What Happened In The MassTorts World Last Week? 2019-Jul-29

J&J Faces Denial On Talc Lawsuit Transfer Request To Del.

On July 19, Johnson & Johnson’s request to transfer 2,400 Talc lawsuits to a district court in Delaware was denied by federal Judge Maryellen Noreika thereby sending the cases back to state courts stating the company failed to prove that the case was "related to" its talc supplier's bankruptcy case.

The lawsuits against J&J allege that the baby powder contains asbestos which caused ovarian and other cancers. J&J asked to transfer the lawsuits to Delaware after its talc supplier Imerys Inc., facing lawsuits of its own, sought Chapter 11 protection in Delaware earlier this year.

Judge Noreika ruled that Delaware federal court does not have authority over the lawsuits against the company as J&J’s talc supplier, Imerys Talc, filed for bankruptcy in the court of Delaware. The judge also stated that the claims could be heard in a better way by the state court judges handling the cases than in Delaware court, where thousands of cases would have to be heard and different state laws would have to be applied to each.

Recently, the U.S. Department of Justice charged the pharmaceutical giant J&J with a criminal probe, stating that the company knew about problems with asbestos in talcum powder products, as well as its health risk to consumers, yet failed to provide any warning.

So far, mixed results have been delivered by state courts on lawsuits against J&J. Talc defendants currently face nearly 14,000 Talcum Powder and Shower-to-Shower lawsuits, consolidated under multidistrict litigation (MDL No. 2738; In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation), in the District of New Jersey. The MDL is presided by Hon. Freda L. Wolfson, U.S.D.J., and Hon. Lois H. Goodman, U.S.M.J.

Dismissed Risperdal Gynecomastia Lawsuit Reinstated

A 2013 Risperdal lawsuit, filed by a man and his mother against Johnson & Johnson (J&J) and its subsidiary Janssen Pharmaceuticals for failing to provide adequate warnings regarding Risperdal’s potential to cause gynecomastia, which was dismissed in 2016, has been reinstated.

According to court documents, the man started using Risperdal in 2004 at the age of 7 and continued using the powerful antipsychotic medication until he was 10 years old. While on Risperdal, he developed female-like breasts, a condition known as gynecomastia. The lawsuit was later dismissed under Texas law by Judge Sean F. Kennedy, stating plaintiffs’ expert witness provided insufficient testimony against Risperdal.

On Tuesday, a 3-judge-panel of the Pennsylvania Superior Court ruled that the case should be evaluated under Pennsylvania law since it was procedural, thereby remanded the case back to Philadelphia and ordered a new trial.

In May, the Pennsylvania Supreme Court examined the level of public awareness regarding the dangers of Risperdal, which can put potential plaintiffs on notice to investigate their claims.

Nearly 7,000 gynecomastia lawsuits are pending in the Pennsylvania mass tort program. Two coordinated actions have been filed for Risperdal cases: one in Los Angeles Superior Court (Risperdal and Invega Product Liability Cases, JCCP 4775, presided by Honorable William Highberger) and the other in Philadelphia (In Re: Risperdal Litigation, March 2010 Term, Case No. 100300296).

Louisiana, A New Entrant Joins The Opioid MDL

Louisiana is now putting efforts to redirect all the lawsuits against opioid manufacturers into the MDL to join more than 2,000 other lawsuits from states, cities, and school districts.

According to Jacques Ambers, special assistant to Louisiana Attorney General Jeff Landry, Landry was working collaboratively with the governor’s office against the opioid crisis but now will redirect his efforts into the MDL.

The state saw a rise in opioid overdoses, and the Louisiana Department of Health reported that there have been 401 deaths statewide in 2017, a rise from 217 in 2014. The crisis drained nearly $300 million from state coffers annually, which was used for incarceration, social services, health care, schools, and lost productivity.

Last month, plaintiffs filed a motion seeking certification for a negotiation class, a new structure that will be representing all 24,500 cities and counties in the U.S. as part of an opioid settlement.

U.S. District Judge Dan Polster is presiding over all opioid lawsuits consolidated under MDL No. 2804 (In Re: National Prescription Opiate Litigation).

Bayer Requests To Reduce $2B Roundup Verdict

Bayer requested U.S. District Judge Winifred Y. Smith to reduce the $2 billion Roundup verdict, awarded to a couple, stating that they failed to prove Roundup was the cause of their cancer due to lack of supporting evidence.

