Weekly Mass Torts Bulletin 2023-October-9

AstraZeneca Settles Kidney Damage Lawsuits for Nexium

AstraZeneca has agreed to pay $425 million in a settlement related to Nexium and Prilosec, two popular heartburn drugs, to resolve around 11,000 lawsuits alleging kidney injuries resulting from the drugs' side effects.

These medications belong to a class known as proton pump inhibitors (PPIs), which also includes Prevacid, Protonix, Dexilant, and others. While these drugs were once believed to be safe with few serious side effects, thousands of lawsuits, including Nexium and Prilosec lawsuits, have been filed against the manufacturers in recent years. These lawsuits share similar claims that PPI users suffered from acute kidney injury, chronic kidney disease, end-stage renal failure, and other side effects.

AstraZeneca's announcement of the settlement on October 3 comes after previous settlements totaling $108 million were reached with manufacturers of other PPI drugs, such as GlaxoSmithKline, Procter & Gamble, and Pfizer.

Due to the common questions of fact and law raised in these numerous complaints, the litigation has been centralized under a U.S. District Judge in New Jersey as part of a multi-district litigation (MDL) since late 2019.

AstraZeneca's settlement covers approximately 11,000 lawsuits, leaving only one unresolved case against the manufacturer, scheduled for trial in April 2024 in the U.S. District Court for the Middle District of Louisiana. It's worth noting that AstraZeneca maintains that its drugs are safe and that the cases lack merit, despite agreeing to resolve them.

The announcement of the settlement coincided with a stay on all requirements and deadlines for plaintiffs claiming to have used an AstraZeneca heartburn drug. The Court has indicated that it will provide guidance on how cases involving other defendants' products, not covered by this or previous settlements, will proceed in a future case management order. Additionally, the judge outlined new requirements for claims that do not settle in a separate docket control order.

This settlement was announced just days before the first bellwether trial, scheduled for October 10, involving a plaintiff who developed chronic kidney disease after taking Nexium.

11,000 More Lawsuits Hit J&J Over Baby Powder-Cancer Link

Johnson & Johnson is experiencing a significant increase, of at least 28%, in new lawsuits alleging that its talc-based baby powder causes cancer.

This surge in litigation has occurred just over five weeks after the company's attempt to resolve these cases through bankruptcy court was rejected.

A judge in New Jersey overseeing federal talc litigation revealed that more than 11,000 new complaints have been filed, as per a court transcript from a September 6 hearing. Johnson & Johnson had previously sought to settle around 40,000 talc-related lawsuits for approximately $9 billion by using the bankruptcy of its LTL Management unit, which was established to address health claims linked to talc containing a potentially harmful substance. However, this bankruptcy case was dismissed on July 28.

This increase in lawsuits is likely to complicate Johnson & Johnson's efforts to resolve nearly a decade of legal actions alleging that their talc-based Baby Powder leads to ovarian cancer and asbestos-related cancer. The company, which has appealed the dismissal of the bankruptcy case, is now preparing to defend itself in a state-court trial in California scheduled to begin next month.

Experts suggest that Johnson & Johnson may need to significantly increase its settlement offer to resolve these cases effectively. The company faces a growing challenge in the talc litigation, and the situation appears to be worsening.

Johnson & Johnson has responded to the surge in lawsuits, stating that it wasn't unexpected since new cases were not allowed while the LTL unit was in bankruptcy proceedings. The company is now prepared to defend itself in the tort system against these talc-related claims.

In 2020, Johnson & Johnson withdrew its talc-based powders from the US and Canada markets due to declining sales and replaced them with a cornstarch-based alternative. The company also pledged to remove all talcum powder-containing baby products worldwide by the end of the year.

Johnson & Johnson faces multiple jury trials early next year regarding allegations that its executives were aware of trace amounts of asbestos in talc since the 1970s but did not inform consumers or regulators. The company maintains that its talc-based products do not cause cancer and that it has appropriately marketed Baby Powder for over a century.

