What Happened In The MassTorts World Last Week? 2021-Mar-15
Three Cases On Track For 3M Earplug's Bellwether Trials
Last month, U.S. District Judge M. Casey Rodgers, presiding over the 3M earplug multidistrict litigation, issued an order indicating that two more bellwether trials will be held in the following months after the first trial.
The court order dated February 24 indicates that the second trial will begin on Monday, May 17, 2021, and will conclude by Friday, May 28, 2021. The third trial will begin on Monday, June 7, 2021, and will conclude by Friday, June 18, 2021.
The parties are required to file a pretrial stipulation and the following papers by April 16, 2021:
The pretrial stipulations, prepared in accordance with Paragraph IV of the attached order.
For both the cases, a trial brief or memorandum with citation of authorities and arguments in support of each side’s position on all disputed issues of law, with a copy to opposing counsel.
Written requests for instructions to the jury, together with proposed verdict forms.
The trials and all pretrial proceedings will be conducted at the United States District Court, One North Palafox Street, Courtroom 5, Pensacola, Florida.
The result of these trials will not hold an obligation on other cases and will be closely monitored by the parties as it would influence settlements for veterans, helping avoid the need for individual trials nationwide in the coming years.
Currently, more than 220,000 claims are filed by veterans from state courts in California, Minnesota, Oklahoma, and Texas against 3M Company, each raising similar allegations that the hearing loss injuries were caused by defective 3M earplugs that were standard issue by the military between 2003 and 2015.
Migrant Workers Excluded From Roundup's $2B Deal
Bayer might face another challenge from the migrant farmworkers in Vermont as experts state that the workers are excluded from the $2 billion settlement deal that was announced last month by the company to resolve future legal claims over the widely used weedkiller Roundup.
Many migrant workers work in the dairy industry in Vermont and Roundup is commonly used in those areas where the workers live and work.
The proposed plan was mentioned in the company's press release, which was issued on February 3. The deal stated that Monsanto’s parent company will be paying $2 billion over a period of four-years to cover outreach and diagnostic assistance of individuals who have been diagnosed with non-Hodgkin’s lymphoma and were exposed to Roundup prior to their diagnosis.
The deal establishes a fund that would pay future claimers between $5,000 and $200,000 per plaintiff. It also includes benefits for people who were exposed to Roundup and might develop cancer in the future.
However, an organizer for the activist group Migrant Justice stated that there is a major exclusionary factor that makes it difficult for migrant farmworkers to receive compensation.
The organizer further noted that although the settlement is global, several migrant farmworkers come from rural areas in southern Mexico, where there is less possibility of information reaching them.
Glyphosate use in Vermont could be affecting underground water supplies, another source of exposure for farmworkers.
In Vermont, many migrant workers work in the dairy industry, where Roundup is commonly applied to corn. Farmworkers live and work close to the weedkiller applications.
Roundup herbicide was once considered the best gift for agricultural fields. It ruled the market right from the mid-70s until 2013 when some shocking hidden facts were unveiled about this product.
In March 2013 an email sent by a senior toxicologist from Environmental Protection Agency (EPA) to her colleague mentioned the carcinogenic attributes of Roundup herbicide, which were not disclosed to the public due to Monsanto’s strong control over EPA.
Finally, in the year 2015, World Health Organization (WHO) declared that there was a linkage between glyphosate and Non-Hodgkin lymphoma and other types of cancer. Roundup herbicide was labeled as a category 2A- product by the IARC, which means it is probably carcinogenic.
Currently, Bayer is facing more than 125,000 Roundup lawsuits, and the company has acknowledged the filing of 52,500 lawsuits. The lawsuits are consolidated under MDL No. 2741 in the U.S. District Court for the Northern District of California.
J&J And Imerys Talc Appeal Over A $117M Talc Verdict
On Tuesday, Johnson & Johnson (J&J) and Imerys Talc America, Inc. over a remote hearing requested the New Jersey state appeals court to toss a $117 million verdict awarded to a man and his wife in damages against allegations of asbestos-laced talcum products.
The defendants have made the request over an array of alleged problems that happened during the trial, which include a "devastating" jury instruction dealing with the destruction of talc samples and improper expert testimony on the purported contamination. An attorney representing J&J further added that the decision presents a stark injustice with seismic ramifications not just for J&J but for the judicial system throughout the state.
The verdict was awarded to the plaintiffs in April 2018 after a more-than-two-month trial. The jurors held J&J 70% liable and Imerys 30% liable for the man's mesothelioma. The man received $30 million and his wife received $7 million in compensatory damages. The couple was awarded $55 million in punitive damages against J&J and $25 million against Imerys a week later.
The defendants are challenging the decision of how a Superior Court Judge instructed jurors that they could draw an adverse inference against Imerys over certain missing talc samples and transmission electron microscopy (TEM) grids.
In the recent hearing, each side was questioned by the three-judge panel about the alleged contamination evidence and the claims that the jury instructions were prejudicial.
Last week, the talcum giant petitioned a Writ of Certiorari with the U.S. Supreme Court to review the $2.1 billion verdict, which was awarded to a group of women over allegations of ovarian cancer from the company's Talcum powder.
