What Happened In The MassTorts World Last Week? 2019-Mar-11
Direct Filing Into The MDL Granted For Atrium C-Qur Cases
U.S. District Judge Landya McCafferty presiding over all Atrium hernia mesh lawsuits approved new procedures in a case management order issued on February 19, for the direct filing of cases into the multidistrict litigation (MDL) in New Hampshire.
The order was issued to avoid the delay in transferring cases from different district courts. In addition, an order was issued on February 15, which sanctioned an extension request filed by parties to give them time until April 1, 2019, to select the group of cases to be included in the first bellwether trials. The bellwether will be useful in measuring how juries might respond to certain evidence and testimony throughout the litigation. Though the results of these bellwether trials will not bind on other claims, the process was designed to clear the path for potential hernia mesh settlements to avoid the possibilities of hundreds of individual trials in various U.S. District Courts.
More than 1,000 hernia mesh lawsuits are pending against Atrium in the federal court system, each raising similar allegations that the C-Qur mesh has design defects and was unreasonably dangerous, and increased the need of additional corrective surgeries to remove or replace the patch.
Nearly 90 Lots Of Losartan Recalled Over Carcinogen Presence
The U.S. Food & Drug Administration (FDA) found a third type of carcinogen called N-Nitroso N-Methyl 4-aminobutyric acid (NMBA) in the popular blood pressure medicine Losartan and announced a recall on February 28, 2019.
Losartan belongs to the class of drug called angiotensin II receptor blockers (ARBs), which are used to treat high blood pressure and heart failure. The recall affected nearly 90 lots of Losartan potassium tablets manufactured by Hetero Labs in India and distributed by Camber Pharmaceuticals. This is the first time a hypertension medication was found to have NMBA. Similar recalls announced in 2018 were the result of N-Nitrosodimethylamine (NDMA) or N-nitrosodiethylamine (NDEA) contamination. FDA Commissioner Scott Gottlieb, M.D. stated, "our ongoing effort has determined that the impurities may be generated by specific chemical reactions in the manufacturing process of the drug’s active pharmaceutical ingredients.” An FDA analysis in recalled valsartan revealed that the overall risk to individual patients was very low. The agency warns, consumers are supposed to check the list of recalled valsartan products, losartan medications, and irbesartan products on the FDA's website, where data gets updated regularly. Patients must avoid stopping ARB medication until a replacement medicine has been offered to them, or else they might encounter life-threatening cardiac or blood pressure events.
The drugs affected due to the recall are packed in 30,90, 500, and 1000 count bottles with the following NCD number: Losartan 25 mg, Losartan 50 mg, and Losartan 100 mg.
Alabama Jury Grants Defense Motion In Asbestos Lawsuit
In an opinion filed on February 25, 2019, the U.S. District Court for the Northern District of Alabama, granted a defense motion in an asbestos-in-talc case ruling that the plaintiff failed to establish specific jurisdiction in the case.
The plaintiff had filed a complaint claiming that she developed mesothelioma after using Johnson & Johnson's Baby powder on herself, and her son, from the 1950s through 2015. The defendants included Cyprus Amax Minerals Company (Amax), Cyprus Mines Corporation (Cyprus), Imerys Talc America Inc. (Imerys), and J&J. The plaintiff claimed negligence, wantonness, and breach of warranty, in addition to the allegations that Imerys owned and operated a talc min in Alpine, Alabama, from 1979 to 2000. Imerys filed an affidavit, which stated it never directly sold talc to J&J and never mined in Alabama. The court pointed out that none of the arguments presented by the plaintiff proved J&J's conduct in Alabama and refused to establish personal jurisdiction of J&J for Johnson & Johnson Consumer Inc.’s (JJCI) activity within Alabama. The Alabama jury also found that J&J did not have complete control over JJCI, and J&J issued another affidavit furnishing that J&J and JJCI are separate entities since 1979.
Mass. High Court Affirms 6-year Limit For Asbestos Claims
On Friday, March 1, the Massachusetts Supreme Judicial Court ruled that the six-year statute of limitations for construction tort claims was applicable to diseases with long latency periods, such as those linked to asbestos exposure.
