What Happened In The MassTorts World Last Week? 2018-Sept-24

Saturday, Sep 22, 2018

The manufacturer of the controversial weedkiller Roundup seeks to overturn the $289 million verdict granted by a San Francisco jury favoring a groundskeeper, who claims he developed Non-Hodgkin's Lymphoma (NHL) due to glyphosate exposure while using Roundup and Ranger Prov herbicides.

Monsanto continues to disagree about glyphosate's role in causing NHL and argues that enough scientific evidence was not presented during the trial to support the plaintiff Dewayne Johnson's claim. However, in August the jury found Monsanto liable for failing to warn the plaintiff and other consumers about the Roundup’s cancer side-effect. The jury indicates the company must pay $39 million in compensatory damages, and another $250 million in punitive damages to Johnson for its negligent actions. In a recent post-trial motion, Monsanto asked  Superior Court Judge Suzanne Bolanos of California to hold the verdict, reduce the award or grant a new trial. A hearing motion to discuss the same has been scheduled for October 10, 2018.

Apart from Johnson's case, Monsanto faces more than 8,000 product liability lawsuits each raising a similar allegation. Roundup's multidistrict litigation (MDL No. 2741; In Re: Roundup Products Liability Litigation) is presided over by Judge Vince Chhabria, in the U.S. District Court of  San Francisco. A series of bellwether trials are scheduled for 2019; the first one to go for trial is plaintiff Jeff Hall's case in February 2019 in the City of St. Louis.

Friday, Sep 21, 2018

In an order issued on September 18, U.S. District Judge George Wu dismissed Johnson & Johnson's plea to toss a lawsuit brought by seven women in the ongoing legal battle over asbestos contaminated talcum products. The California judge asserted J&J must face suit over the violation of state warning label and false advertising laws. The judge stated the talcum giant was "simply demanding more" detail than was necessary for a complaint.

Several asbestos-in-talc lawsuits are underway in various U.S state courts for bellwether trial, over ovarian cancer and mesothelioma risk in individuals who used J&J's talcum product. The multidistrict litigation (MDL 2738; In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation) is presided over by Hon. Freda L. Wolfson, U.S.D.J./ Hon. Lois H. Goodman for coordinated pretrial proceedings in the District of New Jersey.

Friday, Sep 21, 2018

In a September 10 notice of appeal, Plaintiff Marilyn Adams involved in the Zimmer hip implant litigation has appealed to the 3rd Circuit U.S. Court of Appeals to reinstate her lawsuit, which was dismissed last month by U.S. District Court Judge Edward G. Smith over late filing.

Adams was implanted with Zimmer Inc.’s Kinectiv Technology hip implant system with a VerSys femoral head in 2011. She experienced metallosis, an adverse tissue reaction, allegedly due to the design defects of the hip implant and eventually removed it in 2015. She sued the manufacturer in February 2017 accusing them of failing to provide adequate warning. However, the New Jersey jury rejected her claims as she had crossed the two-year statute of limitation period.

Zimmer Durom Hip Cup multidistrict litigation was centralized on June 9, 2010, in the U.S District of New Jersey before Judge Susan D. Wigenton as a multidistrict litigation, MDL No. 2158 (In Re: Zimmer Durom Hip Cup Products Liability Litigation).

Friday, Sep 21, 2018

In a case management order issued on September 19, C.R. Bard’s hernia mesh multidistrict litigation (MDL) Judge Edmund A. Sargus appointed two attorneys as Plaintiffs' Co-Lead Counsel, one attorney as Plaintiffs' Liaison Counsel, four to serve on a Plaintiffs' Executive Committee, and eight additional attorneys were assigned to Plaintiffs' Steering Committee.

The move was taken to coordinate general discovery into common issues in the trial cases, argue motions before the court and take required actions during the recently formed MDL proceedings that will benefit all plaintiffs. However, each plaintiff is required to maintain their own attorney for handling case-specific issues linked to Bard hernia mesh. Product liability lawsuits filed across several federal courts claim complications related to Bard Ventralex, Bard Perfix, Bard Composix, and other polypropylene hernia patch products sold by C.R. Bard. Plaintiffs accuse the mesh manufacturer of knowingly ignoring the design defects of the mesh, which has caused them severe complications post surgery prompting them to remove the mesh within a few years.  If the settlement agreement is not reached through bellwether proceedings, the cases might be remanded back to the U.S. District Court where they were originally filed.

