Weekly Mass Torts Bulletin 2021-Apr-26
First 3M Earplugs’ Landmark Trial Nearing Conclusion
The soon-to-be concluding 3M earplugs trial will impact settlement negotiations if any or affect the proceedings of hundreds of thousands of 3M combat arms earplugs lawsuits pending across the United States.
On March 29, the first 3M combat arms earplugs trial started in Florida federal court involving allegations made by three military veterans each facing hearing loss after using the 3M earplugs. The landmark trial is expected to conclude before May. Though the result of this trial will not hold an obligation on other cases, it 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.
3M Company, the manufacturer of combat arms earplugs, currently faces nearly 230,000 product liability lawsuits. The Combat Arms Earplugs Version 2 (CAEv2) were manufactured by Aearo Technologies, Inc. prior to being taken over by 3M in 2008. The dual-ended 3M CAEv2 combat earplugs served as a standard form of military hearing protection in foreign conflicts for more than a decade, from 2003 to 2015. However, lawsuits started being filed when 3M earplugs failed to provide adequate protection to military personnel thereby resulting in permanent hearing loss.
When the Justice Department brought charges of fraud over the same problem, 3M reached a $9 million settlement without admitting liability over the earplugs with the federal government.
U.S. District Judge Casey Rodgers is presiding over the coordinated discovery of federal multidistrict litigation (MDL N0. 2885), established in the Northern District of Florida.
In addition to the first trial, 3M will also face additional cases that will be overlooked by different juries on May 17, 2021, and June 7, 2021, which involve similar claims and allegations.
According to several lawsuits filed, the defective military earplugs cause two primary medical issues, tinnitus and hearing loss, mostly among veterans in the Navy and Air Force. The product was discontinued in 2015. If 3M Company decides to settle, it could prove to be one of the largest mass tort settlements witnessed in the country's history.
Talc Supplier Slammed With $4.8M Verdict By LA Jury
A Vietnam War veteran who got diagnosed with pleural mesothelioma due to the daily use of Old Spice Talcum Powder for 22 years has been issued a $4.8 million verdict against Whittaker Clark & Daniels, a talc supplier.
On April 16, 2021, a Los Angeles (LA) civil jury issued a $4.8 million verdict against a talc company over an asbestos case. The firm representing the plaintiff was successful to convince the jury that the talc supplier was responsible for a Vietnam War veteran being diagnosed with pleural mesothelioma. Since March 2020 when the Covid-19 crisis shut the court system, this is the first verdict handed out by a civil jury in LA.
The plaintiff, diagnosed with pleural mesothelioma, cancer of the lungs, had been using Old Spice Talcum Powder for 22 years daily. His lead attorney presented evidence to prove that Whittaker Clark & Daniels (WCD) was aware of asbestos contamination in its talc supply to Old Spice and establishing the link of the plaintiff's use of Old Spice Talcum Powder to his cancer diagnosis.
The plaintiff filed the lawsuit in the year 2018 against more than a dozen companies, including Johnson & Johnson and AutoZone Inc. that market products that contain asbestos. As per the jury, the plaintiff blazed a trail for many other litigants and remained steadfast throughout the case. The lawyers for the plaintiffs are pleased to provide justice during these uncertain times of the pandemic.
WCD was a major supplier of talc to Old Spice for decades and as per the trial testimony, the talc supplier was aware that the talc extracted from its North Carolina mine was known to have the presence of asbestos.
Whittaker accounts for 42% of the plaintiff's illness, while other companies like Bendix, R.J. Reynolds, and Shulton Inc., the maker of Old Spice, also share a small level of accountability. The latest verdict given by the LA jury in the cosmetic talc mesothelioma case includes $3 million punitive damages.
CA. Counties Seek $50B From Drug Makers in Opioid Addiction Trial
A $50 billion trial is underway in California filed by CA. counties against opioid drug makers including Johnson & Johnson, Endo Pharmaceuticals, and other drug manufacturers to seek damages over the opioid crisis.
Due to the ongoing Covid- 19 pandemic, a virtual hearing started on April 19 in Orange County Superior Court for this $50 billion lawsuit brought by a number of communities in California. These communities seek the cost of damage associated with the opioid crisis that has caused 500,000 deaths nationwide. This is the second case to go before a jury trial. There are yet thousands of opioid lawsuits filed nationwide against drug makers, particularly by cities, states, and other municipalities.
Allegations include that the drug manufacturers were involved in deceptive marketing for years without highlighting the addiction risks associated with opioids, and recklessly selling the powerful pain medications. Plaintiffs further allege failure to warn the medical community and patients of the opioid risks that led to massive loss of life and surmount pressure on the health care system to take corrective measures.
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.
Defendants in the ongoing trial state that pharmaceutical companies distributed drugs after getting approval from FDA. Also, AmerisourceBergen Corp., Cardinal Health Inc., McKesson Corporation, and Johnson & Johnson have proposed a $26B settlement to resolve more than 3,300 opioid crisis lawsuits filed nationwide.
Talc Plaintiffs Want $2.1B Verdict Against J&J To Stand
22 women who sued Johnson & Johnson (J&J) over its baby powder product containing asbestos that resulted in ovarian cancer have requested the U.S. supreme court to let stand the $2.12 billion verdict against the company.
