What Happened In The MassTorts World Last Week? 2019-Feb-04

Friday, Feb 1, 2019
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On January 30, 2019, the First Circuit Court of Appeals in Boston revived a lawsuit filed against Allergan PLC's Forest Laboratories with claims that the company illegally promoted the effectiveness of their antidepressants for children. However, the case was not allowed to proceed as a class action.

The lawsuit was brought by the Painters and Allied Trades District Council 82 Health Care Fund and Renee Ramirez, whose child used both Celexa and Lexapro as antidepressants. United States District Judge Nathaniel M. Gorton dissolved Massachusetts MDL 2067: In Re: Celexa and Lexapro Marketing and Sales Practices Litigation in 2018. Lawsuits filed against Forest laboratories claim the antidepressants are prone to cause birth defects and can induce suicidal behavior. A majority of cases involving Celexa and Lexapro were either dismissed or ended in settlements as of September 2018.

Friday, Feb 1, 2019
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Two government officials and Johnson & Johnson's local distributor in Sri Lanka told the country has stopped importing J&J's Baby Powder until the company proves its product is free from carcinogenic asbestos. As per the statement, stocks already present in the country can be sold, but no new imports of the talcum powder would be allowed.

J&J's baby powder was a popular healthcare product in Sri Lanka and in most parts of Asia until, J&J India, from where Sri Lanka imports, provided fresh test results. Reuters reported last December that the U.S. drugs and consumer products group was aware of the asbestos dangers in its baby powder which resulted in several countries like India conducting extensive testing. The chief executive of Sri Lanka’s National Medicine Regulatory Authority (NMRA), Kamal Jayasinghe, informed the local distributor that only after conducting extensive testing the country would go ahead with importing talcum powder. Meanwhile, U.S. Democratic Senator Patty Murray sent a letter to J&J's Chief Executive Alex Gorsky on January 29, asking information regarding the Reuters Special report in December 2018, which mentioned the talcum giant knew about the asbestos presence in its talc products since ages. The U.S. Senator asked for documents related to the talc testing done for the presence of carcinogens and information regarding how the results were presented to the regulators and consumers by the company.

There are more than 1,000 lawsuits pending against Johnson & Johnson which are centralized for pretrial proceedings in the District of New Jersey, presided over by Hon. Freda L. Wolfson, U.S.D.J./ Hon. Lois H. Goodman, U.S.M.J. as a part of multidistrict litigation (MDL No. 2738; In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation).

Friday, Feb 1, 2019
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In a pretrial order, U.S. District Court Judge Joseph Goodwin announced that attorneys representing thousands of plaintiffs in the pelvic mesh product liability cases against Boston Scientific might receive $366 million or 5% of the total recoveries in the cases.

Judge Goodwin wrote that the plaintiffs' attorneys were required to spend tens of millions of dollars over nine years while fighting for 104,000 patients. He stated, tens of thousands of cases have been resolved so far for about $7.25 billion and, these costs would continue to grow but are a small part of what the common benefit fund was formed to compensate. To calculate the costs petitioned for the 5% sum to be set aside for their colleagues whose work was beneficial to the plaintiffs, a committee of plaintiffs' attorneys is appointed.  

Pelvic mesh lawsuits, filed against Boston Scientific Corp., are consolidated before Judge Joseph R. Goodwin in the U.S. District Court for the Southern District of West Virginia as a part of multidistrict litigation (MDL No. 2326: In Re: Boston Scientific Corp. Pelvic Repair System Products Liability Litigation) for coordinated pretrial proceedings.

Friday, Feb 1, 2019
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On Thursday, January 31, a Philadelphia jury ordered Johnson & Johnson's Ethicon subsidiary to pay $41 million to the plaintiff in a product liability lawsuit involving Gynemesh, Prolift, and TVT-O meshes.

The lawsuit was brought by plaintiff Suzanne Emmett (57), who went through surgery after surgery to get rid of the discomfort, infections, and other painful complications caused by the vaginal mesh.  In May 2007, she was implanted with Prolift pelvic mesh to treat pelvic organ prolapse, and in subsequent years she was implanted with a TVT-O mesh to treat incontinence, and a Gynemesh to fix pelvic floor disorders. According to the lawsuit, these surgeries proved to be a nightmare for the woman, as well as several other women who experienced similar complications due to the device's high failure rate and irreversible side-effects. Emmett's attorneys, Tom Kline, and Kila Baldwin, told, “this jury rightfully compensated one of the thousands of Johnson & Johnson victims terribly injured by its mesh products and sent a strong deterrent message through its punitive damages verdict.” The verdict includes $25 million in punitive damages, $15 million in compensation, and $1 million to Emmett's husband for the loss of consortium.