As of August 2018, 120 hernia mesh lawsuits over different brands of Bard Davol polypropylene products are pending in the federal court. The multidistrict litigation against C.R. Bard was formed on August 2, 2018, assigned to U.S. District Judge Edmund A. Sargus (In Re:  Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Products Liability Litigation, MDL Docket No. 2846, JPML) for coordinated discovery and pretrial proceedings in the Southern District of Ohio.

Thursday, Sep 20, 2018

In an order submitted on September 14, the New York Supreme Court, Appellate Division, First Department confirmed a trial court's order granting additur in a 2017 asbestos case. The past and future pain and suffering damages have been increased from $3.8 million to $6.5 million.

The order affirmed that there was adequate evidence on the plaintiffs' side from which the jury could analyze that the defendant knowingly hid asbestos exposure risks from the workers.

Asbestos exposure has been linked to mesothelioma, which is a rare form of cancer affecting the lungs, skin, stomach, and heart. Several construction place workers and manufacturing plant workers have filed lawsuits against companies for failing to warn them about asbestos exposure hazards.

Thursday, Sep 20, 2018

U.S. District Judge M. Casey Rodgers presiding over Abilify gambling lawsuits has finalized six individual cases for a “fast-tracked” discovery process. As per the judge's order issued on September 13, the discovery process would involve claims filed by Bruce Bletz of Louisiana, Licente Harned of Pennsylvania, Christine M. Kennedy of Massachusetts, Annette Northcutt of Nevada, and Louis M. Ortiz and Valerie D. Stingley both from Arizona.

Each of the six plaintiffs is required to submit a completed Plaintiff Fact Sheet, medical, financial records along with gambling record authorizations and other relevant documents within one week. The order also states that the Plaintiffs’ Steering Committee and Joint Discovery Committee are required to submit a proposed discovery schedule for these six selected cases earliest by October 26, 2018. The proposed schedule must include a briefing schedule for dispositive and other significant motions like consolidation, punitive damages, statutes of limitations that must be resolved before the trial. If the parties involved in the second round of bellwether trials fail to reach on a settlement agreement or otherwise resolve the litigation, Judge Rogers might remand a large number of cases back to federal courts. Judge Rodgers also issued a separate case management order on the same day, stating the next set of trials would commence in spring of 2019.

Abilify litigation was centralized in the Northern District of Florida in October 2016 as a part of multidistrict litigation MDL No. 2734 (In Re: Abilify Compulsive Behavior Products Liability Litigation).

Wednesday, Sep 19, 2018

According to an order issued on September 11 by U.S. District Judge Richard Story presiding over all Ethicon physiomesh cases, the discovery deadlines have been extended for two and a half months; this will push the start of the first bellwether trial date until the end of 2019 or early 2020.

The initial discovery pool concerning the transvaginal mesh complications was expected to be finalized by December 2018, but that selection would now be delayed until mid-February 2019. Each side has been ordered to submit a proposal regarding the manner of the trial, order of the selection of plaintiffs and specific timing of trials earliest by mid-July 2019. The court will consider challenges to the admissibility of expert witness testimony and dispositive motions by 2019 end.

Ethicon Pelvic Mesh lawsuits claiming design defect complications and failure to warn allegations are centralized as a part of a multidistrict litigation (MDL No. 2327; In Re: Ethicon, Inc., Pelvic Repair System Products Liability Litigation) overlooked by U.S. District Judge Joseph R. Goodwin in the Southern District of West Virginia.

Wednesday, Sep 19, 2018

Judge Arnold New on Friday allowed two boys to pursue punitive damages linked to their claims against Johnson & Johnson unit that they were not given an appropriate warning about the alleged breast growth due to Risperdal consumption.

The Pennsylvania judge also rejected arguments by Janssen Pharmaceuticals Inc. (a subsidiary of J&J) in the Philadelphia County Court of Common Pleas to permit the statutory protections against punitive damages, a privilege offered under New Jersey law to avoid the chance of any additional payouts. Risperdal is an antipsychotic drug used to treat depressive symptoms. However, lawsuits filed across the nation claim the prolonged use of the medication caused gynecomastia or enlargement of male breasts, often requiring a correction surgery. More than 7,000 product liability lawsuits have been filed against J&J and Janssen Inc. for failing to provide adequate warning to consumers regarding the adverse effects of the drug. Two coordinated actions have been filed for Risperdal cases: one in Los Angeles Superior Court (Risperdal and Invega Product Liability Cases, JCCP 4775) and the other in Philadelphia (In Re: Risperdal Litigation, March 2010 Term, Case No. 100300296).


Wednesday, Sep 19, 2018

In an order issued on September 12, Judge Pamela Reeves of the U.S District Court for the Eastern District of Tennessee allowed product liability claims by Plaintiff Martha Karen Jones against Davol, Bard in Davol Dulex hernia mesh case to proceed.

