What Happened In The MassTorts World Last Week? 2019-Mar-18
Valsartan Cases Stayed Until The Next Case Management Order
U.S. District Judge Robert B. Kugler, presiding over all federal valsartan lawsuits, issued an order on February 25, to stay all pending deadlines entered in these cases before the valsartan multidistrict litigation (MDL) was established. The stay will remain effective until any further orders are issued at the end of an initial case management conference scheduled for March 27.
The stay request was filed by generic drug makers to suspend or vacate all deadlines established before the formation of the federal MDL. The product liability claims and class actions filed against the drug makers alleged that the generic versions of the hypertension medicine contained cancer-causing chemicals, including N-nitrosodimethylamine (NDMA) and N-Nitrosodiethylamine (NDEA). The complaints also involved claims that the patients were diagnosed with liver cancer, kidney cancer, bladder cancer, stomach cancer, and other digestive tract cancers due to the consumption of tainted medicines.
If the manufacturers are unsuccessful in reaching on a settlement agreement or resolution for the litigation, individual cases might be remanded back to the U.S. District Court for a future trial date.
FDA: Asbestos Traces Found in Claire's & Justice Products
The U.S. Food and Drug Administration (FDA) confirmed the presence of asbestos in product samples taken from Claire’s and Justice stores and advised consumers not to use talc-based cosmetic products.
The FDA issued a safety alert for three of Claire's products (Eye Shadows, Compact Powder, and Contour Palette) after they were found to be contaminated with tremolite asbestos. Asbestos traces were also detected in one of the product sold by Justice which was recalled in 2017. On March 11, Claire's announced a voluntary recall of the above-mentioned products, which were put up on sale between October 2016 and March 2019. They have been taken out of the marketplace as of now, and the FDA warned consumers to discontinue using those products and return them to Claire's for a full refund. Claire's issued a public notice that said the company had taken out three of its cosmetic products after the Occupational Safety and Health Administration and AMA Analytical Services conducted product testing. The company also vowed to remove any talc-based cosmetic product remaining in their store.
Even though the FDA has not received any reports of illness due to these cosmetics, talc-based products like J&J’s Baby Powder and Shower-to-Shower have been in trouble since decades for causing harmful side-effects including mesothelioma and ovarian cancer.
Bard Hernia Mesh MDL Might Have 3,000 Claims By The Year-End
In a status conference held last week, Judge Edmund A. Sargus, overlooking the Bard hernia mesh MDL, issued a pretrial order, which included a prediction made by plaintiff lawyers that roughly 3,000 claims would be filed in the federal MDL by the end of 2019.
Judge Sargus had previously allowed the direct filing of claims into the federal MDL to streamline the process. In a separate case management order issued on March 8, Judge Sargus outlined the form procedure and schedule for 12 plaintiffs who were selected for the bellwether pool to complete Plaintiff Fact Sheets (PFS), to be submitted by March 25, 2019. The next status conference has been scheduled for April 17, 2019, where the parties will meet the court to discuss further proceedings. Bellwether trials will probably begin on May 8, July 13, and September 14, next year, when the parties will observe how the jury will respond to certain evidence and testimony which will be repeated throughout the litigation.
Bard hernia mesh lawsuits, filed over complaints of debilitating complications caused due to defective mesh design, are centralized in the Southern District of Ohio as part of multidistrict litigation (MDL No. 2846; In Re: Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Products Liability Litigation) for coordinated pretrial proceedings.
The Fifth Circuit Remands Asbestos Suit to State Court
On Monday, March 11, the 5th U.S. Court of Appeals concluded that a former Navy mechanic's asbestos lawsuit against shipbuilder Huntington Ingalls must be sent back to state court after finding that the case was not qualified to be transferred to federal court.
The lawsuit was filed by a plaintiff in Louisiana State Court over allegations that he was exposed to asbestos while working for Huntington Ingalls Inc. at the Avondale shipyard. He was diagnosed with mesothelioma in 2017 and died later that year.
The plaintiff asserted a negligence claim against Avondale; however, the case was removed by Avondale on the basis of the federal officer defense. The plaintiff filed a motion to remand the case and was granted the same. The fifth circuit allowed the case to be heard in state court as there was no evidence that the U.S. or any of its officials exercised any control over safety practices at Huntington Ingalls Inc. According to the Fifth Circuit, the lawsuit did not meet the causal nexus requirement for transferring it from state to federal court, which meant a demonstrable link did not exist between the defendant's actions and the plaintiff's claims, under a federal officer's directions. One of the former Huntington Ingalls' Navy ship inspector testified that he and his colleagues did not monitor safety regulations and the company was responsible for the safety of the officers during ship construction for the government. The plaintiff sued Huntington Ingalls in Louisiana state court for his mesothelioma and alleged that the contractor failed to warn him about asbestos exposure hazards and failed to supply adequate safety gears. In a differing opinion, Judge Catharina Haynes concluded, “plaintiff's status as a Navy man and Avondale’s status as a contractor for the Navy satisfies the causal nexus test.”
Dying California Woman Awarded $29.5M in a Talc Lawsuit
On Wednesday, March 13, the Oakland jury found Johnson & Johnson's talcum powder was tainted with carcinogenic asbestos fibers and was a substantial reason for a woman's mesothelioma. The 12-member jury awarded $29.5 million to the dying California woman.
