What Happened In The MassTorts World Last Week? 2018-Jun-25
J&J Talc Supplier Files Asbestos Claim Dismissal Motion
Whittaker Clark & Daniels, Johnson & Johnson Talcum Powder supplier, submitted an appeal to dismiss an asbestos-in-talc lawsuit filed against them, on the grounds that the company has limited contacts with Florida, where the claim was filed.
The supplier filed a motion on June 13, in the Florida 13th Judicial Circuit for Hillsborough County, denying the link between the deceased woman's alleged mesothelioma and the talcum powder. They argued that the allegation is insufficient to support the Court's judgment. Her husband filed a lawsuit on May 22, 2018, under the Florida Asbestos and Silica Compensation Fairness Act, on behalf of his wife who was diagnosed with mesothelioma in April 2015. The woman used J&J's talcum powder on herself for personal hygiene and her infant children.
Several cases are charged against the baby powder manufacturer and suppliers over asbestos-linked mesothelioma and ovarian cancer. Multidistrict litigation (MDL No. 2738; In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation) was formed in 2016 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. for coordinated pretrial proceedings.
Third Time Win for Boston Scientific Over TVM Lawsuit
A 15 member Massachusetts jury ruled in favor of Boston Scientific over its pelvic mesh litigation, indicating that a plaintiff was given a proper warning about the adverse effects of the transvaginal mesh.
A couple of Nevada filed a product liability lawsuit in August 2012, claiming Boston's Pinnacle Pelvic Floor Repair Kit and the Obtryx Sling System-Halo used for treating incontinence were defectively designed. The woman was implanted with the transvaginal sling in December 2010. Later, she developed serious complications as the mesh eroded causing chronic UTIs, the return of prolapse, incontinence, and dyspareunia. The manufacturers make use of a plastic called polypropylene, which is not suitable for the human body. Boston faces several lawsuits against its TVM products for causing serious irreversible injuries to patients. By the end of 2016, Boston settled about 19,000 lawsuits from roughly 40,000 cases filed against three versions of its TVM and five versions of transvaginal slings.
Similar lawsuits are consolidated as a part of multidistrict litigation (MDL No. 2326: In Re: Boston Scientific Corp. Pelvic Repair System Products Liability Litigation) presided over by Judge Joseph R. Goodwin in the U.S. District Court for the Southern District of West Virginia.
Federal Judge Blocks Roundup Label Warning Order in CA.
U.S. District Judge William B. Shubb confirmed on June 11 that Roundup and other glyphosate-based weedkiller products in the state of California need not carry cancer risk warning labels, rejecting new arguments to amend the injunction.
The State's attorney general and director of the Office of Environmental Health Hazard Assessment (OEHHA), filed a motion to halt the introduction of warning labels in February. However, Judge Shubb dismissed the motion stating the injunction by the State was not purely factual and uncontroversial under the First Amendment and sided with Monsanto and other weed killer manufacturers.
The state and federal courts have several cases filed against Monsanto and other agricultural industry groups over cancer warning label requirements. More than 2,200 lawsuits are pending in the U.S. District Court in San Francisco, which are consolidated as a part of a multidistrict litigation (MDL No. 2741: In Re: Roundup Products Liability Litigation) under Judge Vince Chhabria. The first trial for a 46-year-old plaintiff, who is suffering from-Hodgkin Lymphoma(NHL) allegedly due to exposure to glyphosate, convened on June 18 in the Superior Court for the County of San Francisco.
Bayer Denies Claim Made By Plaintiff In A Related Yaz Case
A New Jersey State Appeals Court found loopholes in the expert report of a woman who blamed Bayer AG's Yaz and Yasmin birth control pills for her gallbladder disease. The pharmaceutical giant denied the claim made by the plaintiff to restore the litigation.
The lawsuits concerning Yaz related pulmonary embolism were the first to go for state court trial, followed by gallbladder injury cases and the final round would include blood clot injuries.