However, the breach of warranty claim has been time-barred since it was not filed within the four-year statute of limitations period. The plaintiff underwent hernia surgery in 2008. Later, in 2012, the mesh got infected and had to be removed requiring additional surgeries until May 2017. Jones then filed a complaint against C.R. Bard and Davol for false marketing the defectively designed hernia mesh.

Lawsuits linked to hernia mesh complications are expected to go to trial in 2019. The multidistrict litigation (MDL No.2782; In Re: Ethicon Physiomesh Flexible composite Hernia Mesh Products Liability Litigation) was formed in June 2017 before U.S. District Judge Richard Story in the Northern District of Georgia.


Wednesday, Sep 19, 2018

In an order issued on September 10 by Judge Joan Ericksen of the U.S. District Court for the District of Minnesota, design, manufacturing, negligence, and breach of warranty claims by an Ohio resident Nancy Axline against Bair Hugger warming device have been dismissed under Ohio Product Liability Act (OPLA). However, the Minnesota federal judge declined to dismiss claims alleging the violation of consumer protection statutes, stating that they were not barred by the OPLA.

Axline underwent a left total hip arthroplasty on April 21, 2009, during which 3M's Bair hugger warming blanket was used post which she developed devastating surgical site infections. Axline's case is scheduled to go for trial on December 3, 2018. More than 5,000 lawsuits filed against the warming blanket maker claim infection such as MRSA (methicillin-resistant Staphylococcus aureus) as a hazardous side-effect. Similar cases are consolidated into a multidistrict litigation (MDL 2666; In Re: Bair Hugger Forced Air Warming Devices Products Liability Litigation, MDL No. 2666) in the District of Minnesota before U.S. District Judge Joan Ericksen. 3M prevailed in the first trial against them in May 2018.

Tuesday, Sep 18, 2018

A recent asbestos trial concluded with a New York Supreme court for Erie County announcing $7 million in favor of the plaintiffs representing James Stock Jr., now a 60-year-old and a former laborer at Jenkins Brothers Valve Company. The September 14 verdict by Hon. Deborah Chimes held the company 50 percent liable for the man's mesothelioma due to asbestos exposure while working at Jenkins, which was diagnosed in January 2017.

Asbestos exposure in mines and manufacturing plants have led to mesothelioma in several workers. Lawsuits filed by several individuals allege the owners of failing to forewarn the hazards of asbestos exposure.

Tuesday, Sep 18, 2018

Johnson & Johnson’s Talcum powder supplier Imerys Talc America has agreed to settle the claims made by Plaintiff Carolyn Weirick that years of using their asbestos contaminated Baby Powder caused her mesothelioma. Imerys has confessed on the allegation that it knowingly sold the adulterated product to the public. During the closing arguments on September 13, plaintiff’s attorney asked the California jury for $29 million in damages for the alleged lung cancer. Weirick states she used the baby powder for nearly 40 years, and like millions of other individuals, she blames the company for false marketing the product as safe to use.

Many women have also filed lawsuits over asbestos-in-talc causing ovarian cancer when used for personal hygiene purpose. J&J faces more than 10,000 claims over these allegations, the trials for which are underway in several state courts this month.

Tuesday, Sep 18, 2018

Amidst recent U.S. Food and Drug Administration (FDA) warnings regarding flesh-eating infections due to Invokana and similar diabetes drugs, a product liability lawsuit has been filed on September 6, by a Connecticut man who had to undergo a partial scrotum amputation, as he developed Fournier’s gangrene after taking Invokamet.

The lawsuit, filed by plaintiff Lee Letourneau in the U.S. District Court for the District of New Jersey, states that Letourneau was under the diabetes medication since February 2017 and experienced flesh-eating infection as a severe side-effect, which prompted him to undergo surgical removal of 60% of his scrotum. Until FDA's warning issued last month, Letourneau indicates he was unaware of the drug's gangrene effect and blames Johnson & Johnson and its Janssen Pharmaceuticals subsidiary for failing to warn about the potential hazards of taking Invokamet. Invokamet combines Invokana with the older diabetes drug metformin. The FDA found that though diabetes can increase the risk of the infections, the side-effects are still rare among patients not under Invokana & similar drug's treatment. The regulators have ordered for a new warning label for several drugs belonging to the SGLT-2 class which includes Invokamet also.

Lawsuits filed in several state courts allege Invokana use has led to amputations of legs, feet and toes, Diabetic ketoacidosis, Kidney failure, Cardiac arrest, and Urinary tract infections. As of August 2018, the multidistrict litigation (MDL No. 2750; In Re: Invokana (Canagliflozin) Products Liability Litigation) holds more than 1,036 cases over Invokana complications, which are centralized before Honorable Brian R. Martinotti in District of New Jersey for coordinated pretrial proceedings.

