What Happened In The MassTorts World Last Week? 2018-Oct-08
Zimmer & Stryker Continue To Face Product Liability Charges
Judge Michael L. Brown of the U.S. District Court for the Northern District of Georgia sanctioned a manufacturing defect claim in the Zimmer NexGen Knee case to proceed. The federal judge denied Zimmer Biomet Holdings Inc.'s request for summary judgment and stated that the plaintiff presented enough evidence against the device maker. However, on September 27, a summary judgment was granted to Zimmer on the plaintiff’s failure-to-warn claim since it was barred by the learned intermediary doctrine. The plaintiff was implanted with Zimmer's knee replacement device in 2007 to treat his chronic left knee pain and experienced severe complications seven years later due to device breakage and flaws in the design.
In another motion passed on August 29, an Illinois federal judge Judge Nancy J. Rosenstengel allowed the plaintiff involved in Stryker's hip replacement lawsuit over alleged injuries caused due to the Rejuvenate device, to proceed with her product liability claim against the defendants.
Last month, a plaintiff involved in the Zimmer hip implant litigation appealed to the 3rd Circuit U.S. Court of Appeals to reinstate her lawsuit, which was dismissed in August by U.S. District Court Judge Edward G. Smith over late filing.
Hip and Knee implant manufacturers face thousands of allegations over design failures and inadequate warning linked to their device use.
Bard IVC Filter Trial: Potential Claims Clipped By Az. Judge
An Arizona federal judge trimmed claims made by a plaintiff involved in the lawsuit against C.R. Bard’s IVC filter stating that the plaintiff cannot be awarded for the possibility of a heart arrhythmia condition likely to take place in the future. This is the third C.R. Bard bellwether trial over the alleged injuries caused by Bard’s IVC filters.
Judge David Campbell, presiding over the Bard multidistrict litigation (MDL), narrowed down the claims by a plaintiff, considering an expert's testimony who indicates an arrhythmia was likely to occur and not sure to occur. The judge granted in part a motion for judgment as a matter of law filed by C.R. Bard. The plaintiff was implanted with Bard’s G2X Blood vessel filter in 2011 to treat her deep-vein thrombosis and pulmonary embolism, which was eventually removed in 2014 as the device fractured and caused internal injuries to her.
More than 3,800 lawsuits are pending against the manufacturer following reports of device breakage and tissue perforation. A multidistrict litigation (MDL No. 2641; In Re: Bard IVC Filters Products Liability Litigation) was created on August 17, 2015, in the United States District Court District of Arizona, presided over by Judge David G. Campbell for centralized pretrial proceedings.
Last month, in an order issued, Senior Judge David Campbell, overlooking C.R. Bard IVC Filter litigation, denied a motion filed by a plaintiff to exclude evidence linked to the device instructions from the next bellwether trial.
Talc Lawsuit Daubert Hearing Scheduled For June 2019
As per the status conference held on September 27, 2018, U.S. District Judge Freda L. Wolfson indicated that Daubert Motion hearings would commence on June 11, 2019, for ovarian cancer claims linked to talcum powder lawsuits filed against Johnson & Johnson. The judge will weigh the expert testimony and decide about the possibility of future federal court trials.
Before proceeding with the first federal bellwether trial to be heard before a jury, Judge Wolfson will rule on general causation challenges, deciding whether plaintiffs presented reliable scientific proof regarding the talcum powder cancer link. The deadline for filing motions for Daubert challenges has been set for April 18, 2019. If Judge Wolfson denies the federal Daubert challenges and J&J fails to settle talcum powder ovarian cancer claims, several individual cases would be remanded back to U.S. District Courts nationwide for individual trials in the future. While a Missouri federal judge granted a defense motion in an order passed on September 11, 2018, to impose a stay over a talcum powder ovarian cancer lawsuit filed by 64 plaintiffs. Other defendants named in the case joined in the motion with Johnson & Johnson Inc. and Johnson & Johnson Consumer Inc. Asbestos presence in talcum powder has been a major concern across the U.S. among individuals who used the talc for personal hygiene purposes.
Last month, the California Superior Court for Los Angeles declared a mistrial in the latest talcum powder asbestos case filed against J&J, as the court states the jurors are deadlocked due to the fundamental disagreement between both parties.
New Onglyza Plaintiffs Can Directly File Cases Under MDL
The federal court presiding over the multidistrict litigation constituting of hundreds of heart failure lawsuits linked to Onglyza or Kombiglyze XR medication, allowed new plaintiffs to directly file a case in the MDL. The ruling was passed in an order issued on October 3, in the U.S. District Court, Eastern District of Kentucky.
