What Happened In The MassTorts World Last Week? 2019-Aug-12

Friday, Aug 9, 2019
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On Tuesday, U.S. District Judge Dan Aaron Polster indicated that he would likely approve the first-of-its-kind "negotiation class" proposed to seek a global settlement with drug companies accused of the opioid crisis.

The negotiation class was proposed on June 14, by plaintiff lawyers on behalf of the local governments, excluding the state attorney general. A plan to organize the country's more than 30,000 local governments into one group has been established in the negotiation class. According to the proposal, cities and counties could opt out of the class, and any settlements would have to win support from 75% of voting governments based on several separate metrics, including 75% of populations and 75% of litigating and non-litigating governments.

The drug distributors have opposed the approach, but judge Polster reiterated that any companies opposing the concept can simply decline to participate.

U.S. District Judge Dan Polster is presiding over all the opioid lawsuits consolidated under MDL No. 2804 (In Re: National Prescription Opiate Litigation) brought by U.S. cities and counties of which most of the cases are filed largely by local governments, native American tribes, and hospitals.

Thursday, Aug 8, 2019
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A verbal proposal to pay $10 billion to settle claims related to the U.S. opioid epidemic was discussed amongst McKesson Corp., Cardinal Health Inc., and AmerisourceBergen Corp and a group of state attorneys general.

The companies cover a major portion of providing prescription medications to U.S. pharmacies. This is the first time in two years where the distributors have declared a dollar value to settle the claims. A demand of $45 billion to cover costs from the public-health crisis of opioid addiction and overdoses has been countered by The National Association of Attorneys General, representing more than 35 states.

According to the people familiar with the negotiations, this is the first sign of progress in resolving state lawsuits against the drug distributors.

Kristin Hunter Chasen, a McKesson spokeswoman, said, "As we explore whether resolution is possible, we share Judge Polster’s view that ‘any resolution has to be a global one,’ which includes states, local governments, cities, and counties." Chasen also stated that they are constantly engaging with other defendants to find a resolution and the company has not yet made any settlement offer. Spokesperson for AmerisourceBergen and Cardinal Health did not comment on the proposal.

U.S. District Judge Dan Polster is presiding over more than 1,900 lawsuits filed under MDL No. 2804 (In Re: National Prescription Opiate Litigation) by U.S. cities and counties, each seeking damages for costs associated with addiction and abuse.

Thursday, Aug 8, 2019
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On August 1, considering a request from the parties for deadline extensions, U.S District Judge Vince Chabbaria delayed the second Roundup bellwether trial to February 24, 2020, including several other deadlines in the process.

Following an $80 million award in the first bellwether trial that concluded in March 2019, Judge Chhabria set up a bellwether process where two “waves” of cases originally filed in certain states are being prepared for the final trial so that the cases can be sent back to the different U.S. District Courts, if the parties fail to reach a settlement or resolution for the litigation.

All the fact discovery for the second wave of cases, which includes claims originally filed in Illinois and North Carolina districts, will be completed by March 27, 2020. Judge Chhabria has ordered both parties to participate in a mediation process while preparing for the upcoming trials with attorney Ken Feinberg who has guided some major settlements in high profile litigations.

Currently, Bayer is facing more than 18,400 claims, each involving similar allegations that Roundup causes non- Hodgkin's lymphoma and other cancers. The lawsuits are consolidated under federal 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.

Wednesday, Aug 7, 2019
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Johnson & Johnson (J&J) and its subsidiaries, Janssen Pharmaceutical, appeal to reverse the $2.5 million gynecomastia verdict against its drug Risperdal has been turned down by the Pennsylvania Supreme Court.

Plaintiff Austin Pledger of Alabama, now 20, started taking Risperdal for autism from the age of 8. He claimed the powerful antipsychotic drug was the reason for his gynecomastia, a condition characterized by the permanent development of female-like breasts in men and boys. Pennsylvania State Court jury awarded $2.5 million in compensatory damages in February 2015 to the plaintiff after finding that the defendants failed to warn about the side effects associated with the drug. The plaintiff was barred from seeking punitive damages as the defendants are headquartered in New Jersey, which prohibits punitive damages in product liability claims involving federally-approved medications.

J&J had raised an argument to overturn the verdict which was rejected in October 2018, by the Pennsylvania Superior Court. Following the rejection, the defendants turned to the state Supreme Court hoping for a reversal. But on August 2nd, the justices refused to hear the case.

Around 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).

Tuesday, Aug 6, 2019
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Plaintiff Gary Kline has been awarded $7.68 million by a California state jury, who suffered from chronic pain as a result of Zimmer’s defective implant and was forced to undergo two hip replacement operations in 15 months.

Kline underwent his first surgery in 2007 when he was 51 years old. Due to the defective implant, he had to undergo a second surgery which left him with chronic pain, nerve damage, scar tissue, limitation on his daily activities and had to rely on a cane for walking.

An initial verdict of $9.2 million was awarded in July 2015 by the California Superior Court jury. But in October 2015, Superior Court Judge Amy D. Hogue made an offer to the plaintiff, either to accept a 90 percent reduction of a jury’s verdict or go through a new trial, calling the verdict significantly excessive. She also reduced the medical expenses down to $73,000.

In April 2018, Zimmer was granted a new trial on damages by California Court appeals after determining that the plaintiff’s attorney, made misrepresentations about factors including the value of the medical device industry and the amount of plaintiff’s medical expenses.

On July 26, 2019, a new jury found Zimmer Inc. liable for $4 million in future non-economic loss, $3.6 million in past noneconomic loss, and more than $80,000 in medical expenses.

Zimmer Biomet has been blamed in nearly 300 product liability lawsuits. The lawsuits are consolidated under MDL No. 2272 in the U.S. District Court for the Northern District of Illinois, presided by Judge Rebecca R. Pallmeyer. Zimmer Durom Hip Cup lawsuits are consolidated under MDL No. 2158 in the U.S District of New Jersey, presided by Judge Susan D. Wigenton.

Monday, Aug 5, 2019
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A position statement has been issued by The International Federation of Gynecology and Obstetrics (FIGO) on July 31, indicating the removal of glyphosate, the active ingredient in Roundup, from global usage based on the group’s review of the literature and its Precautionary Principle, which states, “when an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically.”

The group points out the most recent meta-analysis published in Mutation Research in February, which states glyphosate exposure could increase the risk of non-Hodgkin’s lymphoma by as much as 41%. It further noted the 2015 analysis made by the International Agency for Research on Cancer (IARC), which linked glyphosate to non-Hodgkins lymphoma.

Recently, Austrian lawmakers also announced to ban the use of glyphosate in their country for the same reasons.

Roundup lawsuits are 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.

Monday, Aug 5, 2019
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On Friday, a Kentucky jury after less than an hour of deliberations cleared Johnson & Johnson (J&J) and Colgate-Palmolive over claims that their talcum powder caused the now deceased plaintiff's mesothelioma.

According to the plaintiff lawyer Joseph Satterley,  Donna Hayes, born in 1944, started using Colgate-Palmolive’s Cashmere Bouquet Powder in 1962 and was diagnosed with mesothelioma in April 2016. She had a career as a travel agent in the 1970s. Satterley, also stated that the powders were full of asbestos and according to the documents, an FDA analysis told Colgate in 1976 that their powder was “loaded” with tremolite fibers.

This was J&J's sixth win in recent months. In a similar trial conducted in June, both the companies paid $12 million to plaintiff Patricia Schmitz. The jury found J&J 30% responsible and Colgate 40% responsible for Schmitz’s cancer.

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.

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