Weekly Mass Torts Bulletin 2022-May-30

Veteran's $55M Verdict In Earplugs Lawsuit Slashed To $21.7M

A $55 million award to a U.S. Army veteran over hearing damage in a 3M earplugs lawsuit has been slashed to $21.7 million by a federal jury citing the limit of the reward under Colorado law.

It is the first time that a Pensacola, Fla.-based judge who oversees hundreds of thousands of 3M earplugs' cases has reduced an award.

As per the lawsuit, the plaintiff served in the Army from 1997 to 2017. He used 3M's Combat Arms Earplugs Version 2 while deployed in Iraq and Afghanistan, where suffered from permanent hearing damage and tinnitus because of exposure to noise on the battlefield.

In January, the plaintiff, along with another veteran, was awarded $15 million in compensatory damages and $40 million in punitive damages. It is one of the biggest jury awards in U.S. history, making it the largest federal mass tort ever.

The judge explained that the award of $15 million in compensatory damages was subject to a Colorado cap on non-economic damages resulting in the amount to reduce to $7.2 million with prejudgment interest. As per the law of Colorado, punitive damages cannot exceed actual damages, eventually reducing the award to $14.5 million.

3M faces claims from more than 290,000 former and active military members alleging that the combat earplugs are defective and cause hearing damage. There were 16 trials scheduled in the litigation, and the verdict came in the 11th trial.

The products were developed by Aearo Technologies, which was bought by 3M in 2008. The plaintiffs allege that the company hid design flaws, misinterpreted tests and failed to provide proper information about the usage of the earplugs. 3M has denied all the allegations.

Earlier, a veteran was awarded $77.5 million, which is the largest verdict for a single person in the earplug lawsuit. Plaintiffs won 10 cases against the company, whereas six cases resulted in 3M's favor.

Tentative Settlement Of $161.5M Between Opioid Drugmakers & WV

A tentative settlement of $161.5 million has been reached between the attorneys for the state of West Virginia and two remaining pharmaceutical manufacturers over the opioid epidemic.

The pharmaceutical manufacturers involved in the lawsuit are Teva Pharmaceuticals Inc., AbbVie’s Allergan and their family of companies. The trial has been put on hold by the judge to give the parties a fair amount of time to work out a full settlement agreement in the upcoming weeks. The state's attorney general said that the settlement would help the state deal with the drug crisis by providing the required resources.

The trial of the lawsuit started on April 4. The defendants in the lawsuit were accused of exaggerating the benefits of opioids and downplaying the addiction risks.

As per the tentative deal between the parties, $134.5 million would be allotted in cash to West Virginia, and $27 million worth of Narcan would be supplied to the state by Teva. Narcan is a medication that would reverse opioid overdoses, bring back someone to consciousness and restore breathing.

As per the plan announced by the state's attorney general, a nonprofit foundation designated to distribute money in opioid-related litigations will get 72.5% of the settlement amount. The local governments would get a 24.5% share, whereas the state would get 3%. There would be 11 board members who will decide upon the settlement. The board members would be representatives from six regions of the state and five state appointees. They would have expertise in fields like law enforcement, substance misuse and mental health.

Last month, a $99 million settlement was reached between West Virginia and drugmaker Johnson & Johnson’s subsidiary Janssen Pharmaceuticals Inc. over the company's role in the opioid crisis, which resulted in numerous drug overdose deaths.

Since 2007, more than $47 billion in settlements have been proposed and finalized over penalties in the opioid crisis. Most of the money from the settlements would be used to address the drug crisis, which has claimed the deaths of more than 500,000 Americans in the last two decades. A small portion of $750 million from the Purdue deal would be paid to the individual victims and their survivors.

FDA Receives 21,000 Reports About Philips CPAP Issues

The recalled sleep apnea devices face more than 21,000 reports against it, including at least 124 deaths, claiming that the devices release small particles which are harmful and might cause cancer.

Last year Philips recalled all the sleep apnea machines sold between 2009 and April 2021 as the users claimed that the devices are faulty and contained a defective polyester-based polyurethane (PE-PUR) sound abatement foam.

The foam of the machines is designed to reduce noise and vibrations while sleeping. The users discovered that the foam degrades and breaks down over time and releases toxic particles and debris into the machine's pathways, CPAP mask and ultimately in the lungs of the users.