As per Massachusetts' construction tort statute of repose, a six-year limit has been put on any and all claims related to the "design, planning, construction of general administration" of the vast majority of construction projects. Counsel for the estate of a plaintiff, who died of mesothelioma in 2016, argued that it was unfair to apply the statute to asbestos exposure victims as the symptoms of the disease take decades to appear.
The legislative motive behind the six-year limit was clear and the ruling stated the statute of limitations was valid even if the defendants were aware of the potential health risks at the time the exposure occurred. A six-judge panel stated that "we recognize that, considering the latency period for asbestos-related illnesses, this will have the regrettable effect of barring all or nearly all tort claims arising from negligence in the use or handling of asbestos in construction-related suits. Nonetheless, the appropriate recourse is in the Legislature, not this court."
Another dangerous side-effect allegedly caused due to asbestos exposure include ovarian cancer, claimed in thousands of lawsuits filed by individuals who used talc-based products for a prolonged time.
Arthrex Knee Implant Suit Moves Forward in Pa. Federal Court
In an order issued on February 27, Judge A. Richard Caputo of the U.S. District Court for the Middle District of Pennsylvania refused to toss a lawsuit involving complaints against Arthrex Inc.'s iBalance knee implant, ruling that the claims filed were timely because the limitations period did not begin until the plaintiff's second knee implant failed.
The lawsuit involved allegations by a couple that the iBalance knee devices implanted in the woman's knee twice were defective. The Pennsylvania court found that a question of fact existed whether the negligence claims were preempted by federal law. Similar complaints regarding knee implant failure have been filed against other manufacturers like Zimmer Inc., Stryker Corporation, and DePuy Orthopedics. Recently, plaintiffs involved in the Zimmer NexGen knee implant litigation agreed to be part of a global settlement program to resolve most of the lawsuits pending in the state and federal courts.
Miami City Bans Glyphosate-based Herbicides
Miami became the latest to ban herbicides containing glyphosate as an active ingredient in them. Glyphosate is found in weed-killing herbicides like Roundup and researchers have found that the chemical is present in samples of the air, food and even in beer and wine used by the general public.
On Thursday, Miami City Council approved glyphosate ban and prohibited the city and its contractors from using Roundup or any other herbicide that contains the allegedly cancer-causing chemical, glyphosate in them. The resolution was sponsored by Commissioner Ken Russell, who examined the city's herbicide use after blue-green algae bloom, red tide, and fecal contamination was observed in the city. He found that about 4,800 gallons of glyphosate products were used by Miami per year on weeds on the streets and sidewalks. Though the city's public workers had stopped using glyphosate-based products, Russell wanted to officially ban glyphosate in Miami. Stuart, Miami Beach, and several other Florida cities decided to impose their own glyphosate ban. In January 2019, a French court canceled Bayer's license for the controversial weed-killer Roundup Pro 360, after a court ruled that the regulators violated the safety concerns in 2017 while clearing the product for extensive use. Last year in December, Sonoma City Council imposed restricted use of Roundup in all of the city parks in California and indicated their plan to put a ban on the weedkiller.
The second Roundup trial is currently underway in the U.S. District Court, Northern District of California, where Judge Vince Chhabria overlooks the multidistrict litigation (MDL No. 2741; In re: Roundup Products Liability Litigation) for claims filed by individuals suffering from non-Hodgkin’s lymphoma allegedly due to glyphosate exposure.
Incorrect Packaging Leads To Recall of Birth Control Pill
On March 4, the FDA advised a nationwide birth control pill recall by Apotex Corp. impacting four lots of Drospirenone and Ethinyl Estradiol tablets, which may have placebo pills in the wrong area or missing tablets.
The recalled birth control pill packs might contain defective blisters with wrong tablet arrangements or empty blister pocket. This might lead the women to take tablets in the wrong order, lowering the effectiveness in preventing pregnancy. The FDA officials warned women need not discontinue taking birth control pills; however, they should follow a non-hormonal method of birth control too, while on the pills. The recall affected packs of tablets with lot numbers, 7DY008A,7DY009A, 7DY010A, and 7DY011A with NDC number 60505-4183-3 on the outer carton. The expiration date is listed as 8/2020.
The pills were manufactured by Oman Pharmaceutical Products, Co. LLC. and distributed by Apotex Corp. According to Apotex, no case of unintended pregnancy was reported.
