What Happened In The MassTorts World Last Week? 2018-Nov-26

Jury Awards $30.2 Million To a Mesothelioma Victim

On November 13, a California jury awarded $30.2 million to a former construction worker who was diagnosed with mesothelioma, a rare form of cancer caused due to asbestos exposure, holding defendant J-M Manufacturing 45% liable for the disease.

The California Superior Court for Los Angeles County jury found that the defendant acted with negligence in warning the plaintiff about the hazards of asbestos-containing transite pipe. Judge Maurice A. The plaintiff was $1 million in economic damages, $13.2 million for the pain and suffering; while his wife was awarded $1 million for loss of consortium, and $15.2 million in compensatory damages. Apart from JMM, the liability was split among several other entities who were responsible for the plainitff's asbestos exposure. During the three-week trial, the jury discovered that the transite pipe sold by the company was unsafe and the plaintiff was regularly exposed to asbestos while supervising workers who cut and beveled the transite pipe.

Asbestos is a combination of six silicate minerals, which existed for 4,000 years in silent form until manufacturers and builders discovered its unique properties and started using it as electrical insulation and building insulation. Asbestos usage has shown an undaunted increase ever since.

Unlimited and heavy exposure to Asbestos by workers and laborers involved in the construction industry, repairs of ships, specifically, during the removal of asbestos materials while renovation, repairs, or demolition face higher risks. Also, workers involved in the manufacturing of asbestos products such as textiles, friction products, insulation, other building materials, automotive brake, and clutch repair work who inhaled and ingested Asbestos, unknowingly or knowingly, are/were at risk.

Family members indirectly exposed to asbestos fibers carried along with the clothes, hair, and skin of their near ones carry equal chances of being affected. Asbestos can lead to mesothelioma, lung cancer, ovarian cancer, and laryngeal cancer.

Reports of asbestos hazards have been around since the 1900s. Hundreds of lawsuits are filed on behalf of individuals who suffered from mesothelioma due to asbestos exposure. Some of the mesothelioma lawsuits also blame talcum manufacturers for hiding asbestos presence in their products.

Monsanto Appeals $78 Million Roundup Cancer Verdict

On November 20, agribusiness giant Monsanto filed a notice of Appeal in San Francisco Superior Court challenging the $78 million verdict in favor of a cancer-stricken California man who blamed the company's Roundup weed killer for his condition.

In August, the plaintiff who was diagnosed with Non-Hodgkin’s lymphoma (NHL) was awarded $289 million by a California jury. The amount was later slashed to $78 million last month by Judge Suzanne Bolanos. During the trial, doctors testified that the plaintiff, who worked as a pest control manager at a San Francisco Bay Area school district, has less than three years to live. Bayer, which acquired Monsanto in June continues to deny glyphosate's (an active Roundup ingredient) involvement in causing NHL. In a statement, Bayer asserted, “we continue to believe that the liability verdict and reduced damage award are not supported by the evidence at trial or the law". The company proclaimed many government regulators have earlier denied the connection between glyphosate and cancer.

Thousands of lawsuits are pending against Monsanto in California, Missouri, and Delaware state courts claiming glyphosate is carcinogenic to humans. Another California resident's case is the next to undergo trial in February 2019. Multidistrict litigation has been formed in the U.S. District Court, Northern District of California, overlooked by Judge Vince Chhabria.

On October 15, an elderly couple who suffered from cancer was granted an expedited trial by the Superior Court Judge Ioana Petrou in Oakland for allegations that glyphosate in Bayer AG's Roundup weed killer was the reason for the deadly disease.

The lawsuit filed on behalf of a California couple who stated that they both regularly used Roundup since 1971. In 2011, the man was diagnosed with a rare form of cancer, non-Hodgkin’s lymphoma (NHL), while his wife got the same disease in 2015. The couple sued Monsanto in 2017 alleging that Roundup was the reason for their cancer. Attorneys representing the couple requested a fast-track trial considering their deteriorating health condition and short life expectancy. The case will head to trial on March 18, 2019, in California.

Roundup, one of the most commonly and widely used weed killers, contains Glyphosate as one of its main ingredients. Glyphosate is a systemic and broad-spectrum herbicide that was patented by a U.S. company, Monsanto, in 1970. Bayer acquired Monsanto on June 7, 2018.

After the patent for Monsanto expired in the U.S. in 2000 and outside the U.S. in 1991, many other manufacturers started marketing their glyphosate products leading to a substantial increase in sales and global usage. The chemical name of glyphosate is N-(phosphonomethyl) glycine, and it blocks an enzyme in the plant, which helps in preparing amino acids and proteins, thus, killing the plants within a few days.

Initially, the users used Roundup as a non-selective herbicide just like paraquat and diquat. People attempted to use glyphosate-based herbicides to row crops, but crop damage problems restricted its use. In 1996 commercial introduction of a glyphosate-resistant soybean resulted in increased use of Roundup throughout the United States. Monsanto's "Roundup Ready" became the best-selling product of the company following the advertisement and the sales increased by around 20% per year between 1990 and 1996.

