Weekly Mass Torts Bulletin 2022-July-25

Impax To Pay $145M In Opioid Antitrust Suit

On Tuesday, Impax Laboratories said that it has reached an agreement to pay $145 million to settle antitrust class actions alleging that the pharmaceutical company conspired unlawfully with Endo International Plc to postpone the release of a generic version of its Opana ER opioid medication.

Just a few weeks after a jury in a federal court in Chicago dismissed accusations that Endo had broken federal antitrust laws, the parties reached a deal to resolve the claims made by plaintiff medication wholesalers Value Drug Co and Meijer Inc.

As the trial was about to begin, Impax, which had been a defendant, negotiated an agreement in principle but withheld the details of the settlement. A judge of the U.S. District Court in Chicago will examine the preliminary agreement.

In their Tuesday filing asking the court to approve the settlement, the plaintiffs' lawyers said that class members would get sizeable cash compensation while the case against Impax was put to rest and avoided the inherent hazards of jury trials and any appeals.

A message requesting comment received no immediate response from the lead class counsel. Even a spokesperson from Impax, which is now controlled by the New Jersey-based Amneal Pharmaceuticals Inc., and the company's attorney, Devora Allon of Kirkland & Ellis, did not immediately reply to requests for comment.

Impax has kept up its denial of the plaintiffs' claims and refused to accept responsibility as part of the settlement. The legal dispute started in 2014, and the judge last year recognized classes of health insurers, direct buyers like Value Drug, and distributors that paid for or reimbursed the cost of branded or generic versions of Opana ER.

According to the plaintiffs, Impax and Endo agreed in a 2010 agreement to postpone the introduction of generic Opana ER on the market, and Endo promised it would not approve a competing generic until 180 days after Impax's medicine entered the market.

The U.S. Federal Trade Commission filed antitrust complaints against Endo and Impax in 2021, but a U.S. District Judge dismissed the complaints in March. According to the complaint, a 2017 agreement between the businesses unjustly restrained their ability to compete with one another.

The U.S. Court of Appeals for the D.C. Circuit is now hearing the FTC's appeal. In the Chicago case, the plaintiffs declared they would want up to $58 million in legal expenses as part of the settlement, or up to 40% of the settlement money.

Federal Court Blocks Monsanto's Roundup Appeal

An important victory for the thousands of people who contracted cancer after being exposed to Monsanto's Roundup herbicide was achieved on Tuesday when a federal appellate court blocked Monsanto's most recent attempt to have legitimate state court lawsuits dismissed and the claims transferred to federal court.

Other claims against Bayer and its Monsanto subsidiary also have clarity due to the decision. It also means that a Georgia man who was diagnosed with fibrous histiocytoma after using Roundup on his lawn for 30 years can ask a Georgia jury to consider Monsanto's track record of neglecting to inform customers about the risks associated with their glyphosate-based herbicide.

The ruling rejecting Monsanto's claim that these failure-to-warn claims could only be filed in federal courts was written by a senior U.S. Circuit Court Judge. The court ruled that the U.S. Environmental Protection Agency's (EPA) initial safety determinations, which led to the approval of Monsanto's proposed label and the registration of Roundup for sale, lack the legal weight required for such federal preemption, particularly in light of the fact that pesticide manufacturers are constantly required to follow federal labeling regulations and to notify the EPA of any new adverse effects.

In the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) context, the opinion notes that Congress provided broad latitude for state regulation, allowing a state to regulate the use of any federally registered pesticide or device as long as the regulation does not permit any sale or use forbidden by FIFRA. A state agency may also prohibit the sale of a pesticide if it subsequently determines that one of the applications listed on the label is dangerous.

The Dallas-based trial lawyer, whose firm is defending more than 5,000 cancer patients in a lawsuit against Monsanto, claimed that the 11th Circuit saw right through Monsanto's attempts to escape responsibility for its hazardous product and its long history of refusing to label Roundup with a straightforward warning.

