What Happened In The MassTorts World Last Week? 2019-Sep-16

Opioid MDL: U.K.-Based Pharmaceutical Co. To Pay $24M

On Friday 6, Mallinckrodt, a U.K. based pharmaceutical company, said that it would pay $24 million and donate up to $6 million in generic drugs to two Ohio counties to resolve their claims in the upcoming October 21 trial over the opioid crisis.

The drugmaker said the settlement was announced in principle with Cuyahoga and Summit counties over the allegations that the defendants fueled the opioid epidemic with a breakneck sales of painkillers and by underplaying the drugs' addiction risks. Both the counties will get much-needed support in the ongoing response to the opioid crisis as well as will get protection in any future insolvency proceeding by Mallinckrodt if the agreement is approved.

U.S. District Judge Dan Aaron Polster overseeing the opioid multidistrict litigation said that "a jury will decide whether, under Ohio law, the opioid epidemic constitutes an "ongoing public nuisance," finding that underlying factual issues must first be determined at trial."

Cuyahoga and Summit counties, seeking several billion dollars to cope with the opioid epidemic's effects, had asked the court to award them partial summary judgment arguing that no reasonable fact-finder could determine the underlying factual issues. However, the motion was denied by Judge Polster on September 4, stating that it was a question that must wait till the full airing of facts at trial.

J&J's Effort To Avoid A Punitive Damages Trial Denied

Johnson & Johnson's (J&J) effort to avoid a Risperdal punitive damages trial has been denied by Philadelphia County Court of Common Pleas Judge Arnold L New.

The plaintiff had already won $1.75 million in 2015 over his claims against the pharmaceutical giant for causing him to develop gynecomastia, an undesired growth of breast tissue in males,  after using the antipsychotic drug. The court records indicate that the plaintiff began taking Risperdal as a 9-year-old in 2003 to treat symptoms of autism, although the drug was prescribed for adults at that time. The plaintiff alleged that J&J unit Janssen Pharmaceuticals Inc. knew about the potential risks but disregarded the dangers.

This lawsuit was one of the first to go to trial in the Philadelphia County Court of Common Pleas as part of a mass tort program. During the initial verdict, a global order in the Risperdal mass tort program barred punitive damages. In mid-August, the plaintiff urged the judge that under Maryland law, one can recover punitive damages if they can show that a defendant knew about the danger and yet disregarded the potential harm to others. However, J&J argued over the punitive damages stating the exact evidence that the plaintiff maintained has been rejected by Maryland courts as insufficient.

The new punitive damages trial will begin on Sept. 16 in a Philadelphia courtroom.

Purdue's Bankruptcy Protection May Affect Opioid Plaintiffs

An email was sent across on Saturday by two state attorneys general, Tennessee Republican Herbert Slatery and North Carolina Democrat Josh Stein, who are directly involved in the negotiations with the maker of OxyContin and the Sackler family, stating that they expect Purdue to file for bankruptcy protection imminently.

Billions of dollars have been sought from Purdue Pharma by state and local governments as a way to confine the company and the family that owns it accountable for the nation’s opioid epidemic. The potential payout now seems to be messier after state attorneys general said settlement talks had broken down.

The bankruptcy would likely take Purdue out of the first federal trial over the opioid crisis, scheduled to start Oct. 21. Purdue said that it wants to make a settlement deal to resolve all state and local government claims against it but has recently indicated to file for bankruptcy protection, which would make a major shift in multidistrict litigation.

Earlier, on July 8, 2019, Oklahoma District Judge Thad Balkman denied Johnson & Johnson's (J&J) request to dismiss the opioid lawsuit due to lack of evidence.

A motion was filed last week by J&J to seek dismissal of the lawsuit claiming that the state failed to produce enough evidence to support its case. Both the parties were given an hour before the decision was rendered. J&J's lawyers said the nuisance law in the state did not apply, while the attorneys representing the state said that the defendants and their attorneys acted in a reprehensible manner.

According to Judge Balkman, the trial that began seven weeks ago, should continue and is expected to go on until late this month. Considering the evidence presented by the State, the judge determined there is sufficient evidence against the defendants, hence denied the motion for directed judgment.

Opioid lawsuits are consolidated under MDL No. 2804 (In Re: National Prescription Opiate Litigation) which is presided by U.S. District Judge Dan Polster.

23 States To Support Purdue's Opioid Settlement Deal

Twenty-three states and three territories have agreed to Purdue Pharma's multibillion-dollar settlement deal over the claims that the drugmaker illegally marketed opioid painkillers.

According to the current proposal, the OxyContin maker and its owners, the Sackler family would guarantee to pay $3 billion and file for bankruptcy, cede itself over to a trust controlled by the states, cities, and counties that have sued and sell its U.K.-based drugmaker Mundipharma. The settlement has been valued between $10 billion and $12 billion, however more of which would rely on future sales of its signature painkiller and the development of drugs to treat opioid addiction.