In 1996, the introduction of a glyphosate-resistant soybean resulted in the growing use of Roundup throughout the United States. Sales of Roundup increased around 20% per year between 1990 and 1996. The product was used in over 160 countries by 2015. It was mostly used on corn, soy, and cotton crops that are genetically designed to resist the chemical. But as of 2012, crops like almond, peach, cantaloupe, onion, cherry, sweet corn, and citrus have been treated by the glyphosate in approximately 5 million acres of California.

This is the second trial against Monsanto company over glyphosate (an active ingredient in Roundup) side-effects. The first trial concluded with a San Francisco Superior Court jury awarding $289 million to a school groundskeeper suffering from NHL. The award was later reduced to $78 million by the jury. Bayer acquired Monsanto which faces about 9,300 glyphosate lawsuits and continues to deny all allegations put on them and plans to appeal the verdict. Individuals affected by Roundup herbicides have filed lawsuits in California, Missouri, and Delaware state courts. Multidistrict litigation has been formed in the U.S. District Court, Northern District of California, overlooked by Judge Vince Chhabria.

A Maryland Judge Dismissed 12 Time-barred BHR Lawsuits

In an order issued on November 19, Judge Catherine Blake of the U.S. District Court for the District of Maryland tossed 12 complaints filed over defects of Smith & Nephew Birmingham Hip Resurfacing system, stating the statute of limitation expired on them. However, the Maryland  Judge allowed remaining cases to undergo the discovery process.

Earlier in June this year, the company sought to dismiss 55 BHR claims as time-barred among the 500 other cases consolidated in the federal MDL. In the lawsuits filed against Smith & Nephew, plaintiffs stated the friction between metal components of the hip system piles up metal debris in the joint and also the bloodstream. These complications often lead to patients resorting to device replacement. About 500 cases are pending in the federal MDL (MDL No.2775; In re: Smith & Nephew Birmingham Hip Resurfacing (BHR) Hip Implant Products Liability Litigation) in the District of Maryland.

Wright Medical Technology, Inc., named as the defendant in a hip implant lawsuit filed by a plaintiff, was granted a partial motion to dismiss a part of the plaintiff's complaint but denied the motion to strike her request for punitive damages and prejudgment interest. The order was released on November 5 and signed by U. S. District Judge Ted Stewart for the District of Utah.

In a response submitted on September 28, 2018, Wright Medical Technology Inc. denied allegations that their Profemur Z hip implant was defectively designed and the company knowingly concealed the health risks associated with the device.

The response filed in the District of Connecticut cited several affirmative defenses and stated that the claims mentioned in the lawsuit are preempted by federal law and also, barred by the learned intermediary doctrine. The case involved claims made by a plaintiff who underwent total hip replacement surgery on March 30, 2005, during which he was implanted with Wright's Profemur device. Wright hip implant multidistrict litigation (MDL 2329) which was created in February 2012, was shut down by U.S. District Judge William Duffey on June 22.

About 28,000 lawsuits have been filed against various hip implant makers accusing defendants Zimmer, Stryker, Biomet, Wright, and Smith & Nephew of hiding the health hazards of the defective hip implants.

Stryker Orthopaedics is known for the development and manufacture of specialty surgical products and other medical supplies for health care around the world. The company has manufactured scores of medical devices and joint replacement products, most of which have been successful; however, some of the hip replacement devices have caused serious adverse events, injuring hundreds of patients.

The Stryker Rejuvenate Modular-Neck Stem and the ABG Modular-Neck Stem hip replacement devices were approved by the Food and Drug Administration (FDA) in 2008 and 2009. These devices are not typical "metal-on-metal" (MoM) as the necks are built of Cobalt and Chromium and the neck stems are layered with Titanium.

Though the intention was to make it corrosion resistant, the two metals rubbed on each other at the connection and released toxic metal ions and debris. Stryker permanently recalled the Rejuvenate Modular and ABG II Modular-Neck Hip Stems in 2012 and stopped all global sales and production of these components. Another hip stem model, the Accolade TMZF, also caused problems and was recalled in 2009, 2011, and 2013.

Most patients with Stryker Rejuvenate and ABG II implants have undergone additional surgery or revision surgeries to remove and replace the implant to repair or reconstruct injured joints, bones, and tissues in addition to the replacement surgery.

Michigan-based Stryker Corporation began as the Orthopedic Frame Company in the 1940s. Over the years the company expanded and now markets 57,000 products worldwide. Its net sales reached $9.9 billion in 2015, and 13 percent of those sales came from hip replacement products, according to the company’s annual report.

In another hip implant litigation, lawsuits continue to be filed involving complications over Stryker Hip Replacement system centralized before U.S. District Judge Indira Talwani under MDL No. 2768 – in Re: Stryker LFIT V40 Femoral Head Products Liability Litigation.