Weekly Mass Torts Bulletin 2021-Apr-12
Elmiron Vision Lawsuits Near 200 In The MDL
On March 29, a Case Management Order (CMO) was issued, which indicated that as of March, 196 cases over Elmiron vision problems were filed in federal and state courts nationwide.
The CMO also noted that there are 171 cases pending in federal multidistrict litigation (MDL), and another 25 cases filed in New Jersey and Pennsylvania state courts combined.
Additionally, it also asked the parties to meet and actively discuss proposed orders and stipulations to advance the litigation, which should include:
An Order addressing plaintiff fact sheets (PFS), defense fact sheets (DFS), and a corresponding electronic vendor.
A Scheduling Order, including the future trial date.
A protocol governing remote depositions.
Elmiron, also known by its generic name pentosan polysulfate sodium (PPS), is a medication prescribed to treat interstitial cystitis (IC). Many cases of pigmentary maculopathy, which involves changes to the retina, causing vision loss and impairment, have been reported among its users, mostly by individuals who have been using it for three years or longer.
A study was also published last month in the medical journal Current Opinion in Ophthalmology in which researchers indicated that one out of every five long-term users of Elmiron is prone to be left with retinal maculopathy.
In January, U.S. District Judge Brian R. Martinotti, presiding over all Elmiron lawsuits, appointed a 25-member committee to serve in various leadership positions in the MDL. The committee would include three co-lead counsel and one liaison counsel, seven Executive Committee members, and 14 Steering Committee members.
The next case management conference is scheduled for Wednesday, April 14, 2021.
Study Indicates Mesothelioma Cases More Among Women
On March 26, a study was published in a peer-reviewed medical journal Clinical Lung Cancer, which indicated that the mesothelioma patient population included more women, and the disease is often diagnosed later in life.
The study was conducted by a team of Canadian researchers, which included researchers from Ottawa Hospital, its associated cancer center, and Montfort Hospital at the University of Ottawa.
Mesothelioma is a very rare and aggressive cancer that affects the lining of the lungs, heart, and abdomen called the mesothelium. It is caused when a person is exposed to asbestos fibers. The average life expectancy for mesothelioma patients is 12 to 21 months and around 3,000 cases are diagnosed yearly in the U.S.
The study revealed that over a decade the percentage of women diagnosed with malignant mesothelioma raised to around 9%, with 11.6% during 1991-1999 the number surged to 20.5% from 2010 to 2019.
The study also noted that currently patients are being diagnosed with the disease at a very later age as compared to the patients who were diagnosed in the previous decade. The median age during 1991-1999 was 65.8, which went up to 75 between 2010 and 2019.
The disease has also put talcum powder manufacturers under the legal radar after consumers alleged their products for asbestos contamination. Johnson's Baby Powder, one of the most popular products containing talc, is linked to causing cancer.
Johnson & Johnson is currently facing more than 20,000 baby powder and Shower-to-Shower lawsuits and has been paying millions in settlements to resolve the claims.
Service Groups Support J&J Over $2.1B Talc Verdict Review
On April 1, the U.S. Chamber of Commerce and other business groups filed amici briefs in the U.S. Supreme Court requesting to review the Missouri jury's $2.1 billion verdict awarded to a group of 22 women who alleged Johnson & Johnson (J&J) talcum powder products for their ovarian cancer.
According to the amicus brief filed by the Chamber of Commerce, the National Association of Manufacturers, the American Tort Reform Association and others, the consolidation of lawsuits prevented the defendants from putting a fair defense. Another group argued that the approach of consolidation by the lower court distorted the constitutional principle of specific jurisdiction.
The initial verdict favoring a group of 22 women was given in July 2018 by a state court jury. J&J appealed over the decision, following which the Missouri appeals court upheld the jury’s finding of liability but slashed the $4.69 billion damages award in June 2020.
If the justices allow J&J's petition for a review, then new constraints could be placed on juries' power to award punitive damages.
The business groups believe that the problem was the combining of several lawsuits for one trial, which puts a heavy weightage on emotional aspects of the personal injury case. They also added that the juries when presented with 22 cases would focus on things in common, which in this injury litigation was J&J's product and the disease.
