Weekly Mass Torts Bulletin 2021-Sept-13

Federal Judge Denies C.R. Bard’s Pre-verdict Motion

A federal judge has denied C.R. Bard’s pre-verdict motion in the hernia mesh lawsuit, considering the evidence provided by the plaintiffs that highlight the dangers of the product to the patients.

The plaintiff of the first Bard hernia mesh bellwether trial alleges that he experienced adhesions and other health problems after he was implanted with a Bard Ventralight ST mesh. He even claimed that he suffered from painful complications and underwent additional surgery to get the product removed from the body.

Bard filed a motion to dismiss the case after sighting the conclusion of the plaintiff's case. On September 2, the court rejected the motion and ordered to continue the trial.

The claims against the company raise similar allegations that the manufacturer sold dangerous and defective polypropylene hernia repair products namely Bard Ventralight, Bard 3DMax, Bard Perfix, Bard Ventralex and other mesh systems. These products are defective and need additional surgery among the patients to get them removed as per the plaintiffs' claims.

Judge Sargus has scheduled a series of early “bellwether” trials, which began last month. These trials will help the parties to monitor the evidence and testimony in the lawsuits that will facilitate potential hernia mesh settlements.

All the hernia mesh lawsuits are centralized before U.S. District Judge Edmund A. Sargus, Jr. in the Southern District of Ohio, where the company faces more than 8,000 product liability lawsuits.

Earlier, U.S. District Judge Edmund A. Sargus, overseeing the federal multidistrict litigation (MDL) over all hernia mesh lawsuits filed against C.R. Bard, denied the manufacturer's motion for summary judgment in the first bellwether case to completely exclude the plaintiff’s expert witnesses from testifying at trial and to avoid the jury from considering punitive damages in cases involving problems with the Ventralight ST product.

Judge Sargus issued two motions on September 1, denying most of the attempts made by Bard and clearing the way for the case to go for a trial, which is set to begin in January 2021.

According to an evidentiary motions order, the attempt to exclude the plaintiff’s expert witnesses was rejected after determining that most of the expert opinions were based on sufficiently sound science for the jury to consider.

In a separate dispositive motions order, the attempt to prevent punitive damages was rejected, and the plaintiffs were allowed to pursue claims, including those related to design defects, failure to warn, negligent misrepresentation, and breach of implied and express warranty. However, the manufacturer was granted motions for summary judgment over manufacturing defect claims and allegations under the Consumer Sales 

Practices Act, and Judge Sargus also noted that claims related to a subsequent recurrent hernia, and resulting injuries and treatment, could not be pursued.

The lawsuit that will first go before a jury alleges that the plaintiff experienced complications with Bard Ventralight ST mesh, a type of polypropylene patch involved largely in other claims pending in the litigation. The trial, which was originally scheduled to begin in May 2020, has been pushed back from September 2020 to January 2021 due to the interruptions caused by the ongoing COVID-19 pandemic crisis.

Currently, C.R. Bard faces more than 8,000 product liability lawsuits over hernia mesh products, which include Bard’s Ventralex, Ventralight, Perfix, 3DMax, and other patch designs. Bard hernia mesh claims are consolidated under federal multidistrict litigation (MDL) No. 2846 in the Southern District of Ohio, presided by Honorable Edmund A. Sargus, Jr., and Honorable Kimberly A. Jolson.

Up To $3 Million Deal For Orange County In Opioid Crisis

Johnson & Johnson (J&J) will pay a partial settlement of around $1.3 million to $3 million to Orange County for fueling the opioid epidemic that resulted in several deaths due to opioid addiction.

The officials representing the county said that the final settlement amount would depend on the number of counties accepting the agreement. The amount will be higher if the maximum number of counties sign the agreement.

J&J will make the first payment in the settlement in February. The funds would be used to tackle the opioid addiction in the county. It will even fund the opioid treatment programmes and support services that are designed to help the people struggling with addiction problems.

The spokesperson for Orange County said that the opioid manufacturers and distributors were aware of the addictive qualities of the drugs, yet marketed and sold them for profits. The settlement would not bring back the lost lives, but it will surely give some sigh of relief to the affected people and their families.

Orange County witnessed a 25% growth as compared to last year in the death rate due to opioid overdose. Last year, opioid overdose resulted in over 70,000 deaths in the U.S. To date, 500,000 deaths are linked to opioid overdose in the country.

Earlier, a federal judge has approved the bankruptcy plan from the Sackler family, which will dissolve the OxyContin maker Purdue Pharma and pay the settlement of $4.5 billion for the opioid crisis fueled by the company across the country.