On May 13, the plaintiffs were awarded more than $2 billion by the Oakland jury after finding that they were diagnosed with non-Hodgkin lymphoma by using Roundup weedkiller in their property from 1975 to 2011. The jury awarded $18 million in compensatory damages and $1 billion in punitive damages to the husband and $37 million in compensatory and $1 billion in punitive to his wife.

Bayer, in its court filings, stated that punitive damages were excessive and requested Judge Smith to reduce the award. The punitive damages award was high as per the U.S. Supreme court rulings that limit the ratio of punitive to compensatory damages to 9:1.

In a separate case, a U.S. judge slashed the Roundup verdict awarded to a California man who blamed Roundup for his cancer, from $80 million to $25 million last week as the punitive damages component awarded was unreasonably high.

Last month, Austria headed towards the ban of Roundup and other glyphosate weed killers due to the growing concerns that exposure to the popular herbicide might be linked to cancer.

Bayer and its subsidiary, Monsanto, acquired a year ago, now face more than 15,000 Roundup lawsuits. U.S. District Judge Vince Chhabria is presiding over all the federal multidistrict litigation (MDL No. 2741; In Re: Roundup Products Liability Litigation) in the Northern District of California.

Daubert Hearing Over J&J's Talc Lawsuit

A Daubert hearing began on Monday in the multidistrict litigation over Johnson & Johnson’s (J&J) talcum based baby powder, claimed of causing ovarian cancer and mesothelioma.

The process aims to ensure that expert witness testimonies are based on sound science. U.S. District Judge Freda Wolfson will hear from eight witnesses, five from the plaintiffs and three from J&J. During the hearing, one witness will testify per day, taking the hearing to the end of this month. Studies and other evidence submitted by the legal teams will also be reviewed. The lawsuits would either be dismissed or would proceed to trial depending upon the outcome of the hearing. The decision on evidence and witnesses can also be appealed, which would delay the overall trial proceedings.

There are nearly 14,000 Talcum Powder and Shower-to-Shower lawsuits. Lawsuits are consolidated under multidistrict litigation MDL No. 2738; In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation. Lawsuits are also pending in a coordinated California proceeding under Judicial Council Coordinated Proceeding No. 4877.

Status Conference Held For Bard Hernia Mesh Lawsuits

An in-person status conference was convened by the Southern District Court of Ohio on June 25, with counsel for PSC and counsel for defendants, to discuss various matters on the Bard Hernia Mesh lawsuits.

According to a Pretrial Order issued on June 27, post the conference, the discussion included the status of discovery and an update on pleadings. The defendants’ proposal for a case management order on highly confidential documents and protected health information has been approved by the court.

The next status conference has been scheduled for July 30, 2019, at 10:00 A.M.

Last month, the U.S. District Court of the Southern District of Ohio established protocols governing the examination and division of pathology specimens submitted for bellwether trial pool cases. The protocol was intended to ensure that any specimens not previously tested are preserved in a manner that parties can have equal access to the materials.

There are more than 2,700 cases against Bard hernia mesh, undergoing coordinated pretrial proceedings in the U.S. District Court, Southern District of Ohio consolidated under MDL No. 2846. Similar allegations have been raised against Ethicon hernia mesh consolidated under MDL No. 2327 and Atrium C-Qur mesh consolidated under MDL No. 2753.

$2B Roundup Verdict Slashed To $87M

On Thursday, a California state judge reduced a couple's $2.055 billion jury verdict to $86.7 million in one of the cases that went to trial over Monsanto's Roundup lawsuit.

The initial verdict was given by a jury of five women and seven men in California in favor of a couple who was diagnosed with non-Hodgkin’s lymphoma on May 13. Bayer had requested U.S. District Judge Winifred Y. Smith to reduce the $2 billion Roundup verdict stating that the plaintiffs failed to prove Roundup was the cause of their cancers due to lack of supporting evidence.

Judge Smith ruled the jury’s billion-dollar punitive damages awards as unconstitutionally large but rejected Bayer’s request to strike it out completely. She reduced the punitive award of $2 billion to around $69 million, and the compensatory damages were cut to roughly $17 million from $55 million. She also approved Monsanto's bid for a new trial, unless the couple agrees to accept the recent verdict. In a statement, Bayer said it still has plans to appeal on multiple grounds.

Recently, U.S. District Judge Vince Chhabria reduced an $80M Roundup verdict to $25 million against Bayer after finding that the punitive damages component of $75 million awarded to a plaintiff was unreasonably high.

There are more than 15,000 Roundup lawsuits consolidated under multidistrict litigation (MDL No. 2741; In Re: Roundup Products Liability Litigation) in the Northern District of California, presided by U.S. District Judge Vince Chhabria.