J&J faces about 37,400 lawsuits related to defective pelvic mesh complications. Ethicon Pelvic Mesh lawsuits are consolidated as a part of 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.

Thursday, Jan 31, 2019
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On January 23, 2019, plaintiffs and defendants involved in the Taxotere hair loss multidistrict litigation (MDL No. 2740; In Re: Taxotere (Docetaxel) Products Liability Litigation) submitted a joint report indicating the increasing size of the litigation in the past months with more than 12,340 lawsuits pending against the defendant, Sanofi-Aventis.

As per the report, the discovery process for the first case in the trial was completed in November 2018, and expert reports were submitted by both the parties involving claims filed on behalf of Antoinette Durden. Durden's case will be the first bellwether trial scheduled to begin on May 13, 2019, which will be followed by another trial on September 16, 2019. The parties have already nominated primary and alternate plaintiffs for each of these two trial dates. Additional trials are scheduled for January 27, 2020; May 11, 2020; and September 14, 2020, if the parties fail to reach on a settlement agreement or resolve the litigation soon. About 1,187 Taxotere cases have been closed, dismissed or remanded so far.

Honorable Judge Jane Triche Milazzo overlooks the Taxotere MDL in the U.S. District Court Eastern District of Louisiana, where lawsuits filed by several individuals assert that the manufacturers withheld the chemotherapy drug's long-term side effects of permanent hair loss (alopecia) from patients and doctors.

Thursday, Jan 31, 2019
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According to a recent order issued by U.S. District Judge Dan Polster, claims filed by four Northeast Ohio governments against opioid makers have been pushed back until October 21, this year.

The trial for the lawsuits filed by the cities of  Cleveland, Akron, Cuyahoga, and Summit counties was initially set to begin on March 18 and later moved to September 3. The judge also postponed the deadlines to complete expert reports and motions before the trial. Attorneys for the governments and the drug companies sought to delay the trial asserting in their filing that the discovery was ongoing despite exhaustion. Drug manufacturers and distributors such as Purdue Pharma and Ohio-based Cardinal Health are blamed in the opioid lawsuits, which claim that the companies were aware of the opioid addiction since a long time, yet failed to take suitable measures to prevent an epidemic. The Ohio cases are the first to go for trial among a series of bellwether trials lined up this year.

Opioid overdose has been the major reason for drug overdose deaths in the U.S., with 72,000 deaths reported last November. Opioid lawsuits are consolidated into a multidistrict litigation MDL No. 2804 (In Re: National Prescription Opiate Litigation) overlooked by Judge Polster in the Northern District of Ohio.

Wednesday, Jan 30, 2019
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The Missouri Supreme Court granted Johnson & Johnson a writ of prohibition staying the start of the talcum powder trial involving 13 women who were diagnosed with ovarian cancer and which was scheduled to begin on January 22, 2019.

Although the Supreme Court has not set forth any reasoning for the stay, the trial will not begin until the court weighs in on J&J's argument that conducting a single trial for multiple plaintiffs would be unfair to the defendants and also potentially in violation of J&J's constitutional due process rights. All 13 women in the lawsuit allege their condition is the side-effect of J&J's talcum powder use which allegedly contains asbestos fibers. In their argument, J&J stated, “the claims of all 13 plaintiffs—who have been diagnosed with different types of cancers at different stages at different ages, have different medical histories, and have varying risk factors—are scheduled for a single trial…” and “by being forced to defend in a single trial the claims of 13 plaintiffs, which are governed by the law of at least nine different states and entail different types of evidence, [J&J] will be subject to unfair prejudice in violation of their Due Process right to a fair trial.” The trial would stay on hold while the Missouri Supreme Court considers J&J's arguments; one that says, Judge Rex Burlison was wrong in not granting its request to chop off plaintiffs' claims, and another that plaintiffs must go for individual trial at their respective venues.

