What Happened In The MassTorts World Last Week? 2020-Dec-21

Bard’s 'Lifesaving' Assertion Over Hernia Mesh Barred

Earlier this month, U.S. District Judge Edmund A. Sargus Jr., presiding over C.R. Bard Inc.'s hernia mesh lawsuits, ruled that the manufacturer cannot present its Ventralight ST device as "lifesaving" during the upcoming bellwether trial.

According to the ruling on four motions in limine, the judge noted that the federal courts permitted 'lifesaving' characterizations if there was some evidence in the record to support the label. However, no such evidence was pointed by the defendants, and the court will relook at the ruling if the defendants can point to testimony that supports the proposition.

The first bellwether jury trial that is scheduled to begin on April 19, 2021, involves a plaintiff who sued Bard and its subsidiary in October 2018. The lawsuit alleges that the companies knew and withheld that the hernia mesh products were not a viable long-term hernia treatment. It further alleged that the "Sepra Technology" coating breaks down and is absorbed by the body too quickly, exposing the internal organs and other tissues to the polypropylene and increasing the risk of complications.

The Abdominal Core Health Quality Collaborative (ACHQC), formerly known as the Americas Hernia Society Quality Collaborative (AHSQC), also filed a motion arguing that its report on the device should be excluded from the trial's evidence as the data is not risk-adjusted. The judge denied the motion stating that the court has permanently sealed the reports so that they can only be reviewed by three individuals.

The judge also denied the defendants' attempt to exclude evidence concerning medical device reports and complaints related to other patients but partially allowed them to present percentages or comparative analysis of adverse events rates through witnesses.

Currently, C.R. Bard is facing more than 8,000 product liability litigations against its products, which include Bard Ventralight, Bard Ventralex, Bard Perfix, Bard 3DMax, and other similar mesh systems. Each lawsuit claim that the company sold defective products in the market, which has resulted in plaintiffs suffering from painful and debilitating complications.

6th Circ. Affirms Summary Judgment To J&J In Mesh Lawsuit

On Monday, the United States Court of Appeals for the Sixth Circuit affirmed a Tennessee federal court's decision to dismiss a woman's product liability claim against Johnson & Johnson (J&J) Healthcare Systems Inc. and its subsidiary Ethicon Endo-Surgery Inc. over its pelvic mesh implant, ruling that the lawsuit was time-barred under the state's law.

According to the lawsuit filed in 2013, the Tennessee woman had the mesh device implanted in 2003 to help her alleviate the effects of several medical procedures. In 2006, she started experiencing discomfort, and over time she was forced to repair and replace the mesh product because it eroded through the vaginal canal.

The woman claimed that it was not until July 2012 when she learned about the reason behind her sufferings, following which she filed a lawsuit the next year in May seeking compensation for her ongoing pain and problems allegedly caused by the mesh device.

In response to the lawsuit filed, the defendants filed a motion for summary judgment, asserting that the claim was time-barred per Tennessee’s statute of repose, which prohibits product liability claims brought more than six years after the date of the injury.

The state's federal court dismissed the lawsuit in January, agreeing to the defendants' assertion stating that the woman started having trouble with the implant in 2006.

The woman appealed, contending that her earliest injury was in 2011 and claiming that she wasn't aware that the device was the reason behind her medical problems until a doctor told her in 2012.

A three-judge panel of the Sixth Circuit refused to revive the case, ruling that the case was filed too late as the woman had mentioned in her testimony that the mesh had begun to cause her problems in 2006 and she had not demonstrated that she was first injured in 2011 or 2012.

Around four million women have vaginal mesh implants, and more than 150,000 have alleged complications associated with it. There are in all 7 MDLs to handle Transvaginal Mesh Litigation, overseen by U.S. District Judge Joseph R. Goodwin in the Southern District of West Virginia for coordinated discovery and early bellwether trials.

Study Indicates Teenage Vaping Increases Cigarette Use Later

In the December issue of Pediatrics, a study was published by the researchers with Children’s National Hospital and the University of Texas at Austin, indicating that the use of electronic cigarette (e-cigarette) as a teen increases the odds of traditional cigarette smoking.

The objective of the study was to investigate whether e-cigarette use and cigarette smoking are dependent on smoking intention status. The researchers analyzed data of the Population Assessment of Tobacco and Health (PATH) Study, which is the U.S. nationally representative prospective cohort study of tobacco use. Data collected in 2014–2015 (wave 2) and 2015–2016 (wave 3) were used for the analysis, which was done in 2019.