The brief noted that high court's guidance is required to establish due process limitations over the use of plaintiff joinder. The brief also highlighted that the joining of several plaintiffs together for a trial created a systemic bias, strengthening the false inference of causation, and the joinder also stunted the ability of the defendant to present issues related to the individual plaintiffs.
Currently, the talcum powder giant is facing more than 25,000 Baby Powder and Shower-to-Shower lawsuits, each raising similar allegations about the presence of asbestos and the risk of cancer.
Recently, J&J had also filed an Annual Report Pursuant to Section 13 of the Securities Exchange Act of 1934, indicating that it has set aside $3.9 billion in litigation expenses in 2020, which is primarily associated with talc-related reserves and certain settlements.
Default Judgment Issued Against Endo Over An Opioid Case
On April 7, Endo International plc announced that it received a default judgment against its subsidiaries Endo Health Solutions Inc. and Endo Pharmaceuticals Inc. by a Tennessee state court over a lawsuit filed on behalf of a baby who was born with neonatal abstinence syndrome (NAS) in 2015.
NAS is a combination of ailments, which is often caused when a baby is withdrawn from certain drugs that he/she is exposed to in the womb before birth. It is often caused when a woman regularly uses opioids during pregnancy.
In January, a study was published in the Journal of the American Medical Association (JAMA) in which researchers indicated that the rates of NAS and maternal opioid-diagnosis (MOD) increased by 82% and 131%, respectively, in the U.S. during 2010-2017.
The lawsuit was filed in the Circuit Court for Sullivan County at Kingsport, Tennessee in 2017. Allegations were made by three Tennessee District Attorneys General and an individual plaintiff that the company violated Tennessee's Drug Dealer Liability Act (DDLA) by illegally marketing the drug and fueling the nation's opioid crisis.
In a December 2020 ruling, the Tennessee Supreme Court ruled that the state's District Attorneys General cannot bring claims under the DDLA.
According to Chancellor E.G. Moody of the Sullivan County Circuit Court, who issued the order on Monday, the company failed to follow a 2018 discovery order, asking to produce records dating from 2007 over its knowledge of suspicious drug activities, like over-prescribing, its policies for potential abuse and diversion, and the volume of its opioids in the illegal drug market.
It further noted that the company did not search the files of any of its 86 Tennessee sales representatives, any of its 18 district managers overseeing sales in the state, or files of its compliance officers.
The order also states that the damages will be decided later for the lawsuit, which is seeking $2.4 billion on behalf of the baby.
The company asserted that it produced hundreds of thousands of additional documents, offering additional depositions at its own expense. The company stated that the order is procedurally, factually, and legally deficient and will seek review by the Tennessee appellate courts.
Purdue Files Motion To Extend Stay On Its Opioid Litigation
On April 7, Purdue Pharma L.P. filed a motion asking a New York bankruptcy judge to extend a stay over the opioid lawsuits filed against it and the owner of the company, the Sackler family.
According to the motion filed, the company stated that the proposed Chapter 11 plan of reorganization, which was filed last month might get affected if the litigation resumes before it submits the Chapter 11 plan to the court.
The motion also states that the company and its creditors are involved in intense negotiations to find a resolution over the claims and they believe that a plan disclosure statement to submit to the court will be ready by early May.
Last month, the company was granted a 30-day extension for an injunction, which has been in place since October 2019 that halted opioid lawsuits against the company and the Sackler family. In the same month, the company filed a proposed Chapter 11 plan of reorganization, which included an agreement that the Sackler family would contribute $4.275 billion to a trust that is set up to resolve opioid-related claims.
The company filed for Chapter 11 protection in September 2019, following its announcement of a tentative settlement deal with 24 states over the opioid crisis. The tentative deal requires Purdue to be turned into a public trust, share profits with claimants against the estate, and fund programs concerning the opioid epidemic.
The New York Attorney General's (AG) lawsuit over the opioid crisis has also got delayed due to the concerns related to COVID-19, and the Suffolk County Supreme Court Justice Jerry Garguilo indicated that the trial will likely begin in June.