More than 1,000 lawsuits are pending against Johnson & Johnson and its talc supplier, which are centralized for pretrial proceedings in the District of New Jersey, presided over by Hon. Freda L. Wolfson, U.S.D.J./ Hon. Lois H. Goodman, U.S.M.J. as a part of multidistrict litigation (MDL No. 2738; In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation).

Wednesday, Jan 30, 2019
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A Risperdal lawsuit involving claims filed by a 23-year-old man against Janssen Pharmaceutica is currently underway in Philadelphia Court. This is the first case in the nation to allow punitive damages if the jury rules in favor of the plaintiff. The jury heard arguments for the case on Tuesday, January 29.

Plaintiff Attorney Jason Itkin presented to the jurors a photo of Michael Herman as a child and pointed that then nine-year-old Herman had developed female breasts, a condition known as gynecomastia, and told it occurred due to the antipsychotic drug, Risperdal. In his argument, Itkin asserted that the company was aware of the drug's abnormal breast growth side-effect but chose to hide the fact from doctors and patients. The attorney called Janssen's conduct as intentional, outrageous, and completely focussed on seeking profit and sales. The defendant lawyer, Ethel Johnson argued the jurors to take note of the evidence and told that the doctor and the Herman family were adequately warned about the possible side-effects of the drug. She maintained that Herman was diagnosed with various mental illnesses during his childhood and the doctor who prescribed Risperdal considered it as an appropriate medication for him.

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).


Wednesday, Jan 30, 2019
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On Monday, January 28, U.S. District Judge Vince Chhabria of the Northern District of California denied Monsanto's bid to exclude vital evidence from an upcoming bellwether trial linked to Roundup's carcinogenic nature.

Judge Chhabria suggested that plaintiffs can introduce the evidence during the first phase of the trial. There were reports that pointed at Monsanto's alleged attempt to ghostwrite studies and influence researchers investigating glyphosate exposure side-effects. Plaintiffs' attorneys asserted that the evidence associated with Monsanto's alleged misconduct is crucial in proving claims filed against the agro-giant. However, Bayer maintained that the information in the internal company documents was merely an attempt to distract jurors from actual scientific evidence. Judge Chhabria admitted that though his decision was disappointing for Monsanto, any proof that confirms the company's involvement in hiding the risks of glyphosate exposure is completely relevant to the bellwether trials. The federal judge's order is applicable to the first trial set to begin on February 25, involving claims filed by a California resident Edwin Hardeman as well as two future trials. Bayer has filed another motion to bar evidence being presented for claims filed by a California couple in San Francisco Superior Court and requested to bifurcate the trial scheduled for March, into two phases.

There are more than 600 Roundup lawsuits pending in the multidistrict litigation which are centralized in the Northern District of California for coordinated pretrial proceedings. All those lawsuits raise allegations that Roundup use causes non-Hodgkin’s lymphoma, a deadly form of cancer.


Tuesday, Jan 29, 2019
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In an order issued on January 23, 2019, Chief Judge David C. Nye of the U.S. District Court for the District of Idaho dismissed a fraudulent misrepresentation claim filed by plaintiff Claudia Hepburn against Boston Scientific Corporation, finding that she failed to plead her allegations with the particularity mentioned in Rule 9(b).

The order stated that the plaintiff did not make it clear to the jury which BSC sales representative was responsible for misrepresenting the effectiveness and safety of the IVC filter to the plaintiff doctor and whether her doctor responded to the alleged misrepresentation. Claudia Hepburn was implanted with a Greenfield filter by Dr. John Mannschreck on December 23, 2009, to treat her recurrent DVT (deep vein thrombosis) episodes. In her lawsuit, Hepburn alleged that Boston Scientific failed to reveal the health risks associated with the Greenfield filter to physicians and patients, while extensively promoting it as a useful product. She asserted that she was at an increased risk of suffering from serious complications such as constant pain in the abdomen, filter migration, fracture or breakage of the filter, tissue perforation, and other devastating side-effects due to the filter's long-term implant. In May 2007, the FDA recalled the Greenfield IVC Filter after reports indicated incidents of cardiac and pulmonary embolization as a potential side-effect.

Similar IVC filter cases filed against C.R. Bard and Davol are consolidated as a part of multidistrict litigation (MDL No. 2641; In Re: Bard IVC Filters Products Liability Litigation) for coordinated pretrial proceedings, overlooked by Judge David G. Campbell, in the United States District Court District of Arizona.