By May 2014, Bayer settled more than 8,200 lawsuits over pulmonary embolisms, heart attack and deep vein thrombosis (DVT), spending nearly $1.7 billion. As of May 2018, 63 Yaz and Yasmin lawsuits are pending in the multidistrict litigation (MDL No. 2100; In Re: Yasmin and Yaz Marketing, Sales Practices and Products Liability Litigation), which was formed in 2009 and is presided by Judge David R. Herndon in the Southern District of Illinois.
Court of Appeals Reinstates Birmingham Hip Implant Lawsuit
The 9th Circuit U.S. Court of Appeals confirmed on restoring a Birmingham Hip Resurfacing lawsuit filed by a plaintiff against Smith & Nephew alleging the manufacturer of failing to warn about the system's health risk.
The lawsuit, filed by the plaintiff in April 2016, indicates the hip implants were defective and not compliant to the federal Food, Drug and Cosmetics Act and its regulations. The case was dismissed by the district court which was reinstated by a common three-judge appeals court panel. The Court of Appeals states that the plaintiff’s proposed amended complaint sufficiently alleges a failure-to-warn claim under Arizona law.
Several Birmingham Hip Replacement lawsuits are federally-filed against Smith & Nephew, 140 of which have been combined into a major federal litigation. Hip replacement lawsuits continue to be filed under a related hip litigation involving Stryker Hip Replacement lawsuits, centralized before U.S. District Judge Indira Talwani under MDL No. 2768 – in Re: Stryker LFIT V40 Femoral Head Products Liability Litigation.
PPI Attorneys Request MDL Coordination in Delaware Litigation
Attorneys associated with PPI lawsuits filed a proposal in the Superior Court of the State of Delaware on June 11 seeking coordination between MDL and Delaware Litigation. With this order, the parties hope to avoid any duplicate discovery while proceeding with the federal multidistrict litigation (MDL).
The court order states, ‘’the court and the parties are mindful of the desire for the efficiencies to be gained through the non-duplication of discovery between the Delaware PPI Actions and discovery taking place in the other consolidated actions.’’ Both parties are required to make serious efforts to minimize duplicate motions.
More than 4,500 lawsuits against Nexium, Prilosec, and other heartburn drugs continue to be linked to claims of kidney malfunction. Lawsuits over PPIs are filed across the U.S., which are centralized as a part of multidistrict litigation (MDL No. 2789; In Re: Proton-Pump Inhibitor Products Liability Litigation |LS|No. II|RS|) in the District of New Jersey before Judge Claire C. Cecchi for coordinated discovery and pretrial proceedings.
Court of Appeals Rejects Overturn of $12.8 Million Verdict
A state appeals court panel rejected the proposal to overturn a $12.8 million verdict against Johnson & Johnson's subsidiary Ethicon Inc. over their surgical mesh implant lawsuit filed by a plaintiff. Judge Victor P. Stabile confirmed Ethicon is liable to pay the damages to the woman for her post-surgery complications.
In 2009, the plaintiff underwent surgery to implant Ethicon Prolift Kit mesh in her body. The defective design of the mesh left her with serious problems including chronic vaginal pain during sexual intercourse and vaginal mesh erosion, requiring three corrective surgeries. She filed a product liability lawsuit in 2013 against Ethicon for failing to warn the doctors about the potential risks of the mesh. Judge Stabile rejected the manufacturer's claim that Pennsylvania courts don't have jurisdiction in the case, and that the evidence does not support the damage verdict.
Several women across the U.S. who implanted transvaginal mesh to treat pelvic organ prolapse (POP) and stress urinary incontinence (SUI) claim about the inadequate warning from the mesh makers. More than 100,000 transvaginal mesh lawsuits are federally filed against various manufacturers. Ethicon Hernia Mesh lawsuits are consolidated as a part of multidistrict litigation (MDL No.2782; In Re: Ethicon Physiomesh Flexible Composite Hernia Mesh Products Liability Litigation) before U.S. District Judge Richard Story in the Northern District of Georgia.
Taxotere Bellwether Trials Schedule Ready for May 2019
In a case management order submitted on June 13, the U.S. District Judge Milazzo proposed a bellwether schedule for five Taxotere hair loss lawsuits slated to begin on May 13, 2019. Ahead of the bellwether trials, a general status conference has been scheduled for July 18, 2018.