Currently, Philips CPAP faces hundreds of lawsuits from its former users alleging that the regular use of the machines resulted in causing lung damage, respiratory injuries and various types of cancer. It is also estimated that the company will face additional claims in the coming months and years.

Earlier this week, the U.S. Food and Drug Administration (FDA) identified numerous problems with the Philips CPAP machines. The agency identified that the court received more than 21,000 reports of the Philips CPAP from the users between April 2021 and April 30, 2022. The reports state that the defects in the machine resulted in 124 deaths and also involve the risk of cancer, pneumonia, asthma, infections, headaches, coughs, breathing problems, dizziness, chest pains and other side effects.

The sudden spike in the reports is a matter of concern for the manufacturer of CPAP machines, as earlier between 2011 and April 2021, the agency only received 30 reports, from which eight were submitted from the U.S.

FDA warns that the analysis and reports of the devices should not be considered an accurate representation of the various problems associated with the machines as this passive surveillance system has limitations. The agency will continue its efforts to review and assess the reports. It will soon provide more updates about the machines as soon as new information is revealed.

As per an inspection report provided by the FDA, Philips was aware about the problem of degrading sound abatement foam since 2015, and it was evident in the emails exchanged with the foam supplier. However, the machines did not face any corrective actions or investigation until the recall was announced in June 2021.

AG Reports Fentanyl Outbreak In Pennsylvania

An attorney general of Pennsylvania provided a special report stating that fentanyl has been a dominant opioid drug in the state as more of it was seized in the first three months of 2022 compared to the entire last year.

The report even warned lawmakers to address the issue of an upsurge of fentanyl over heroin in recent years, which is a matter of concern.

As per a report, more than double the amount of fentanyl than heroin was seized by the Office of Attorney General Bureau of Narcotics Investigation (BNI) in 2021. Approximately 40 times more fentanyl compared to heroin was seized in the first three months of 2022.

The AG informed that Fentanyl has rapidly replaced heroin as the dominant opioid in the state of Pennsylvania. It has eventually resulted in an upsurging the drug overdose death in Pennsylvania. Pennsylvania reported that last year 15 Pennsylvanians lost their lives due to drug overdose. He even said that lawmakers and policy must take relevant measures to address and combat this crisis by using resources that will stop fentanyl from entering the state.

The report also identified that usage of fentanyl in the form of pills has contributed to the crisis. Fake pills, which are cheaper and resemble to be legitimate prescription pills, have added to the worries by fueling the addiction crisis.

As per the report provided by the Drug Enforcement Administration (DEA) Philadelphia Field Division, more than 20 percent of the fentanyl outbreak included pills or tablets. The amount of the outbreak of fentanyl pills or tablet was five times higher in 2020 than in 2019.

In 2020, overdose deaths in Pennsylvania rose by 16.4 percent and continued to rise, amounting the number to 5,438 overdose deaths in 2021, with another 6 percent increase from the prior year.

3M Penalized With $77.5M In Latest Earplugs Lawsuit

A federal jury in Pensacola, Florida, ordered 3M to pay a $77.5 million settlement to an Army veteran who claimed that the company's defective earplugs caused hearing damage to him.

As per the complaint filed by the veteran, he served in the Army from 2005 to 2009 and further in the Army Reserves until 2011. During the tenure of his service, he used 3M's Combat Arms Earplugs Version 2 while using various weapons, which eventually resulted in hearing loss and tinnitus for him.

The lawyers representing the plaintiffs provided a joint statement claiming that the 3M's defenses are unconvincing and baseless in the courts, to investors, or to the public.

3M, on the other hand, portrayed disappointment over the verdict and has indicated to appeal against it. The attorney representing the company said that they were prevented from presenting crucial evidence that could have changed the outcome of the trial. The company will address this issue in the appeal.

It is the last trial from the set of 16 trials that were held to test the strength of plaintiffs' claims and facilitate settlement talks. 3M won six of the trials, whereas the plaintiffs won 10 trials which accounted for $300 million in penalties to the company.

It is the largest verdict offered to an individual in the growing litigation that includes more than 290,000 claims in the Pensacola court against 3M over the earplugs.

The military service members used the earplugs developed by 3M between 2003 and 2015. 3M was bought by Aearo Technologies in 2008. All the plaintiffs involved in the 3M lawsuits allege that the company misinterpreted the test results of the earplugs, hid design flaws and failed to provide proper instructions to use them.