unfairly influence the panel.

William F. Ruiz of Maune Raichle Hartley French & Mudd LLC, the counsel representing the couple, examined Metalclad corporate representative Donald Rees Trueblood, who worked from 1997 till the company ceased its operations in 2014. The representative acknowledged that the company sold asbestos-containing products that weren't "pure" asbestos products and stopped its sale sometime after 1973. He also noted that the company didn't place any additional warnings or instructions on the products, but the products had warning labels required by the Occupational Safety and Health Administration.

The case is the second of the two asbestos trials being conducted on Zoom in Alameda County. The first one ended in a defense verdict for Honeywell over a $70 million asbestos suit.

Last Monday, a New York woman, filed a lawsuit against Teva Pharmaceuticals USA Inc. and the Cooper Companies Inc. in the state's federal court, alleging that the ParaGard intrauterine device (IUD) broke off in her uterus during removal.

According to the lawsuit, the plaintiff had the device implanted in June 2017. In September, the same year, she went to have it removed after an ultrasound showed it moved out of place. Her physician tried to remove the device following Teva's instructions, but a part of the device broke off, resulting in surgery to have the remaining part of the device removed. Johnson filed the suit claiming that she suffered a range of injuries, including loss of reproductive health, pain, suffering, mental anguish, and loss of enjoyment of life, on top of the medical bills.

The lawsuit also claims that Teva amplified the benefits of the device and knew or should have known about its defects based on trials, third-party studies, and consumer experience and complaints. The lawsuit also names the Cooper Companies and a subsidiary as defendants, as they purchased the rights to the ParaGard in September 2017.

The complaint indicated that more than 1,600 cases of the ParaGard breaking were reported to the U.S. Food and Drug Administration (FDA), out of those more than 700 were deemed serious.

The plaintiff is seeking undefined damages for 11 different counts, including negligence, common law fraud, breach of express and implied warranty, design and manufacturing defects, failure to warn, and violations of consumer protection laws.

Several lawsuits have been filed against the birth control device involving similar allegations of problems during removal surgery. The lawsuits are pending in their individual courts, and an MDL is yet to be formed.

Last month, Columbian researchers published a study in the medical journal Plastic and Reconstructive Surgery-Global Open (PRS) stating that brands other than Allergan and Mentor were found to be associated with breast implant-associated anaplastic large cell lymphoma (BIA-ALCL).

According to the study, the researchers found 18 cases of BIA-ALCL in Columbia between 2011 and 2019. Out of these cases, seven were linked to Allergan implants, and three were linked to Mentor implants, both accounting for just above 55%. Additionally, Silimed Polyurethane implants were linked in two cases, and one each for implants manufactured by Eurosilicone, Nagor, Orion, and Poly Implant Prothèse (PIP).

The researchers also noted that several cases were identified in the late stages of development, resulting in chemotherapy, which could have been avoided simply by removing the implants and the surrounding fluid, if detected early. Out of the 18 cases, one died, and another developed bone marrow problems, requiring a bone marrow transplant. 92.3% of cases reached disease-free survival after about 31 months of follow-up, as per the study.

Last month, the Food and Drug Administration (FDA) released a report indicating that the number of BIA-ALCL cases increased by nearly 28% in the second half of last year. The FDA, in its report, mentioned that most of the identified cases are specifically linked to the textured design of certain Allergan implants.

The July 2019 forced recall by Allergan has resulted in a rise in the number of breast implant lawsuits, each claiming that the textured design was unreasonably dangerous and defective. Currently, Allergan faces at least 150 product liability lawsuits and class action lawsuits over breast implant cancer problems. Mentor is also facing a couple of cases, and apart from these two manufacturers, none of the others are facing any litigation.

On August 31, Massachusetts General Hospital researchers published a single-center observational cohort study in the medical journal JAMA Neurology, indicating that selective serotonin reuptake inhibitor (SSRI) antidepressants,  prescribed to individuals after suffering a stroke, may increase the risk of suffering a brain bleed later.

The intracerebral hemorrhage (ICH) study involved 1,200 adults who were hospitalized, treated, and discharged after suffering from a stroke. The ICH survivors had depression from January 2006 to December 2017 and were followed for 54 months.

SSRIs, such as Paxil or Zoloft, are widely used to treat depression after a stroke caused by brain bleeds. According to the study, the increased risk of ICH recurrence or having another brain bleed was more for patients with preexisting clinical, genetic, or neuroimaging risk factors for hemorrhagic stroke. The patients were 71 years old, on average, and the risk heightened in people who consumed SSRI antidepressants as compared to the ones who didn't, as per the report.

In a study published in 2016, SSRI antidepressants were linked to a higher risk of recurring brain bleeds among patients taking blood thinners like Warfarin or Xarelto.

The researchers concluded that although SSRIs are considered the primary treatment after stroke, it may not be the best course of treatment for patients who have a higher risk of brain bleeds after stroke and may lead to another hemorrhagic bleed in the brain. The researchers also warned doctors to weigh the decision to treat depression among stroke survivors with SSRIs against the increased risk of the patient suffering another brain bleed.

U.S. District Judge Edmund A. Sargus, overseeing the federal multidistrict litigation (MDL) over all hernia mesh lawsuits filed against C.R. Bard, denied the manufacturer's motion for summary judgment in the first bellwether case to completely exclude the plaintiff’s expert witnesses from testifying at trial and to avoid the jury from considering punitive damages in cases involving problems with the Ventralight ST product.

Judge Sargus issued two motions on September 1, denying most of the attempts made by Bard and clearing the way for the case to go for a trial, which is set to begin in January 2021.

According to an evidentiary motions order, the attempt to exclude the plaintiff’s expert witnesses was rejected after determining that most of the expert opinions were based on sufficiently sound science for the jury to consider.

In a separate dispositive motions order, the attempt to prevent punitive damages was rejected, and the plaintiffs were allowed to pursue claims, including those related to design defects, failure to warn, negligent misrepresentation, and breach of implied and express warranty. However, the manufacturer was granted motions for summary judgment over manufacturing defect claims and allegations under the Consumer Sales Practices Act, and Judge Sargus also noted that claims related to a subsequent recurrent hernia, and resulting injuries and treatment, could not be pursued.

The lawsuit that will first go before a jury alleges that the plaintiff experienced complications with Bard Ventralight ST mesh, a type of polypropylene patch involved largely in other claims pending in the litigation. The trial, which was originally scheduled to begin in May 2020, has been pushed back from September 2020 to January 2021 due to the interruptions caused by the ongoing COVID-19 pandemic crisis.

Currently, C.R. Bard faces more than 8,000 product liability lawsuits over hernia mesh products, which include Bard’s Ventralex, Ventralight, Perfix, 3DMax, and other patch designs. Bard hernia mesh claims are consolidated under federal multidistrict litigation (MDL) No. 2846 in the Southern District of Ohio, presided by Honorable Edmund A. Sargus, Jr., and Honorable Kimberly A. Jolson.