What Happened In The MassTorts World Last Week? 2021-Feb-01

Talcum powder giant Johnson & Johnson (J&J) and its subsidiary Johnson & Johnson Consumer Inc. filed a response over the Plaintiffs’ Steering Committee's (PSC) motion to add a spoliation of evidence claim to the First Amended Master Long Form Complaint.

According to the January 12 opposition brief, the defendants argued that it's untimely for the plaintiffs to add the claim four years after the first Amended Master Long Form Complaint was filed. The defendants further added that the court had issued rulings on the admissibility of expert witness testimony eight months back, clearing the way for individual bellwether cases to proceed for the trial.

The motion to amend the Master Complaint was filed in December by the PSC. The motion noted that J&J failed to preserve samples of talc tested for asbestos and documents linked to industrial talc products and other illnesses. J&J was also alleged of destroying documents linked to a talc mine and its baby powder.

The lawsuits over talc-based products are growing in numbers, each alleging that the users were exposed to talc and asbestos particles present in the products, which resulted in ovarian cancer and other injuries.

The result of the bellwether trials will not hold an obligation on other cases, and the company is facing immense pressure to negotiate a settlement as the company has not established that it can strongly defend its conduct at trial.

J&J is currently facing more than 20,000 Baby Powder and Shower-to-Shower lawsuits and has been paying in millions to resolve them. Last year the company stopped selling its talcum-based products in the U.S. and Canada, claiming declined consumer demand and misinformation about the safety of the products.

Last week, Judge Robert B. Kugler of the U.S. District Court for the District of New Jersey, overseeing the blood pressure drug valsartan MDL, rejected bids from the defendants over the dismissal of warranty claims.

According to the January 22 order, Judge Kugler upheld a breach of express warranty claims against the manufacturers. However, the judge tossed those claims against the wholesalers and pharmacies.

The opinion noted that the claims are viable against the manufacturers as they marketed their products as "valsartan or valsartan‐containing, and all three sets of defendants should face certain breach of implied warranty claims. The manufacturers include Teva Pharmaceuticals USA Inc. and Mylan Pharmaceuticals Inc.

The judge reasoned that for prescription drugs, which are identified and marketed as the generic equivalent to a branded pharmaceutical listed in the U.S. Food & Drug Administration's (FDA) Orange Book and then selling that generic equivalent when it contains a contaminant not included in the Orange Book listing constitutes a breach of express warranty.

The judge said that manufacturers, wholesalers, and pharmacies escaped claims for alleged violations of the Magnuson‐Moss Warranty Act because the plaintiffs failed to present to any defendant that the drug was contaminated. Breach of implied warranty claims against manufacturers, wholesalers, and pharmacies arising under certain state laws was also tossed because the plaintiffs failed to plead the requisite privity element.

A couple of weeks ago, Judge Kugler issued an order stating that the consumers involved in the MDL cannot bring claims under the laws of states in which they don't reside. The plaintiffs were given a deadline of today to amend their complaints if they brought the claims in states where they neither reside nor were injured.

Currently, at least 650 cases are pending in the litigation docket, each raising similar allegations that long-term exposure to recalled valsartan drug results in stomach cancer, liver cancer, esophageal cancer, prostate cancer, pancreatic cancer, and other injuries.

The lawsuits are consolidated under MDL No. 2875 in the United States District Court, District of New Jersey, presided by Judge Robert B. Kugler, U.S.D.J and Hon. Joel Schneider, U.S.M.J.

On January 25, U.S. District Judge M. Casey Rodgers, presiding over the 3M earplugs multidistrict litigation, issued an order stating that trial for the three cases that were consolidated for the first jury trial will begin on Monday, March 29, 2021, and conclude by Tuesday, April 27, 2021.

According to the order, the trial and all pretrial proceedings will be conducted at the United States District Court, One North Palafox Street, Courtroom 5, Pensacola, Florida, and jury deliberations will begin at the latest by Wednesday, April 28, 2021.

The parties are required to file the following papers by March 8, 2021:

• The pretrial stipulation, prepared following Paragraph IV of the order dated January 25.

• For each case, a trial brief or memorandum with citation of authorities and arguments in support of each side’s position on all disputed issues of law, with a copy to opposing counsel.