Three federal bellwether trials that found exposure to the herbicide in Roundup to be the cause of cancer resulted in multimillion dollar damages. The judgments stood up to appeal, including a $25 million judgement that Bayer appealed all the way to the Supreme Court of the United States.

CT Gets Initial Payment Of $11M From Opioid Settlement

A $26 billion multistate opioid settlement with Johnson & Johnson and medication distributors AmerisourceBergen, Cardinal Health, and McKesson has already paid Connecticut its first installment of $11 million.

For their contributions to the opioid crisis, the four firms were sued. As part of the settlement struck in February, Connecticut would get $300 million over the following 18 years. On Monday, the first payment was announced in Waterbury by the attorney general of Connecticut. State authorities and parents who had lost children to the drug scourge accompanied him.

A lady who lost her son five years ago stated that she would want to see the settlement funds go toward drug awareness programs. She claimed that young people in particular need to be aware that merely one tablet can be fatal due to the rising use of fentanyl.

People can no longer experiment with drugs, the woman claimed, thus more must be done to spread that message. She further added that we need to get kids young because using drugs is like playing Russian roulette, and we're seeing it more and more frequently.

While some of the settlement money should go toward education, another parent who is mourning the loss of two sons to drug addiction noted that it should also help the families of the victims. The parent said that it would be preferable if the cash were distributed to the families because they had essentially lost all of their 401(k) plan savings while attempting to enlist the aid of their children.

Legally, the settlement funds will go to cities and towns since that's where the treatment programs are, according to the attorney general who defended Connecticut in the lawsuit. He clarified that this isn't just about the money and these cases, they're about families and doing justice, not just about resources and financing.

At Waterbury Fire Department Station 10, where emergency personnel is dispatched to deal with overdoses, the attorney general made the settlement payout announcement. According to the mayor of Waterbury, the department gave Narcan, an opioid emergency treatment, 870 times last year.

The mayor noted that while it is awful to hear about someone passing away from an opioid overdose every day, I genuinely believe that today marks a turning point in our ability to secure the money required to continue this fight.

The initial $11 million payment will result in a payout of $73,281 to Waterbury. A portion of the money will support a municipal initiative that sends technicians to overdoses.

Opioid Lawsuit Decision Appealed By West Virginia Officials

A historic lawsuit accusing three major U.S. drug distributors of distributing 81 million pills over eight years and sparking an opioid crisis is being appealed by county officials in West Virginia.

The July 4 decision was unanimously approved by the Cabell County Commission on Thursday, and Huntington Mayor even announced the city intends to appeal.

In the action brought by Cabell County and the city of Huntington against AmerisourceBergen Drug Co., Cardinal Health Inc., and McKesson Corp., the judgment was rendered about a year after closing arguments in a bench trial.

The district attorney for Cabell County had argued that the distributors should be held accountable for dispersing a "tsunami" of prescription painkillers into the neighborhood and that the defendants' actions were irrational, careless, and disregardful of the public's health and safety in a region beset by opioid addiction.

The pharmaceutical industry put the blame on an increase in doctor-written prescriptions, poor communication, and pill quotas established by government officials.

Although it was claimed in the case that the distributors caused a public nuisance, the court determined that West Virginia's Supreme Court has only ever applied the doctrine of public nuisances in situations when activity endangers public resources or property. It "is incongruous with the historical and established conceptions of annoyance," he claimed, to extend the statute to embrace the promotion and sale of opiates.

The county commissioner said that they were left holding the bag as a result of the opioid problem, and we believe that we must move forward and collaborate with the city in an effort to appeal this ruling. The vote was praised by the mayor, who also pledged that the city would not give up. The truth is that over 800 individuals have died from overdoses in Cabell County during the past five years. The people who attacked our neighborhood must be held accountable by the authorities. The trial's outcome has left the authorities extremely dissatisfied, yet they remain even more motivated than before.