The results revealed that teens who used e-cigarettes with no intention of smoking cigarettes in the future were four times more likely to find themselves smoking cigarettes a year later as compared to the ones who did not use e-cigarettes. The study also noted that the risk was similar to the teens who had the intention of smoking cigarettes in the future.

The researchers concluded that vaping might create an intention to smoke and/or nicotine use disorder that leads to the onset of cigarette smoking.

The vaping epidemic is growing in the U.S., and several lawsuits have been filed against JUUL and the manufacturers of other e-cigarettes, alleging life-long nicotine addictions, severe lung damage, and other injuries.

JUUL Labs Inc. is currently facing more than 1,100 lawsuits and class action claims, each raising similar allegations that the manufacturer created false and misleading advertisements for JUUL, plaguing the U.S. with nicotine addiction problems in recent years. The litigation has been centralized under MDL. No. 2913 in the U.S. District Court for the Northern District of California, presided by U.S. District Judge William H. Orrick III.

JPML Agrees To Centralize Elmiron Cases Over Vision Problems

On Tuesday, the United States Judicial Panel on Multidistrict Litigation (JPML) issued a transfer order, stating that the panel finds the centralization of Elmiron lawsuits in the District of New Jersey will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.

Elmiron, also known by its generic name pentosan polysulfate sodium, or PPS, is an oral prescription drug used to treat pain/discomfort caused by bladder disorder interstitial cystitis, or IC. Recently, it has been discovered that the drug might lead to severe retinal injuries and permanent vision problems, following which many users have filed lawsuits.

In September, a consolidation request was filed by the plaintiffs who allege Johnson & Johnson (J&J) and its subsidiary Janssen Pharmaceuticals for failing to warn about the side effects associated with the IC drug. The request included 63 actions pending in eleven districts, as listed on Schedule A of the attached transfer order, as well as 65 potentially-related actions. The plaintiffs asked the JPML to centralize the cases before Honorable Brian R. Martinotti in New Jersey.

The recent order notes that no responding party opposes the centralization, which will eliminate duplicative discovery, avoid inconsistent pretrial rulings, and conserve the resources of the parties, their counsel and the judiciary.

The centralization in the District of New Jersey is supported by plaintiffs in 42 actions, whereas some plaintiffs proposed alternative transferee districts of the Eastern District of Pennsylvania or the Southern District of Florida. Responding plaintiffs in 33 cases support centralization in the Eastern District of Pennsylvania, and plaintiffs in the Southern District of Ohio Gruppo action support centralization in the Southern District of Ohio.

The order concludes that the lawsuits listed on Schedule A and pending outside the District of New Jersey are transferred to the District of New Jersey and will be presided by Judge Martinotti for coordinated pretrial proceedings.

ParaGard IUD Cases Combined In Northern District of Georgia

Earlier this month, oral arguments were held over the consolidation of all ParaGard intrauterine device (IUD) lawsuits, following which the U.S. Judicial Panel on Multidistrict Litigation (JPML) issued a transfer order this Wednesday, confirming centralization in the Northern District of Georgia.

The order states that the lawsuits have common questions of fact, and consolidation will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation.

In September, plaintiffs filed a motion seeking consolidation of the lawsuits pending in the Central District of California (Traylor) in that district, or, in the alternative, the Northern District of Georgia, the Western District of Missouri, or the Eastern District of Louisiana. 55 actions pending in 31 districts as listed on the Schedule A section of the attached transfer order are consolidated, and the panel has also been notified of more than 25 potentially-related lawsuits.

The defendants, Teva Pharmaceuticals and The Cooper Companies, Inc., submitted a joint response in opposition to the centralization, arguing for centralization in the Southern District of New York or, in the alternative, the Middle District of Florida or the Southern District of California.

The defendants had already filed a motion in October, opposing the consolidation, claiming attorney's advertising resulted in the rise, and it is not a “genuine mass tort.” They also argued that the need for common discovery or depositions could be done through informal coordination, as several plaintiffs are represented by the same law firm.

The number of ParaGard lawsuits is growing and involves common allegations that the birth control device has a risk of breaking upon removal, causing complications and injuries, including surgeries to remove the broken piece of the device, infertility, and pain.

The lawsuits listed in the order and pending outside the Northern District of Georgia are transferred to the Northern District of Georgia and are assigned to Honorable Leigh Martin May for coordinated or consolidated pretrial proceedings as per the consent of the stated court.