As part of its bankruptcy court strategy, Johnson & Johnson offered nearly $9 billion to resolve all current and future liabilities related to talc litigation. However, plaintiffs rejected this offer as financially inadequate. An appeals court ruled that Johnson & Johnson had misused the bankruptcy process in an attempt to reach a settlement.

Despite filing a second bankruptcy case in the hopes of reviving settlement opportunities, a judge in New Jersey dismissed it, concluding that the talc litigation did not create sufficient financial stress for Johnson & Johnson to justify using bankruptcy to resolve it. The company had pointed to a $4.7 billion jury verdict in a Missouri talc case in 2018 as an example of why it couldn't handle the litigation through the regular tort system. Ultimately, the company paid $2.1 billion to the 20 women involved in that case.

Over the past decade, Johnson & Johnson has faced numerous talc trials, with varying outcomes, including wins, losses, and settlements. As of February, the company reported facing 40,300 cases alleging that its talc-based powders cause cancer. With the addition of the 11,000 new cases, the total case count now stands at 51,300, not accounting for cases filed in state courts.

NJ Court Tosses $223.8M J&J Talc Verdict

A New Jersey appeals court has invalidated a $223.8 million verdict against Johnson & Johnson, which had been awarded by a jury to four individuals alleging they developed cancer due to asbestos exposure from the company's talc powder products.

The Appellate Division of the Superior Court of New Jersey determined that the lower court judge should not have permitted certain scientific expert testimony presented by the plaintiffs during the trial.

Johnson & Johnson's Worldwide Vice President of Litigation stated that this decision strongly rejects what they referred to as "junk science" presented by so-called "experts" paid by asbestos-related mass tort lawyers. The company reiterated its stance that its talc products are safe and do not contain asbestos. The plaintiffs' attorney did not provide an immediate response to the decision.

The initial jury ruling required Johnson & Johnson to pay $37.2 million in compensatory damages and $750 million in punitive damages, though this amount was reduced to $186.5 million under state law.

In overturning the verdict and ordering a new trial, a panel of three judges from the appeals court determined that the trial court had not properly assessed whether the plaintiffs' experts had based their testimony on sound scientific principles.

The judges found that three of the experts had not adequately explained the facts or methods behind their opinions that the plaintiffs had developed cancer due to asbestos exposure from talc products.

Johnson & Johnson is separately pursuing legal action against one of these experts based on a study she co-authored in 2019, although this study was not central to the jury's decision. This particular expert, who has testified for plaintiffs in numerous talc-related cancer cases, has argued that the lawsuit against her is an attempt to intimidate scientific experts and discourage them from testifying against the company.

Johnson & Johnson faces more than 38,000 lawsuits asserting that its talc products, including Johnson's baby powder, may contain asbestos and have been linked to various cancers, including ovarian cancer and mesothelioma.

The outcomes of these claims have been mixed, with some significant victories for plaintiffs, including a $2.1 billion judgment upheld by an appeals court. The U.S. Supreme Court declined to review that verdict.

Johnson & Johnson has recently succeeded in reversing some unfavorable verdicts, including a $117 million judgment in the same New Jersey appeals court and a $120 million verdict in New York.

This latest legal victory for the company follows its unsuccessful attempt in July to move tens of thousands of talc-related claims into bankruptcy court, where it sought to resolve them through an $8.9 billion proposed settlement. Johnson & Johnson is currently appealing that ruling.

Trials had been on hold during the bankruptcy court petition, but they can now proceed. One trial allowed during the bankruptcy petition process resulted in an $18.8 million verdict in favor of a terminally ill California man.

Johnson & Johnson has disclosed that the cost of talc-related verdicts, settlements, and legal fees has reached approximately $4.5 billion. The company ceased selling talc-based baby powder and shifted to cornstarch-based products due to the increasing number of lawsuits and concerns about the safety of talc-based products.