Weekly Mass Torts Bulletin 2021-Apr-05
3M Earplug's Bellwether Trial Jury Selection Begins
Jury selection has started for three lawsuits that are consolidated for the first bellwether trial in the 3M earplugs multidistrict litigation (MDL). The selection began on Monday and the trial will be held in Pensacola, Florida.
The focus of the trial is to get answers to the questions that are central to all the cases, which is whether the earplug designers at Aearo Technologies, later acquired by 3M, manipulate test results, hide design shortcomings, and/or fail to instruct the military in the proper use of the earplugs.
U.S. District Judge M. Casey Rodgers, presiding over all 3M earplugs lawsuits, has also allowed plaintiffs over the choice of states' laws that should be applied in their upcoming bellwether trials.
The first bellwether trial is scheduled for April 5 through April 30 and will involve claims filed by three plaintiffs. Out of the three cases, Georgia law applies to two plaintiffs, and Kentucky law applies for the third one.
According to the court order dated February 24, 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 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.
Allergan's Breast Implants Class Claims Dismissal Failed
On March 19, U.S. District Judge Brian R. Martinotti, presiding over the federal Allergan Biocell breast implants litigation, ruled that Allergan, Inc. must face manufacturing defect, negligence per se, and other claims as they were not preempted.
According to a 121-page opinion, which was a response to the company's dismissal motion, Judge Martinotti tossed failure-to-warn claims and other allegations on preemption grounds but rejected the bid to knock out the class allegations over the Biocell textured breast implants.
The company had filed a supplemental brief on January 5 in the U.S. District Court for the District of New Jersey, asking the federal judge to dismiss claims against its breast implants on the grounds that the consolidated lawsuits are preempted by federal law.
The federal judge concluded that the claims asserted by the named plaintiffs and putative class members stem from the same course of conduct of Allergan, which shares an aligned interest in seeking damages from the company.
The company failed in its attempt to toss the manufacturing defect claims after the judge asserted that the claims are not preempted and should not be dismissed.
In July 2019, the United States Food and Drug Administration (FDA) had asked Allergan to recall its Biocell textured implants, which covered 246,831 implants in the U.S.
Currently, Allergan is facing hundreds of product liability lawsuits and class action lawsuits over its breast implants, each claiming that the textured design was unreasonably dangerous and defective, and the manufacturer knew that it increased the risk of breast implant-associated anaplastic large cell lymphoma (BIA-ALCL) yet failed to warn about those risks.
Federal Judge Allows A Truvada Lawsuit To Move Forward
On March 26, Judge Kevin McNulty of the U.S. District Court for the District of New Jersey rejected a dismissal motion filed by Gilead Sciences over a Truvada lawsuit, stating that the failure-to-warn claim is not preempted as the company was not barred from seeking FDA's approval for an enhanced warning.
Truvada is one of the five different Tenofovir Disoproxil Fumarate (TDF) brand name drugs sold in the U.S. TDF is an orally administered prodrug of tenofovir and is similar to Adefovir, which is used for the treatment of HIV and chronic hepatitis B virus infections. Truvada was approved by the FDA on August 2, 2004, for the treatment of HIV-1 infection in adults.
The lawsuit was filed by a man who started taking Truvada daily in 2005, and at the same time, he was diagnosed with kidney diseases. Five years later he started experiencing pain and the pain continued until 2018 when he was diagnosed with chronic pain related to musculoskeletal disorders.
Gilead was sued in the New Jersey Superior Court over allegations that the medication was defective because it caused kidney and bone damage, and Truvada’s label failed to warn about the risks associated with it.
Gilead filed a motion to dismiss, arguing that all of the claims are preempted and that the failure-to-warn claim is precluded by New Jersey law.
According to the latest opinion, Judge McNulty stated that the lawsuit alleges Gilead acquired new information about the side effects of its HIV drugs and did not pass on to federal regulators, which is the reason for dismissal as it is clear that the risks Gilead allegedly failed to warn about did not meet the definition of newly acquired information.
The lawsuit also noted that the company had conducted studies from October 2001 through May 2007, indicating that healthy individuals were experiencing adverse kidney events while taking Truvada, which the company failed to warn doctors to monitor patients for kidney problems after this new information became available.
New Procedures Approved For Filing ParaGard IUD Claims
On March 23, U.S. District Judge Leigh Martin May, presiding over the federal ParaGard IUD multidistrict litigation (MDL), approved new procedures meant to make things efficient for plaintiffs who file new lawsuits.
According to the case management order issued, a plaintiff may serve an individual complaint against the defendants by sending a copy of the file-stamped complaint and a request for waiver of service of summons separately via email.
The order also stated that the waiver is only for the service of summons and its execution would not let defendants to be waived off from any claims, affirmative defense, or other defenses of any nature, including jurisdiction and venue.
The defendants named in the litigation are Teva Pharmaceuticals USA, Inc., Teva Women’s Health, Inc., Teva Women’s Health, LLC, Teva Branded Pharmaceutical Products R&D, Inc., The Cooper Companies, Inc., and CooperSurgical, Inc.
In February, Judge May had also appointed a group of 25 plaintiffs’ lawyers for various leadership roles. The group included one plaintiffs’ liaison counsel, two plaintiffs’ co-lead counsel, five to serve on a Plaintiffs’ Executive Committee, and seventeen to serve on a Plaintiffs’ Steering Committee.
A bellwether process is also expected soon, which would include a small group of representative claims that will be prepared for early trials to determine how juries respond to certain evidence and testimony during the process.
The result of these early trials will not hold an obligation on other cases and will be closely monitored by the parties as it would influence settlements for the plaintiffs, helping avoid the need for individual trials nationwide in the coming years.
Currently, around 136 complaints are pending in the docket and the number of lawsuits seems to be growing, each claiming 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.
J&J's Appeal To Drop Mississippi’s Talc Lawsuit Rejected
On Thursday, Mississippi Supreme Court affirmed a lower court's decision, rejecting Johnson & Johnson's (J&J) appeal to drop a case brought by the state's attorney general over mislabeling of talcum powder products.
According to the opinion dated April 1, the state's highest court concluded that the claims filed against the company were not preempted and were not prohibited under the Mississippi Consumer Protection Act.
The lawsuit is remanded back to Hinds County Chancery Court and the center of the lawsuit is the question of whether J&J should be required to add warnings on their labels over the use of talc products and should the state require it under the Mississippi statute.
The lawsuit was filed in 2014 against J&J, claiming that the company used unlawful, unfair, and deceptive business practices, violating state law by failing to disclose the risk of ovarian cancer on two product labels. The two products named in the lawsuit were Johnson’s Baby Powder and Shower to Shower, which are alleged to contain large quantities of talc powder contaminated with asbestos.
The attorney general is seeking an injunction requiring the company to include warnings on its labeling along with a civil penalty of up to $10,000 for each violation of the act.
The company argued that the chancery court should have granted a summary judgment as the state law does not apply to products regulated by the federal Food and Drug Administration (FDA) or Federal Trade Commission Act. However, the Supreme Court ruled that the FDA has chosen to not exercise its regulatory authority and has allowed the states to regulate cosmetics instead.