What Happened In The MassTorts World Last Week? 2020-Sep-21

On September 9, U.S. District Judge Freda Wolfson, overseeing the talcum powder lawsuits, rejected Johnson & Johnson's (J&J) request to appoint court-approved experts to assist jurors in upcoming bellwether trials, stating that the move would interfere with the independent assessment of the evidence by the jurors.

On August 12, J&J sent a letter seeking permission to file a motion to appoint an independent expert witness in the areas of epidemiology and cancer biology, to help the jurors understand scientific issues in the litigation, as both the parties would be presenting “diametrically opposite scientific positions” about whether talc use can cause ovarian cancer.

The plaintiffs urged opposition to the proposal, stating that it raises significant Constitutional concerns, and the questions that the defendant wants independent expert witness to be answered must be addressed by the jury.

According to the letter order issued by the court, Judge Wolfson said that such an extreme measure is not required as the court has cleared competent experts from both sides to testify at trial. She also noted that such a group of experts would needlessly delay the litigation and may have a deleterious effect as the jurors would have to weigh on the testimony of  ‘neutral’ experts, which would prove to be unjust.

Currently, J&J faces more than 20,000 Baby Powder and Shower-to-Shower lawsuits, each raising similar allegations about the presence of asbestos and the risk of cancer.

Earlier, Johnson & Johnson (J&J) asked the Missouri Supreme Court to reverse the $2.1 billion talc verdict. The company stated that the lower courts misapplied the law by improperly combining nearly two dozen cases from around the country into a single trial, despite a U.S. Supreme Court decision prohibiting the practice.

The case involved a group of 22 women who allege J&J's talcum powder products for causing cancer. The initial verdict that favored the plaintiffs was given by a state court jury in July 2018, following which the Missouri appeals court reduced the damages award to $2.1 billion in June 2020.

Talc is one of the main ingredients in baby powder and is also used in makeup and body powders. Cosmetic companies are not required to share their safety information with the Food and Drug Administration (FDA). Hence, the FDA cannot take any action without any scientific data that will prove the product to be harmful.

FDA does not require Baby Powder warnings on talc-based product labels, even after several studies highlighting the cancer risk. Currently, J&J faces several lawsuits against talcum products with similar claims of the presence of asbestos and cancer risk.

Last Wednesday, Eisai Inc., Arena Pharmaceuticals, and CVS Pharmacy filed a joint memorandum of law requesting Judge Philip M. Halpern in the U.S. District Court for the Southern District of New York to dismiss a class-action lawsuit filed on behalf of former users of Belviq over the allegation that the weight loss drug increases the risk of cancer.

Lorcaserin, marketed under the brand name Belviq, is a prescription weight loss drug developed to treat obesity. The diet drug was developed by Arena Pharmaceuticals, and the rights were sold to the Japanese drugmaker, Eisai Inc., in 2017.

In February, Eisai Inc. voluntarily announced a Belviq recall after receiving safety communication from the Food and Drug Administration (FDA). The recall was based on a clinical study that showed an increase in the occurrence of certain cancers among Belviq users.

The class action complaint was filed in March by a plaintiff on behalf of the nationwide consumers, alleging that the manufacturers and distributors knew or should have known about cancer risks before the drug was marketed. The plaintiff is trying to seek damages for all users of the prescription weight-loss pill in New York. 

The defendants, through the memorandum, asserted that the plaintiff did not make the case as per New York laws, and it fails to state a cause of action or any misleading advertising in the lawsuit. They have also filed supplemental memorandums claiming the suit serves no plausible claim for relief under New York laws.

Belviq lawsuits are in their early stages, but the number might grow, considering its past sales. Claims have been filed seeking reimbursements for the premium price paid by users of the recalled diet drug, as well as funding for medical monitoring that users would require to detect cancer that may surface months or even years after last exposure.

On Monday, three major law firms representing several plaintiffs involved in the Roundup litigation indicated that they reached an agreement with the manufacturer, Bayer.

Bayer AG has made the new deal with California-based Baum Hedlund Aristei & Goldman law firm, the Andrus Wagstaff firm from Colorado, and the Moore Law Group of Kentucky. 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.

Last month, the firms had raised doubt over the manufacturer's $10 billion settlement agreement announced this year. They outlined their concerns with U.S. District Judge Vince Chhabria, overseeing the Roundup multidistrict litigation docket, stating that the manufacturer was welching on its deal.

In response, Judge Chhabria said that he would not lift the stay on the litigation as he has confidence in Feinberg’s ability to reach a resolution in 30 days, but suggested parties to start to rework on getting the litigation back on track as he won't extend the stay any further. The parties have been asked to be prepared by the next case management conference that is scheduled for September 24.

Last Thursday, Bayer released a statement indicating that progress has been made in the development of a “revised” plan to resolve potential future Roundup litigation. The revised class plan will be finalized over the coming weeks, which will be followed by a motion for preliminary approval of the plan.

Judge Chhabria received several confidential letters alleging the Roundup manufacturer of reneging on its deal with the plaintiffs in the recent hearing. He concluded that he would not lift the stay, expressing his confidence in the plaintiff's ability to reach a resolution in 30 days after hearing arguments from both parties. The jury even said that he won't extend the stay any further, so the parties should start reworking on getting the litigation back on track. The jury has asked the parties to be prepared by the next case management conference that is scheduled for September 24.

Roundup is one of the most commonly used weedkillers that contains Glyphosate. Glyphosate was patented by a U.S. company, Monsanto in 1970. Monsanto was acquired by Bayer on June 7, 2018.

The company has acknowledged the new filing of 52,500 Roundup lawsuits apart from the current 125,000 lawsuits. All the lawsuits are consolidated under MDL No. 2741 in the U.S. District Court for the Northern District of California.

Johnson & Johnson (J&J) is facing insurance fraud charges over opioid marketing and downplaying its addiction risks to doctors and elderly patients. The charges were filed by New York’s Department of Financial Services on Thursday, as per the state's Governor Andrew Cuomo.

Cuomo, in his statement, indicated that the crisis had affected many lives, and the state will continue to fight against those who helped fuel this public health catastrophe and will utilize every means to ensure they are held fully responsible.

The department alleged that J&J and its subsidiary Janssen Pharmaceuticals played a major in the opioid crisis by targeting elderly patients, employing marketing materials, and involving “seemingly independent” advocacy groups and “key opinion leaders” to dismiss opioid addiction cases.

The charges state that a 3,000% rise was seen nationally and almost 500% rise in the state of New York in private insurance claims related to opioid dependence diagnosis between 2007 and 2014. New Yorkers who have commercial health insurance had to overpay about $1.8 billion in premiums in the past decade due to the opioid crisis, as per the statement by the department.

Janssen, in response to the charges, argued that several studies, including one from Drug Abuse Warning Network (DAWN), indicate that its Duragesic patch is less potential for addiction, and its label warned that high fentanyl content might make the patches "a particular target for abuse and diversion."

The department stated that the studies are flawed, and internal emails reveal that the manufacturer knew such studies were not effective measures of the drug's safety or efficacy. A hearing has been scheduled for January 25 to discuss the matter, the department said.