The decision is a big victory for J&J and Imerys in litigation across the country over claims that purportedly asbestos-containing talc supplied by Imerys or its predecessors and used in J&J products have left consumers cancer-stricken.
J&J after the verdict stated in a statement that, "The court struck at the core strategy of the plaintiffs' bar, concluding that paid experts are not allowed to present junk science that purports to find asbestos where there is none. These unproven theories have been the centerpiece of the talc litigation, and today's opinion marks an important rejection of that approach".
While Imerys stated in a statement that it is "very pleased by the appellate court's decision to reverse the verdict in the case," and that it "stands by the integrity and safety of our products."
On the other hand, the plaintiff's attornies are disappointed by the panel's decision. Since this case was tried in 2018, investigative journalists have published about the asbestos in J&J talc, the FDA found asbestos in off-the-shelf baby powder, additional scientific studies linking talcum powder usage to mesothelioma were published.
Recently, J&J also filed an Annual Report Pursuant to Section 13 of the Securities Exchange Act of 1934, indicating that it has set aside $3.9 billion in litigation expenses in 2020, which is primarily associated with talc-related reserves and certain settlements.
COVID-19 Concerns Again Delay NY AG Opioid Trial
On Monday, Suffolk County Supreme Court Justice Jerry Garguilo said that the New York attorney general's lawsuit over the opioid crisis, which was scheduled for March 29 will likely begin on June 8 due to the concerns related to COVID-19, which still poses a risk.
The trial initially set to begin on March 20, 2020, got delayed multiple times due to the coronavirus pandemic, which grew rapidly across NY. In the recent order, the state judge also moved a March 22 court appearance to May 3.
The May 3 court appearance is scheduled to examine all factors, conditions, reports, and to determine a realistic and responsible date to commence the preliminary voir dire process.
The lawsuit was filed by NY's attorney general, Nassau and Suffolk counties against drugmakers and distributors for fueling the opioid epidemic in the state, and the trial is expected to last for several months.
Drug manufacturers, distributors, and pharmacies, which include Johnson & Johnson, McKesson Corp., and CVS Health Corp., requested that the trial should begin on August 1 and had mentioned before the hearing that a former Centers for Disease Control and Prevention official said that there's no way to proceed in March without jeopardizing the safety.
According to the local governments, the deal is too small, is improperly labeled as inadmissible in other cases, and would improperly release McKinsey from liability for claims that local governments may wish to pursue.
Judge Garguilo directed the parties to submit briefings on whether they believed that the proposed consent order forecloses all others from bringing suit against McKinsey or a subsidiary.
Opioid addiction in Northeast Ohio became the cause of death for thousands of deaths. The death rate was due to the high use of heroin, fentanyl, and other painkillers. The lawsuits also state that the huge amount of pills dumped in the market increase the addiction to these painkillers, as people chose cheaper heroin on the streets over prescription painkillers.
A case for the opioid crisis that began in 2014 was the first in history where local government entities sued Big Pharma for causing painkiller addiction. The case brought by Oklahoma in 2019 was the first to go for trial where Johnson & Johnson was ordered to pay $572 million in an opioid lawsuit. Later, the verdict was reduced to $465 million, for which the appeal is still pending.
Federal health officials warned that opioids account for nearly 70% of all drug overdoses. 3,100 deaths were accounted for due to opioid overdoses in 2013 and the number has surpassed 36,000 by 2019.
Justice Garguilo not only mentioned safety as the reason but also noted the very recent court cutbacks of staff, which has been reduced from 60% personnel levels to 40%. He further added that the current pandemic restrictions limit a trial proceeding to two days per week and for jurors to set aside two days a week for an indefinite period of time may make it impossible to seat a panel.
Proposed Future Roundup Claims Settlement Opposed By Lawyers
Last week, an amici curiae brief was filed by 93 law firms and 167 lawyers opposing the proposed settlement of future claims that would be brought against the widely used weedkiller Roundup.
The brief has now been joined by the National Trial Lawyers (NTL) President, individually and on behalf of the organization’s approximately 14,000 members. The NTL president who was also the past President of the American Association for Justice filed the Joinder in Opposition brief in federal court in San Francisco on Monday.
The organization agreed with the brief that the proposed settlement would endanger access to justice for millions of people in the proposed class and would prevent them from holding the company liable.
Bayer announced the proposed settlement in a press release, stating that the company has set aside $2 billion to resolve future legal claims. According to the plan, Monsanto’s parent company will be paying $2 billion over a period of four-years to cover outreach and diagnostic assistance of individuals who have been diagnosed with non-Hodgkin’s lymphoma and were exposed to Roundup prior to their diagnosis.
Recently, this week, an organizer for the activist group Migrant Justice stated that in the $2 billion settlement deal there is a major exclusionary factor that makes it difficult for migrant farmworkers in Vermont to receive any kind of compensation.
The settlement, if happened, will put a stay on the litigation for four years and would dissolve all class members’ claims for punitive damages and medical monitoring. Thereby a secret science panel would be formed to determine if members agree with all three juries to hear the evidence that the weedkiller causes cancer.