Weekly Mass Torts Bulletin 2021-May-24

Jury Rejects J&J's Bid To Overturn $70 million Verdict

Johnson & Johnson's (J&J) bid to overturn a $70 million jury verdict has been rejected by the U.S. supreme court as the company failed to warn the users about the risks associated with their product Risperdal, an antipsychotic drug.

In 2016, the Philadelphia Court of Common Pleas ruled that J&J failed to warn about the side effects of Risperdal to a patient who started using the drug at the age of 4. The patient developed gynecomastia a year later. Gynecomastia is a hormonal imbalance that causes swelling of breast tissue in boys and men.

Responding to the lawsuit, attorneys for J&J argued that the drug was not meant for pediatric use and the company even warned about its side effects. The Philadelphia jury disagreed with the J&J's defense and also claimed that the company mishandled the evidence that could expose the company.

The U.S. Food and Drug Administration is overseeing the drug label warnings, but dosage and treatment of patients outside the FDA's approval is a common thing among doctors.

In 1993, the FDA approved Risperdal for prescribing to people suffering from schizophrenia and bipolar disorder. Later in 2006, the drug was approved for children suffering from irritability due to autism.

Currently, the company is facing about 10,000 Risperdal lawsuits. Earlier, in one of the verdicts, the jury penalised the company with $8 billion which was later revised to $6.8 million.

$25M Verdict Upheld Against Monsanto

On Friday, the federal appeals court supported a $25-million verdict against the maker of Roundup as thousands of litigants blamed the weed killer for causing their cancers.

Monsanto's appeal was rejected by a three-judge panel of the U.S. 9th Circuit Court of Appeals and supported the verdict of $20 million in punitive damages.

In 2019, a jury awarded the plaintiff $80 million that included $75 million in punitive damages and $5.3 million in compensation for illness. Later, on July 15, 2019, the amount was reduced to $25.3 million, which included $20 million as punitive damages. The jury informed that punitive damages were necessary as Monsanto failed to warn the users about the side effects of its product.

Monsanto tried to overturn the punitive damages award by stating that it was unaware in 2012 that glyphosate caused cancer. Arguing Monsanto's claim, the 9th Circuit dismissed it by stating that various independent scientific studies were released by 2012 that claimed glyphosate causes cancer. The court even mentioned that the company was aware of the potential health risks which were listed on the internal emails by Monsanto toxicologists.

The plaintiff stated that he used Roundup from 1980 to 2012 on his Sonoma County property that caused his disease. Monsanto argued that the plaintiff's non-Hodgkin’s lymphoma might have caused due to his hepatitis C or it can be among the 70% of cases that occur due to unknown reasons.

The court stated that Monsanto's intentional failure to fully access Roundup’s safety and downplaying the safety and health measures of its users make the company liable to pay the punitive damages. The three-judge panel informed that the evidence provided in the plaintiff's case of 2019 has helped the court to decide on awarding punitive damages. The court even informed that other Roundup trials might have different outcomes considering the facts provided in the suits.

Roundup is widely used by both farmers and households throughout the world. Bayer acquired Monsanto in 2019 and paid more than $12 billion to resolve the legal claims against the company.

3M Earplug's Second Bellwether Trial Begins

A second bellwether trial of 3M Combat Arms earplugs commenced on May 17 in the U.S. District Court for the Northern District of Florida post the earlier $7.1 million verdict in the first bellwether trial.

Currently, 3M faces more than 230,000 product liability claims in the federal court system. All the claims are from the military veterans who served between 2003 and 2015. The veterans claim that the manufacturing defect of 3M earplugs resulted in hearing damage for them.

The reversible design of the earplugs blocked all sound when inserted one way and provided selective filtering when reversed. However, veterans alleged that they developed tinnitus, hearing loss, and other ear damage due to the defective design of the product that misfits the ear canal.

Earlier, Judge Rodgers issued a pretrial order which allocated 10 business days for the trial, but the defendants asked for additional time to present their side of the case.

The first bellwether trial ended last month, which ended with a $7.1 million verdict for three veterans. On June 7, the third 3M bellwether trial will begin.

U.S. District Judge Casey Rodgers is overlooking the federal multidistrict litigation (MDL) established in the Northern District of Florida for coordinated discovery and proceedings.

The outcomes of these bellwether trials will not bind to other cases and if 3M fails to defend itself, it could face heavy penalties to resolve the tens of thousands of individual cases across the nation.