After two days of deliberation, the Oakland jury ruled in favor of a plaintiff as they found J&J 78% liable, J&J Consumer Inc. 20% liable, and onetime talc supplier Cyprus Mines Corp. 2% liable for the plaintiff’s cancer. The jurors found that J&J failed to provide adequate warnings regarding asbestos exposure risks. One juror told the company purposely withheld the asbestos facts. According to a unanimous jury opinion, the plaintiff would have used some other product had she been warned about the talcum powder hazards. The woman was awarded $291,000 for past medical expenses, $1 million for future medical expenses, $1.2 million for lost earnings, and $22 million for past and future physical pain and mental suffering. Her partner was awarded $5 million for past and future loss of love and companionship.
Hon. Freda L. Wolfson, U.S.D.J./ Hon. Lois H. Goodman, U.S.M.J. overlooks J&J's talcum powder multidistrict litigation (MDL No. 2738; In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation) in the District of New Jersey.
Class Action Filed Against Claire’s Over Asbestos Hazards
Claire's was hit with a proposed class action on Wednesday in New York federal court, a day after the retail company recalled three of its makeup products, over asbestos presence concerns. The plaintiffs alleged that the recall would not fully compensate for their loss.
Two plaintiffs told that the voluntary recall of the products was not fulfilling enough to repay the consumers for their damages and future diagnostic screening. A recent test conducted by the Occupational Safety and Health Administration and AMA Analytical Services Inc. indicated the retailer sold cosmetics contaminated with asbestos. The FDA recently found that three samples collected from Claire's and one from another retailer Justice tested positive for asbestos presence.
Bayer’s Plea To Keep Essure Suit in Federal Court Rejected
On Thursday, March 14, the 4th U.S. Circuit Court of Appeals tossed Bayer AG's attempt to force a North Carolina woman and her husband's claims, linked to Essure birth control device, in federal court rather than state court.
Bayer argued that the woman and her husband's lawsuit belonged to the federal court as the case required resolution of important federal legal questions considering that Essure was regulated by the U.S. Food and Drug Administration (FDA). Bayer's argument was rejected as the three-judge panel unanimously opined that the woman's lawsuit, which alleged Bayer failed to warn about the devastating side-effects of the birth control device, did not belong to the federal court and therefore the couple's allegations were improperly thrown out by a North Carolina federal judge in 2017.
The company has been facing extensive litigation owing to critical problems related to Essure's safety and effectiveness. Last year, Bayer announced to discontinue the sales of the birth control device. Thousands of lawsuits filed by affected women alleged that the device caused them complications including hair loss and organ perforation.
Monsanto’s Summary Judgment Motion Rejected By MDL Judge
In a pretrial order issued on March 7, U.S. District Judge Vince Chhabria rejected a motion for summary judgment filed by Monsanto to escape a series of bellwether cases lined up against it over the hazards of the controversial weed killer, Roundup.
Judge Chhabria indicated that the claims filed against Monsanto would continue and the agro-giant must bear punitive damages if the plaintiffs successfully prove that glyphosate exposure from Roundup herbicide caused their cancer. The judge opined, if the plaintiffs establish the causation, Monsanto will be liable for withholding safety warnings. Judge Chhabria further stated, "although the evidence that Roundup causes cancer is quite equivocal, there is strong evidence from which a jury could conclude that Monsanto does not particularly care whether its product is, in fact, giving people cancer, focusing instead on manipulating public opinion and undermining anyone who raises genuine and legitimate concerns about the issue.” The judge rejected Monsanto's arguments that the evidence presented was insufficient to support a punitive damages award.
The federal bellwether trial developments over glyphosate exposure and cancer are closely observed by other plaintiffs and lawyers, as Monsanto is charged with more than 10,000 other Roundup lawsuits over allegations that it failed to take adequate measures to forewarn about glyphosate exposure risks.
J&J Loses Bid To Exclude Philly. Judge From Mesh Trial
On Tuesday, March 12, the Pennsylvania Supreme Court rejected Johnson & Johnson's request to remove a Philadelphia judge from a pelvic mesh trial, but the company still has a request to boot the same judge from pelvic mesh mass tort trials entirely.
The high court denied a motion filed by J&J's subsidiary Ethicon, which sought to have the justices use their King's Bench jurisdiction to exclude Judge Kenneth Powell from hearing the case involving claims filed by a plaintiff. Ethicon filed a motion last week arguing that Powell's mother has sued another J&J subsidiary over blood thinner Xarelto's side-effects. According to the company, Powell did not disclose his mother's lawsuit until he presided over one trial and was assigned another one. Speaking on behalf of Ethicon, Alicia Hickok, told, "because this court is responsible for judicial assignments in the mass tort program, and because Judge Powell has repeatedly denied the defendants' motions to recuse himself from presiding over trials within this mass tort in which he has given the appearance of or exercised bias, defendants respectfully request that this court reassign Judge Powell from the plaintiff's case and not assign Judge Powell to these cases in the future."
Ethicon had earlier filed motions before two other judges in Philadelphia County to consider the removal of Judge Powell from overlooking the mesh litigation. In the first motion which was denied on Tuesday, the company asserted that a separate judge should hold an in-camera evidentiary hearing regarding Judge Powell's recusal. The second motion, in which the company asked Judge Arnold New to bar Judge Powell from the plaintiff's case and any future pelvic mesh trials, remains pending.