The first case to go on trial would be selected from a pool of four lawsuits filed by Louisiana residents. Nearly 16 claims are ready for trial; another 24 more cases would be added by November 1, 2018. Cases for the second round of bellwether trials are to be finalized by January 11, 2019. The order also states, additional trials will be held starting September 16, 2019; January 27, 2020; May 11, 2020; and September 14, 2020.
The outcome of the "bellwether" trials will help assess how juries may react to certain evidence and testimony for other lawsuits related to the breast cancer drug Taxotere.
Over 5,600 product liability cases are filed against Sanofi-Aventis by women across the U.S. alleging that Taxotere used for chemotherapy led to their permanent hair loss. Taxotere lawsuits were initially centralized before Judge Kurt Engelhardt in the Eastern District of Louisiana as a part of a federal multidistrict litigation (MDL No.2740; In Re: Taxotere (Docetaxel) Products Liability Litigation). The MDL was reassigned to Judge Jane Triche Milazzo when Judge Engelhardt was appointed as a Circuit Court Judge for the Fifth Circuit Court of Appeals in May.
PPI Parties Agree on Coordinating Kidney Injury Lawsuits
According to a response to an order submitted on June 11, the parties of the Proton Pump Inhibitor (PPI) lawsuits have reached an agreement to coordinate pretrial proceedings between Delaware state court and New Jersey federal court.
The move would help to enhance judicial efficiency and will allow both the parties to avoid duplicative motions, briefs, and discovery while dealing with the thousands of Nexium, Prevacid, Prilosec and other heartburn lawsuits under the multidistrict litigation (MDL No. 2789; In Re: Proton-Pump Inhibitor Products Liability Litigation |LS|No. II|RS|). The MDL is looked upon by Judge Claire C. Cecchi in the District of New Jersey.
Bard’s New Trial Request Rejected Over $3.6 million Verdict
An Arizona federal judge rejected C.R.Bard's appeal for a new trial and judgment in a $3.6 million verdict awarded to a woman, who suffered complications due to fracture and migration of the G2 IVC filter.
The plaintiff was implanted with the IVC filter in 2007, which gradually broke, tilted and migrated, causing injuries to her inferior vena cava. She filed a lawsuit against the manufacturer for being negligent in providing adequate warning about the faulty device to her doctors. The U.S. District Court, District of Arizona found C.R. Bard liable for the woman's complications. The plaintiff was awarded $1.6 million in actual damages and $2 million in punitive damages in March. The company stated that the plaintiff had “utterly failed to present any evidence at the trial on the fundamental premise” of negligent failure to warn.
Bard called the jury's verdict “irreconcilably inconsistent" and filed motions for a new trial and a judgment as a matter of law on April 23rd. On June 19, 2018, Judge David Campbell rejected both arguments by Bard, and stated: “the focus in negligence is on the manufacturer’s conduct, while in strict liability it is on the product and the user’s expectations.”
More than 4,000 IVC filter product liability lawsuits are federally-filed against C.R.Bard over claims including filter migration and organ perforation. Judge David G. Campbell overlooks the multidistrict litigation (MDL No. 2641; In Re: Bard IVC Filters Products Liability Litigation) formed on August 17, 2015, in the District of Arizona.
Smith & Nephew Request Dismissal of 55 Hip Implant Lawsuits
Birmingham Hip Resurfacing (BHR) System manufacturer Smith & Nephew PLC appealed to a Maryland federal court to dismiss 55 claims from the federal MDL stating the statute of limitation has expired on those cases.
Each patient involved in the claim was meant to file a case within a stipulated time from the date of their surgery. The manufacturer insisted that the patients were not eligible to fight the case considering they had missed the time period allotted to file the lawsuit against the company.
Several Birmingham Hip Replacement lawsuits are federally filed against Smith & Nephew, 140 of which have been combined into a major federal litigation. Hip replacement lawsuits continue to be filed under a related hip litigation involving Stryker Hip Replacement lawsuits, centralized before U.S. District Judge Indira Talwani under MDL No. 2768 – in Re: Stryker LFIT V40 Femoral Head Products Liability Litigation.