The order stated, “filing a case directly in MDL No. 2809 will not determine the choice of law, including the statute of limitations. However, Defendants stipulate and agree that the filing of a complaint directly in MDL No. 2809 pursuant to this Order shall stop the running of any statute of limitations or prescriptive period, including the statute of repose as if the complaint had been filed in the district where it could otherwise have been brought absent this Order.” Also, only lawsuits naming a single plaintiff, other than an additional consortium plaintiff, such as a spouse, can be filed directly in the Eastern District of Kentucky.
Earlier this year, an Ohio man filed a product liability case against Bristol-Myers Squibb and AstraZeneca in the U.S. District Court for the District of New Jersey, as he suffered coronary artery disease and congestive heart failure due to the alleged use of diabetes drug Onglyza.
This decision was taken mainly for the purpose of consolidated case discovery and related pretrial proceedings following which, any Onglyza or Kombiglyze XR lawsuits that remain unresolved would be returned to the specific U.S. District Court for an appropriate future trial date. The MDL Docket No. 2809 is overlooked by Judge Karen K. Caldwell in the U.S. District Court for the Eastern District of Kentucky, for coordinated pretrial proceedings.
Another Asbestos-in-Talc Lawsuit Ends in a Mistrial
This is the second time in two weeks that a talcum powder lawsuit has ended in a mistrial. On Tuesday, October 3, 2018, a Los Angeles jury was dismissed as the judge agreed that they failed to arrive at a unanimous decision and were incapable of announcing a verdict in a lawsuit filed by a plaintiff.
The plaintiff who formerly worked as a computer salesman claimed he was diagnosed with mesothelioma due to asbestos exposure. The jury hoped for at least nine votes to reach a conclusion but was stuck with eight to four against Johnson & Johnson.
Talcum powder lawsuits are currently underway in several state courts across the nation. All with a similar allegation that the asbestos-exposure from talcum use causes mesothelioma and ovarian cancer. The multidistrict litigation (MDL 2738; In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation) is presided over by Hon. Freda L. Wolfson, U.S.D.J./ Hon. Lois H. Goodman for coordinated pretrial proceedings in the District of New Jersey.
Last month, J&J's Talc supplier Imerys Talc America has agreed to settle the claims made by a plaintiff that years of using their asbestos-contaminated Baby Powder caused her mesothelioma.
NY Judges Favors Defendant Over Design Defect Claim
In an order issued on September 29, 2018, Judge Alison Nathan of the U.S. District Court for the Southern District of New York, tossed a lawsuit filed against C.R. Bard's IVC filter design defects.
The plaintiff was implanted with Bard's IVC filter on October 30, 2002, which proved to be a failure later, as he suffered severe injuries due to device breakage and tissue perforation. The case was dismissed since the plaintiff failed to present the product's flaws and did not furnish a feasible alternative design; he was also unable to prove that the failure-to-warn claims made by BSC were insufficient.
The manufacturer faces more than 3,800 lawsuits following reports of design defects, device breakage, and tissue perforation. Multidistrict litigation (MDL No. 2641; In Re: Bard IVC Filters Products Liability Litigation) was created on August 17, 2015, in the United States District Court District of Arizona, presided over by Judge David G. Campbell for centralized pretrial proceedings.
Recently, the Arizona federal judge trimmed claims made by a plaintiff involved in the lawsuit stating that the plaintiff cannot be awarded for the possibility of a heart arrhythmia condition likely to take place in the future. This was the third C.R. Bard bellwether trial over the alleged injuries caused by Bard’s IVC filters.
Risperdal Plaintiff Allowed To Replead A Negligent Claim
In an order issued on September 30, 2018, Judge Donald Cabell of the U.S. District Court for the District of Massachusetts, allowed the plaintiff to replead his negligent failure-to-warn claims linked to Risperdal side-effects. However, claims of consumer law violations, fraudulent concealment, and design defect against defendants Janssen Research & Development and Johnson & Johnson were dismissed.
The plaintiff started consuming Risperdal medication in 2007 to treat his personality disorder; however, he developed gynecomastia (increased breast tissue) and tremors as an alleged side-effect of the drug. Even after stopping the medication in 2016, the gynecomastia condition still prevailed.
More than 14,000 lawsuits have been filed over the drugs' gynecomastia side-effect. Two coordinated actions have been filed for Risperdal cases: one in Los Angeles Superior Court (Risperdal and Invega Product Liability Cases, JCCP 4775) and the other in Philadelphia (In Re: Risperdal Litigation, March 2010 Term, Case No. 100300296).
Last month, a $1 million Risperdal verdict was overturned indicating that the failure-to-warn claim made by a man against Janssen Pharmaceuticals stays preempted since the federal law bars the company from adding a gynecomastia warning label. The federal judge also stated that the ruling was passed considering the plaintiff's attorney's "inappropriate conduct" evident from his defensive tone of voice during the court hearing.