The settlement plan will free the drugmaker from all the future opioid lawsuits. The company will be reorganized with new board members appointed by the public officials. The profits earned by the company will be used to prevent and treat opioid addiction among the masses in the country.

It's been three years since the company filed for bankruptcy due to the 3,000 lawsuits filed against it. The lawsuits were filed by states, local governments, Native American tribes, hospitals, unions and other entities with accusations that the company fraudulently marketed the drug to increase sales and profit.

The settlement would not affect the Sackler family's fortune, but the opioid crisis has damaged the reputation of the family. Many states and the U.S. bankruptcy trustee opposed the settlement and indicated that they would appeal against the decision.

This is not the first time that the company will pay such a penalty. Earlier, in 2007, the company was charged under misled regulators and addiction dangers of OxyContin when Purdue paid $600 million.

The opioid crisis has resulted in more than 500,000 deaths in the U.S. Last year, the data recorded 70,000 deaths due to opioids.

Oregon and Arizona also signed the $26 billion nationwide opioid settlement agreement, which will be paid by the three major pharmaceutical distributors and Johnson and Johnson (J&J).

As per the agreement, Oregon will receive up to $332 million over the next 18 years and Arizona will get $549 million for opioid treatment and prevention of future opioid crisis. The final settlement amount for both the states will depend on the participation of cities and counties in the agreement.

The settlement will give some relief to the opioid affected families and individuals of the state. The amount would be used to prevent future opioid crisis and implement awareness programs to educate people about opioid side effects. It will also be used to treat the affected individuals who are suffering from life-altering effects due to opioid addiction.

Arizona declared a public health emergency in 2017 as the number of opioid-related deaths increased by 75% over five years. In 2020, the death rate due to opioids in Arizona increased to 33% more than the previous year, as 2,600 residents died because of the overdose. The death rate due to opioids decreased in Oregon between 2006 and 2018, but the state saw 462 deaths in 2020 as compared to 280 in 2019 due to opioid overdose.

The agreement guides the drug distributors and J&J to stop selling opioids and highlight suspicious opioid orders instantly for preventing illicit opioid activities.

On the other hand, Nevada rejected the nationwide opioid settlement of $26 billion, which would be paid by the three major pharmaceutical distributors, along with Johnson & Johnson (J&J).

Many states have agreed with the $26 billion agreement, but some states, including Nevada, Alabama, New Mexico, Oklahoma, Washington and West Virginia, rejected the proposal and would seek separate compensation.

Attorney General Aaron Ford said that as per the agreement, Nevada would have received $282 million over the next 18 years as compensation for the opioid crisis in the state. He further added that the compensation is inadequate and also provided data stating that Nevada witnessed a 40% increase in opioid deaths in 2020 as compared to 2019.

Ford said that Nevada is the hardest-hit state in the U.S. because of the opioid crisis, and he will make sure to get proper compensation for the epidemic. The rejection of the deal is supported by the Clark, Douglas, Humboldt, Mineral and Washoe counties, along with North Las Vegas, Sparks and West Wendover cities of Nevada.

The states still have a period of one month to sign the month, whereas the local governments have five months to accept the proposal. Forty-four states have participated in the agreement, which is a wonderful support to the deal as per the companies.

J&J will pay $5 billion, and the distributors, namely McKesson Corp., AmerisourceBergen Corp. and Cardinal Health Inc., will pay $21 billion of the settlement.

Attorney General Andrew J. Bruck of New Jersey announced that the state is looking forward to join the opioid settlement agreements against Johnson & Johnson (J&J) and the three largest opioid distributors McKesson, Cardinal Health, and AmerisourceBergen.

As per the settlement agreement, New Jersey could receive over $600 million from the $26 billion nationwide settlement, which will be paid by the opioid manufacturing companies.

States can decide about their participation in the agreement by August 21, 2021. Companies can decide to enter the agreement by September 4, and counties and municipal governments have to confirm their participation by January 2, 2022.

As per the settlement, J&J will pay up to $5 billion over ten years, and distributors will collectively pay up to $21 billion over 18 years. The agreement even guides that a major part of the settlement will be used for the treatment of opioid addicts and the prevention of further opioid crisis.

The agreement even orders the companies to stop selling opioids and restrict the marketing of the drugs. It even ordered J&J to provide clinical data about opioids.

The attorney general said that the opioid crisis has devastated many New Jersey families and has been a matter of concern throughout the U.S. for the past decade. He added that no amount could compensate for the lost lives and affected families, but the settlement will surely help the state and the nation to prevent the further opioid crisis.