Purdue Pharma’s Bankruptcy Filing Might Delay Opioid Trial
On March 4, Monday, Reuters reported that Purdue Pharma was considering to file for Chapter 11 bankruptcy, as it faces over 2,000 lawsuits over allegations that it contributed to America’s deadly opioid epidemic.
The decision would mean significant delays and complications for thousands of lawsuits linked to opioid-addiction filed in every corner of the nation. In the trial for the case brought by Oklahoma attorney general, the jury will decide whether Purdue was liable for the opioid addiction crisis. Last week, Purdue filed a motion for continuance, citing massive data dumped over by the attorney general's office. Attorney General Mike Hunter retorted that the motion was a tactic to avoid the trial. According to the Reuters’ report, Purdue was planning bankruptcy filing to address its increasing liabilities over the opioid crisis. A Chapter 11 filing would halt the trial and send them into bankruptcy court. Hunter wrote, “there is no reason to move the trial date. Defendants’ attempt to do so with this motion is frivolous, desperate, and disingenuous—as is their last-minute request to once again delay their expert disclosures. This court has been clear: we are going to trial on May 28, 2019.” The case filed in 2017, alleged that Purdue Pharma, Janssen Pharmaceuticals Inc., and Teva Pharmaceuticals, marketed prescription painkillers as safe and non-addictive for chronic pain relief.
Opioid lawsuits are consolidated into a multidistrict litigation MDL No. 2804 (In Re: National Prescription Opiate Litigation) overlooked by Judge Dan Aaron Polster in the Northern District of Ohio.
Will Roundup Trial End in Mistrial? Know the Case Progress
On March 6, a pathologist testified during a federal bellwether trial that Roundup weedkiller was a substantial cause of cancer in humans and refuted Monsanto's arguments that a plaintiff's cancer was the result of hepatitis C, weight, and age.
In the second week of the trial, the pathologist told that the plaintiff was treated for hepatitis C within a year of contracting it, and the treatment reduced the risk of developing non-Hodgkin lymphoma from the virus. The pathologist also told that the plaintiff was completely cured of hepatitis in 2006, and denied Monsanto's argument that the plaintiff's NHL diagnosis in 2015 was caused by hepatitis. the pathologist who was the last expert to testify the plaintiff's case told, "if he was going to get lymphoma, he would have gotten it when he had the infection, not nine years after he was cured." A third juror was dismissed after just one week into the high-profile trial in San Francisco. Presiding U.S. District Judge Vince Chhabria dismissed three jurors from the nine-person jury so far, one for last-minute economic hardship, another for an undisclosed reason, and the third one on Tuesday, March 5, for the flu. A fourth dropout from the jury would leave just five people in the jury and can cause the case to end in a mistrial, though the claims would likely enter a retrial later this year.
Bayer faces over 9,300 Roundup lawsuits in state and federal courts across the country over allegations that it leads to non-Hodgkin's lymphoma in humans. Roundup cancer lawsuits are consolidated into multidistrict litigation (MDL No. 2741; In Re: Roundup Products Liability Litigation) in the Northern District of California. Two more bellwether trials are scheduled for this year with a number of state court claims lined up through 2020.
EU Court Asks EFSA To Reveal Glyphosate Cancer Studies
On Thursday, EU court ruled that the European Food Safety Agency (EFSA) must disclose to European lawmakers the details of studies about the dangers and carcinogenic nature of glyphosate in support of the campaigners who want Roundup weedkiller banned.
In the statement released, the European Court of Justice’s General Court told that the intent was to give the general public access to the research information, along with the knowledge of what is or could be released into the environment and understand the severity of that release. Judges recalled two decisions by EFSA that denied access to the research details. Green members of the European Parliament brought the two cases. The agency's spokesperson told, "EFSA welcomes the decision. This case, and the Court’s ruling is important because it provides orientation for EFSA and others charged with interpreting EU legislation on public access to documents." Monsanto sold glyphosate-containing herbicide under the brand name Roundup. Presently, it is off-patent and marketed by dozens of other distributors including Dow AgroSciences and Germany’s BASF. In 2015, a World Health Organization agency raised concerns about glyphosate's safety and effectiveness while concluding that it was a probable reason for cancer in humans.
Roundup bellwether trials are currently underway in the Northern District of California, where Judge Vince Chhabria overlooks the multidistrict litigation (MDL No. 2741; In re: Roundup Products Liability Litigation).