Earlier, a federal jury in Florida has issued an order indicating that 3M will pay $ $7.1 million in damages to three military veterans who suffered from hearing loss due to the defective earplugs that the company manufactured.

The trial was identified as a “bellwether” among the 300,000 lawsuits filed throughout the federal court system against 3M.

 The verdict is expected to send shock waves through the financial industry, even though the jury award is yet to be declared.

The earplugs were designed to block all sound when inserted one way and reduce loud impulse sounds while allowing users to hear spoken commands when reversed. The litigations against the company allege that the earplugs are defective and did not seal the ear canal, resulting in permanent hearing loss, tinnitus, and other ear damage to the military veterans.

3M attempted multiple mid-trials to prevent the jury from deliberating a quick verdict in the lawsuit which was rejected by the jury. The jury awarded $2.1 million to each plaintiff in punitive damages. The plaintiffs were even awarded compensatory damages based on medical bills, pain, and suffering.

The Combat Arms Earplugs Version 2 (CAEv2) was manufactured by Aearo Technologies, Inc. before being taken over by 3M in 2008. The dual-ended 3M CAEv2 combat earplugs served as a standard form of military hearing protection in foreign conflicts for more than a decade, from 2002 to 2016.

The 3M military earplugs are made of green and yellow with a double-ended design. The green end is inserted to block all sound, and insertion of the yellow end reduces the sound of gunfire and explosives but still allowed the service personnel to be part of a conversation.

Elmiron Vision Loss Lawsuits Trial Might Begin In January 2023

The U.S. District Judge has outlined a preliminary plan for coordinated discovery, procedures, and bellwether trials of all federal Elmiron vision loss lawsuits which are expected to go before the jury in January 2023.

Judge Martinotti has established a “bellwether” process to settle potential Elmiron negotiations. The process will focus on preparing a small group of representative claims to go through a discovery process for early test trials in the MDL. The court outlined a preliminary plan on May 13 which will eliminate repetitive discovery, conserve resources and promote fair litigation.

The judge even explained that trial selection and bellwether process are yet to be completed and parties will prepare accordingly to work out a plan with the help of the agreement. The judge also highlighted that the parties must develop bellwether process timeline and comply with it till the motion starts.

It is estimated that several thousand lawsuits will be included in the proceedings in the coming months and years as many Elmiron injury lawyers are still investigating and filing additional vision loss claims.

Currently, the manufacturers of Elmiron face more than 200 product liability claims with similar allegations that the drug causes maculopathy or retinal damage among the users. The manufacturers failed to provide earlier warnings and the importance of monitoring for symptoms of vision changes.

All the Elmiron lawsuits are centralized before U.S. District Judge Brian R. Martinotti in the District of New Jersey for the coordinated discovery of evidence and testimonies.

Federal Judge Uncertain About Bayer's $2B Roundup Settlement

Bayer's $2 billion class-action settlement proposal to resolve future Roundup claims is being strictly scrutinized by a federal judge as it will not help the people who have used Roundup but did not develop cancer.

An $11.6 billion agreement was finalized by the federal court for resolving Roundup lawsuits from about 125,000 consumers and farmers in the U.S. and a $2 billion settlement is a part of it. Earlier, a federal judge in Los Angeles rejected the appeal of $650 million for hundreds of U.S. cities, counties, and ports suing over toxic PCB contamination from Bayer and lawyers representing plaintiffs.

U.S. District Judge Vince Chhabria stated that two types of Roundup users would be covered under the settlement. The first category of class one will include users who are diagnosed with non-Hodgkin lymphoma but have not retained a lawyer. The class two category covers healthy people who are exposed to the weedkiller.

The $2 billion settlement would be identified under the class one category. The judge debated about his plan concerning healthy Roundup users who fall under the class two category as they will not understand the settlement proposal.

Roundup users can opt out in the coming months if the settlement gets preliminary approval and can still hold the full legal rights. If the users develop non-Hodgkin lymphoma during the four-year agreement period, they would get a free medical checkup.

The judge stated that a warning label from the company about the product will prevent further lawsuits. The judge even informed that if this huge settlement is addressed meaningfully then it will also help to resolve minor claims pending against Roundup.

Judge Chhabria stated while the hearing that he is mainly concerned about the people who are exposed to Roundup but have not yet been diagnosed with Non-Hodgkin lymphoma. The judge even raised concern over the medical monitoring program.

Bayer acquired Monsanto in 2018 and since has been resolving the ever-increasing lawsuits of Roundup.