Tuesday, Jan 29, 2019
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According to a study published by the U.S. Centers for Disease Control and Prevention (CDC) on January 18 in its Morbidity and Mortality Weekly Report (MMWR), there exists a possible link between opioid prescription rates and a birth defect, gastroschisis.

The federal report warned that opioid use might be the reason for the rise in a disastrous birth defect in babies which might cause their intestines to be on the outside of their body at birth. Though the study did not find any causal link, researchers noticed disturbing rates related to the opioid birth defect in areas where opioid prescription rates were high. Gastroschisis is a condition in which babies are born with their intestines on the outside of their bodies, extruding through a hole in the abdominal wall. There are some cases in which life-threatening stomach and liver complications were observed, often requiring the need for surgery; post-surgery children were found to suffer from eating and digestive disorders. The first report from CDC came out in January 2016 regarding increasing gastroschisis birth defect rates based on information from last two decades but failed to suggest a reason for the increased defect rates. This recent report was based on surveillance data from 20 state programs conducted between 2006 and 2010, and from 2011 through 2015. The CDC found that gastroschisis was 1.6 times more prevalent in counties with high opioid prescription rates as compared to areas with low opioid prescription rates.

A report issued by the Drug Enforcement Administration (DEA) last November, indicated opioid caused the largest number of deaths last year (72,000) nationwide. Opioid lawsuits are consolidated into a multidistrict litigation MDL No. 2804 (In Re: National Prescription Opiate Litigation) overlooked by Judge Polster in the Northern District of Ohio.

Monday, Jan 28, 2019
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In an Amended Practice and Procedure Order issued on January 17, 2019, Judge Richard Story announced a scheduling order for the preparation of cases for the first Ethicon hernia mesh bellwether trials scheduled to begin on February 3, 2020.

As per the amended order, the parties are allowed to choose 10 cases by April this year from an initial discovery pool containing 24 cases, which were picked last year. For expert discovery process, each side must pick 5 trial pool cases. By July 1, 2019, plaintiffs are required to submit expert disclosures and reports, and defendants can submit them by August 2. Selection for all trial pool cases is to be completed by October 14, 2019, along with dispositive or Daubert motions by October 28, 2019. Responses to those motions are to be filed by November 15 for which replies are expected by November 25. The outcome for the tests trials would help parties gauge the relative merits and demerits of the cases.

There are about 1,700 Ethicon Physiomesh lawsuits pending in the U.S. federal courts, each with claims that the flexible composite hernia mesh was prone to wear and tear and caused severe complications among several patients due to design defects. Ethicon Physiomesh Multi-District Litigation (MDL No. 2782; In Re: Ethicon Physiomesh Flexible composite Hernia Mesh Products Liability Litigation) is overlooked by U.S. District Judge Richard Story in the Northern District of Georgia for consolidated pretrial proceedings.

Monday, Jan 28, 2019
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On January 15, Bayer asked California Superior Judge Winifred Smith to split an upcoming Roundup trial involving claims filed by Alva and Alberta Pilliod linked to Roundup's alleged carcinogenic nature into two phases.

The scheme would bar the plaintiffs from presenting evidence related to Monsanto's involvement in manipulating public opinion and influencing regulators during the first phase of the trial. That evidence would be included in the second phase, which will begin only if the jury finds glyphosate was responsible for the plaintiffs' cancer. According to the lawsuit filed by the California couple, they both used Roundup on a regular basis between 1971 and 2011. While Alva was diagnosed with non-Hodgkin’s lymphoma in 2011, the same disease was detected in Alberta in 2015. The couple sued Monsanto in 2017, alleging that exposure to glyphosate-containing Roundup was the reason for their cancer. The elderly couple was granted an expedited trial by Superior Court Judge Ioana Petrou last October, considering their short life expectancy and old age. Jury selection for the Pilliod couple will begin on March 19, 2019. A hearing has been set for February 8, 2019, to discuss Bayer's motion for a bifurcated trial process.

There have been mixed reactions to Roundup’s alleged cancer side-effect around the world. Bayer's license to market Roundup Pro 360 was canceled in France while in Canada farmers continue to use the weed-killer after Health Canada declared that glyphosate does not pose any risk to humans. Judge Vince Chhabria overlooks the Roundup multidistrict litigation (MDL No. 2741; In re: Roundup Products Liability Litigation) in the U.S. District Court, of Northern District of  California.

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