• Written requests for instructions to the jury, together with proposed verdict forms.

As far as COVID-19 precautions and Procedures are concerned, the following measures will be taken:

• The deputy clerk will disinfect the witness stand after each witness’s testimony.

• The counsel will responsible for disinfecting the lectern after each use.

• Alcohol wipes will be provided.

• Additional specific COVID-19 precautions and procedures will be discussed with the parties and adopted at a later date.

The trial will begin as soon as jury selection is completed, and each trial day will begin at 8:00 AM with a court/counsel conference.

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, helping avoid the need for individual trials nationwide in the coming years.

Currently, more than 220,000 claims are filed by veterans from state courts in California, Minnesota, Oklahoma, and Texas against 3M Company, 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.

On January 22, U.S. District Judge Todd W. Robinson of the Southern District of California favored Johnson & Johnson (J&J) Consumer Inc. and Bausch Health US LLC over a lawsuit that claimed the defendants for misleading representations in advertising and marketing of the talcum products.

The lawsuit was brought by two plaintiffs seeking damages on behalf of all purchasers of the talcum powder products in the state of California. The plaintiffs contended that the products contained contaminants like asbestos, lead, silica, and arsenic that can cause cellular inflammation and oxidative stress.

J&J and the co-defendant were alleged of engaging in deceptive advertising practices for its baby powder and other talc-based products as an effort to obtain consumers' trust and increase sales.

The defendants filed a motion to dismiss, arguing that the plaintiffs failed to show that the alleged misrepresentations are in fact misleading and they have not satisfied Rule 9(b). Under Rule 9(b), the plaintiff must state with “particularity the circumstances constituting the fraud or mistake.”

According to the recent order, Judge Robinson stated that the plaintiffs failed to identify which particular advertisement they relied on and that they failed to show which specific statement they actually saw. Additionally, the judge said that the plaintiffs failed to show the products are unsafe and dismissed the case with prejudice.

Earlier this month, the Baby Powder giant argued over the Plaintiffs’ Steering Committee's (PSC) motion to add a spoliation of evidence claim to the First Amended Master Long Form Complaint, stating that it's untimely for the plaintiffs to add the claim four years after the first Master Complaint was filed.

J&J is currently facing more than 20,000 Baby Powder and Shower-to-Shower lawsuits and has been paying millions to resolve them.

Last year the company stopped selling its talcum-based products in the U.S. and Canada, stating a decline in consumer demand and misinformation about the safety of the products.

A Louisiana woman reached a settlement with Allergan USA Inc. over a lawsuit filed against the company over its allegedly defective Natrelle Style 410 FX implants, which had to be removed after they got ruptured.

According to the lawsuit filed in 2019 in a Louisiana federal court, the woman received Allergan’s breast implants in 2016, after she underwent a bilateral mastectomy. She started experiencing pain after her right implant collapsed partially, and her doctor stated that there was a spillage of a tan-yellow sticky gelatinous material, which was caused due to rupturing. The woman removed the implants in 2019.

The defendant made an attempt to dismiss the case, arguing that the product liability claims were pre-empted by federal law. Last year, U.S. District Judge Martin L.C. Feldman in the Eastern District of Louisiana allowed the case to proceed, stating that the plaintiff asserted viable non-pre-empted claims.

According to the order issued last week, the court stated that the parties agreed to a compromise, which resulted in the dismissal of the lawsuit with the right to reopen or seek a summary judgment to enforce the compromise if the breast implant settlement is not consummated within a reasonable time.

Currently, Allergan is facing nearly 150 product liability lawsuits and class action lawsuits over its breast implants, each claiming that the textured design was unreasonably dangerous and defective, and the manufacturer knew that it increased the risk of breast implant-associated anaplastic large cell lymphoma (BIA-ALCL) yet failed to warn about those risks.

The lawsuits are consolidated before U.S. District Judge Brian R. Martinotti in the District of New Jersey under MDL No.: 2921. Also, lawsuits filed in New Jersey are consolidated as part of multicounty litigation (MCL) in the New Jersey Superior Court for Bergen County, where the claims will be presided by Judge Rachelle Harz for coordinated discovery and pretrial proceedings.