Tuesday, Sep 18, 2018

A majority opinion issued recently by the U.S. Court of Appeals for the Third Circuit rejected the class action lawsuit, filed by Mona Estrada in April 2014, claiming economic damages for all the women who purchased Johnson & Johnson's asbestos-laden talcum powder. The federal appeals court upheld the decision made by a lower court in 2015, rejecting the lawsuit to reinstate a class action lawsuit over talcum powder cancer warnings.

The complaint was filed to seek class-action status to pursue economic damages for all women who purchased J&J's Baby powder. Estrada did not develop ovarian cancer but alleges a proper label warning would have prevented several women from using the talcum products for personal hygiene purpose and is seeking economic damages from the jury.

The Appeals Court denies the claims made by the woman calling it a “buyer’s remorse.” The opinion issued stated, “because the plaintiff here has failed to plead facts sufficient to establish economic harm, the District Court’s judgment will be affirmed.”

Talcum products have been reported to cause ovarian cancer and mesothelioma in many individuals across the nation. J&J is charged with more than 10,000 lawsuits all alleging that they downplayed the risks of their Baby Powder and Shower-to-Shower Powder products, which contains carcinogenic asbestos in them. The multidistrict litigation (MDL 2738; In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation) is presided over by Hon. Freda L. Wolfson, U.S.D.J./ Hon. Lois H. Goodman for coordinated pretrial proceedings in the District of New Jersey.

Monday, Sep 17, 2018

The U.S. District Vince Chhabria presiding over the Roundup multidistrict litigation has assigned 4 cases for Spring 2019 trial and has ordered all MDL plaintiffs to complete a fact sheet for the same.

In the case management order issued on September 12, Judge Chhabria stated that the fact sheet must include questions regarding the diagnosis and the first symptoms of non-Hodgkin’s Lymphoma (NHL) in the plaintiff and their Roundup usage history. A series of bellwether trials against Monsanto has been scheduled for next year, concerning the weed killer's alleged cancer side-effects. The first trial involves plaintiff Jeff Hall to be held on February 2019 in the City of St. Louis. Additionally, three trials would be held in St. Louis County for individual plaintiffs in April, June and September 2019. The final trial in Missouri will be held in October 2019 involving 15 different plaintiffs. Though Monsanto opposes consolidation of Roundup cases, Missouri state court lawyers are insisting on multi-plaintiff trials since many of the plaintiffs are cancer victims and struggling with life. A case filed by Alva and Alberta Pilliod, both diagnosed with NHL from Roundup might be the next trial case in California state court since they are trying for an expedited trial date due to poor health conditions.

Exposure to the weed killer Roundup has been reported to cause NHL in several individuals across the nation. Over 4,000 lawsuits have been filed against Monsanto by families of individuals suffering from cancer due to contact with glyphosate found in Roundup weed killer. All lawsuits claim the manufacturer failed to forewarn consumers regarding the carcinogenic product. Roundup lawsuits are consolidated as a part of a multidistrict litigation (MDL No. 2741; In Re: Roundup Products Liability Litigation), presided over by Judge Vince Chhabria, in the U.S. District Court of  San Francisco.


Monday, Sep 17, 2018

A California Jury asked Johnson & Johnson to pay $29.2 million as damages along with punitive damages in the sixth talcum powder trial concerning plaintiff Carolyn Weirick's mesothelioma.

The 59-year-old woman was diagnosed with mesothelioma in 2017 and her attorney's blame Johnson’s Baby Powder and Shower-to-Shower, which she used for feminine hygiene purpose, contains asbestos fibers which caused her cancer. J&J and its talc supplier are charged with "breach of trust" allegations. J&J continues to deny asbestos presence in their talc products and alleges the woman's case was not based on actual science but “data conjured” by paid clinical experts.

J&J faces thousands of lawsuits alleging the occurrence of ovarian cancer and mesothelioma in individuals who have used their talcum powder for personal hygiene. The bellwether trials will provide insights into how the jury might respond to certain pieces of evidence and testimonies in other talcum trials. Over 10,000 claims are pending against the company in California, Missouri, New Jersey, New York, and Virginia Courts. The multidistrict litigation (MDL 2738; In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation) involving asbestos-in-talc allegation is centralized for coordinated pretrial proceedings in the District of New Jersey presided over by Hon. Freda L. Wolfson, U.S.D.J./ Hon. Lois H. Goodman.



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