The defendants, facing around 2,500 lawsuits brought by every state as well as cities, counties, Native American tribes, and others, have stated that they are continually working with all the plaintiffs to reach a comprehensive resolution that would deliver billions of dollars and vital opioid overdose rescue medicines to communities across the country. The company is also negotiating separately with the U.S. Justice Department to resolve criminal and civil probes.

The agreement is being opposed by several large states, who could fight against the attempts by Purdue to approve the deal in a bankruptcy proceeding.

The deal was proposed at a confidential meeting held in Cleveland on August 20 by the company's lawyers. The meeting included 10 state attorneys and the plaintiff's attorneys. David Sackler was the spokesperson for Purdue and represented the Sackler family. It is alleged that Purdue is one of the major drugmakers that fuelled the opioid epidemic in the United States. 400,000 people died between 1999 to 2017 due to the epidemic as per the U.S. Centers for Disease Control and Prevention.

Federal Judge Approves 3M Earplugs Single Track Litigation

U.S. District Judge Casey Rodgers rejected the two-track litigation proposal, allowing all class action lawsuits and individual personal injury claims involving the 3M Earplugs to proceed on a single litigation track.

A motion was filed by class action lawyers for two-track litigation in May, arguing that a separate plaintiffs’ leadership structure was necessary considering the significant differences between the individual military earplugs lawsuits and class action cases.

According to an order issued on September 3, judge Rodgers stated the proposal to be premature at this time, however, did not rule out establishing a two-track proceeding in the future. The order further states that, "Once the first phase of discovery is complete, the Court will entertain dispositive motions on the federal defenses, if any. If the litigation survives summary judgment on the federal defenses, it may then become appropriate to consider establishing a separate class action track. At this stage, however, the interests of the individual and putative class claimants are the same."

All 3M Earplugs injury lawsuits are filed under MDL No. 2885 (In Re: 3M Combat Arms Earplug Litigation) in the Northern District of Florida against Minnesota-based 3M.

According to a court report dated June 19, there are nearly 1,000 product liability lawsuits filed over hearing loss from 3M earplugs.

The complaints raise similar allegations, claiming that 3M company knew that the U.S. military dual-ended earplugs were defective and failed to provide adequate hearing protection. It was a standard military issue for all service members who served between 2003 and 2015. The lawsuits are expected to rise in numbers due to the increasing reports of hearing loss, tinnitus and other hearing damage following the usage of earplugs.

A “Science Day” has been scheduled for late August by the presiding judge, as part of the coordinated pretrial proceedings. Parties will make non-adversarial presentations to educate the court about the link between 3M earplugs and hearing loss on the science day. 3M reached a $9.1 million settlement with the Department of Justice, resolving claims that it defrauded the government by knowingly selling defective earplugs in July 2018.

U.S. District Judge M. Casey Rodgers is presiding over all injury lawsuits filed under MDL No. 2885 (In Re: 3M Combat Arms Earplug Litigation) in the Northern District of Florida against Minnesota-based 3M.

Multiple Plaintiffs Win $37.3M Talc Verdict Against J&J

A six-member New Jersey state court jury awarded $37.3 million to four plaintiffs who developed mesothelioma from inhaling asbestos allegedly present in Johnson & Johnson’s (J&J) cosmetic talc products.

Judge Ana Viscomi, presiding over all New Jersey’s asbestos docket, struck the closing argument by J&J's attorney for making derogatory comments about the plaintiffs' attorney which led to deliberations. The defendant's attorney immediately moved for a mistrial.

This is the fourth J&J cosmetic talc case to go to trial in New Jersey. The jurors awarded $7.25 million to the first couple, $9.45 million to the second couple, $14.7 million to a plaintiff, and $5.9 million to the third couple. The date for the second phase of the trial to determine punitive damages will be set sometime later in the Fall.

Currently, two mesothelioma-related trials are in progress in California state court in Los Angeles. Also, in Georgia state court in Atlanta, jury selection is underway in the state’s first cosmetic talc trial and ovarian cancer case since a trial last year in Missouri, which ended in a $4.7 billion verdict.

Earlier, Union Carbide Corp. was awarded a summary judgement by the Delaware trial court. The company cleared its stand in the asbestos case by saying that it relied on Georgia-Pacific to warn the end-users of its joint compound products. This resulted in the jury ruling the judgement in the company's favour. 

In 1929, a woman filed the country's first asbestos lawsuit in Newark (NJ) Federal Court. 15 other individuals were trying to get compensation for the asbestos-related claims. In 1934, the woman's lawsuit was disqualified, but many such lawsuits were filed following the occurrence. Johns-Manville Corporation was one of the biggest companies that were targeted by these lawsuits. The company filed for bankruptcy in 1982.