Plaintiffs filed a lawsuit against Johnson & Johnson's baby powder for causing ovarian cancer due to the presence of asbestos urged the U.S. Supreme Court to stay on the decision of a $2.12 billion verdict against the talc manufacturer. Furthermore, plaintiffs also requested the high court to reject J&J's arguments over the consolidation of cases in a Missouri state court that did not comply with the processing.
According to J&J the St. Louis City, Missouri Circuit Court's decision to consolidate cases brought by plaintiffs externally confused the jury. As per the J&J law team, the consolidated trial was flawed, involving numerous legal errors which led to faulty presentations of facts and incorrect verdict. Also, the verdict was at odds with independent scientific evaluations that confirmed J&J talc is safe and not contaminated with asbestos.
J&J in its petition to the U.S. Supreme Court appealed to take the case after it was unsuccessful in November to overturn the verdict in the Missouri Supreme Court.
Earlier in a trial held in 2018, J&J was ordered by a Missouri jury to pay $4.69 billion. The decision came after the jury heard combined claims of 22 women who alleged that the company's talc powder caused their ovarian cancer. The verdict was later reduced to $2.1 billion by the Missouri Court of Appeals for the Eastern District and the court further dismissed two of the 22 plaintiffs.
An investigative report in 2018 suggests that J&J was aware of the asbestos presence in its talc for decades. Moreover, from 1971 to the early 2000s, J&J's raw talc and finished powders tested positive for small amounts of asbestos was proved by certain internal company records, trial testimony, and other evidence. In May 2020, J&J stated that it would stop the sale of Johnson's Baby Powder talc in the United States and Canada.
As mentioned in the annual SEC filing in February, J&J disclosed that it still faces around 25,000 talc lawsuits.
Sanofi Gets Favorable Judgment in Taxotere Hair Loss Case
On Monday, April 19, 2021, the 5th Circuit U.S. Court of Appeals upheld an award of summary judgment to Sanofi-Aventis in a Taxotere lawsuit stating that the plaintiff did not demonstrate that the drug maker's alleged failure to warn of permanent hair loss caused her injury.
The panel released a 10 page opinion was published by a three-judge panel which stated that Sanofi will not have to face a plaintiff who was unable to provide enough evidence that links the cause of hair fall by use of Taxotere.
The 5th Circuit supported the lower court’s decision to affirm the win for Sanofi in the hair loss case. Sanofi markets and manufactures the anti-cancer drug, Taxotere which is used for treating cancers. This drug was first approved by the U.S. Food and Drug Administration (FDA) in 1996. Sanofi managed the win in a patient suit that alleged that it failed to warn that Taxotere causes permanent hair loss.
The panel stated in their opinion that the dispute by the plaintiff is beyond genuine as a warning of permanent hair fall as opposed to temporary would not have any effect on prescribing physician to prescribe Taxotere. Under Louisiana law, the plaintiff could not establish causation.
The plaintiff’s hair loss case against Sanofi is part of Louisiana multidistrict litigation (MDL- 2740) which has common claims of permanent hair loss by use of Taxotere. The claim of the patient who faced a permanent hair fall was dismissed in May 2020 after receiving testimony from her oncologist, who stated that the woman was prescribed Taxotere as it was the best drug to treat her cancer considering her age and cardiac condition. Also, the plaintiff’s doctor was aware of the risk of permanent hair loss.
Sanofi stated that the plaintiff also signed informed consent before using Taxotere where it was mentioned that the radiation caused by this anti-cancer drug could lead to permanent hair loss. The plaintiff has a dispute over the fact, that her doctor admitted he would have gone for a different chemotherapy course if she didn't want to risk permanent hair loss.
The panel highlighted that as per Louisiana Products Liability Act, the plaintiff must demonstrate that the failure to warn was the cause of her damage. Also, the plaintiff should be able to prove that the manufacturer fails to warn the prescribing doctor.
Roundup Lawyers Accuse Bayer of ‘Pay to Appeal Scheme’
In a letter to the Eleventh Circuit, third-party attorneys said that Bayer is trying to dismiss thousands of Roundup lawsuits by paying the plaintiff who alleged the weedkiller caused his cancer.
The plaintiff will need to pay $100,000 under the "pay-to-appeal scheme" if he decides to drop the appeal. The attorneys for the plaintiff argued that Monsanto failed to warn that Roundup causes cancer, and the appeal challenges Bayer's argument that federal law preempts state law claims.
All the attorneys across the nation who represent Roundup plaintiffs claim that the company completely failed to issue the warning of Roundup causing cancer.
This is the first case that Monsanto has won on the grounds of failure to warn the issue of Roundup causing cancer. The company even admitted that it paid the plaintiff to appeal the issue to court. The counsel for the plaintiff and Monsanto agreed on a settlement only if the appeal limits to failure to warn the issue.
Attorneys for the plaintiff admitted that if there were no agreement, he wouldn't have prosecuted the case at the district court level due to the lack of scientific evidence to support his particular cancer allegations.
The spokesperson for Bayer stated that the company wants to maintain transparency in appealing about the failure-to-warn about Roundup in the lawsuits on federal preemption grounds. The company has already resolved tens of thousands of claims, and its ultimate goal is to prevent new cases.
Bayer is constantly facing litigations since 2018 after purchasing Monsanto CoIt has even agreed to pay $11.6 billion to resolve Roundup lawsuits from about 125,000 consumers and farmers in the U.S.
U.S. District Judge Vince Chhabria is overseeing all the Roundup lawsuits in the Northern District of California under MDL No. 2741.