June 6, 2021
Bayer announced a $10+ billion dollar settlement & Courts Refuse?
Your monthly legal news update from Legalcalls.com by Attorney Jeff Keiser
- Settlement??? – Bayer announced a $10+ billion dollar settlement more than a year ago, but the Court continues to refuse finalizing the deal. On May 19, 2021, a hearing took place in front of Judge Chhabria that cast even more doubt on the settlement’s viability. While appearing to accept the deal for one type of plaintiff, he balked at what the deal would mean for future claims. While this is a hurdle for the settlement, negotiations continue and everyone hopes to arrive at a place where all parties, and Judge Chhabria, are satisfied.
- Still on the Market – Bayer responded to Judge Chhabria’s refusal to preliminarily approve the settlement agreement by issuing a 5-point plan for future use of the toxic chemical. The new package of measures, which combine a number of legal and commercial actions, is designed to help the company achieve a level of risk mitigation that is comparable to the previously proposed national class solution.
- Individual Cases – One Roundup case has been tried in federal court, with a judgment for the Plaintiff for over $80 million. The trial judge reduced that verdict to $25 million, but it remains a substantial judgment against Bayer, making a global settlement all the more attractive. On May 14, 2021, the U.S. Court of Appeals in San Francisco refused to hear the appeal, affirming the $25 million judgment. Bayer plans to take the case to the U.S. Supreme Court.
- Verdict Upheld – On June 1, 2021, the U.S. Supreme Court refused to hear J&J’s appeal against a $2.21 billion ruling from 2018 in favor of 20 women that developed cancers after using talc. The Supreme Court did not issue any opinion or guidance as to reasoning, but there is nowhere else for J&J to go at this point. Such a high dollar amount is likely to push them towards settlement.
- Settlement Continues – Last year, Johnson & Johnson agreed to pay $100M to just over 1,000 plaintiffs for cancer diagnoses following the use of talcum powder. These cases were the most serious cases on the docket, most of which stem from a diagnosis of mesothelioma. According to a joint status report filed by the parties on May 10, 2021, there are currently 26,695 cases pending before Judge Wolfson in the MDL. In addition, the parties report that more than 3,000 other cases are pending in various state courts nationwide, including California, Delaware, Missouri, New Jersey, Florida, Georgia, Illinois, Pennsylvania, Louisiana, Arizona, Rhode Island, Texas and Virginia.
- Bellwethers – The parties are currently preparing a group of “bellwether” cases for trials, which may begin by early next year. While the outcomes of these “test” trial dates will not be binding on the more than 30,000 plaintiffs presenting claims, they will provide a strong gauge for how juries may respond to evidence and testimony that will be repeated throughout the claims and may have a significant influence on the amount Johnson & Johnson may have to pay if the company wants to avoid thousands of individual trial dates in U.S. District Courts nationwide.
- Overturned on Appeal – On April 29, 2021, the New Jersey appellate court reversed a $117 million award in a state case, separate from any MDL. The Court found that the trial judge had allowed improper experts to testify. Kim Montagnino, a J&J spokeswoman, hailed the appellate panel’s ruling as a turning point in the talc litigation because it places restrictions on experts used by talc plaintiffs to prove asbestos caused their cancers.
- Other Cases – A jury in California awarded $4.8 million to a man who developed mesothelioma after decades of using Old Spice Talcum Powder. In his lawsuit, his lawyers accused talc supplier Whittaker Clark & Daniels of selling talcum powder from a mine in North Carolina that the company knew was contaminated with asbestos. On April 15, after a 5-week trial in Los Angeles, the jury awarded him $1.8 million in compensatory damages for his injuries, plus another $3 million in punitive damages.
- Zantac is Back – Following the recall of all Zantac products in 2020, no one expected to see Zantac back on the shelves, but that is exactly what will soon happen. On April 29, 2021, Sanofi announced that they plan to reintroduce the brand with the generic ingredient found in Pepcid: famotidine. Marketing of the drug again may be complicated as the size of the Zantac litigation over ranitidine-based pills continues to grow, with bellwether cases likely to reach trial in 2022.
- Bellwether Trials on the Horizon – Legal commentators expect Judge Rosenberg to establish a bellwether trial program to help estimate global settlement values. It’s unlikely that any trials will be held in 2021, though scheduling should begin in the first half of the year. Having these trials on the docket for 2022 may foster global settlement negotiations.
- Settlement Value – Some lawyers have started to speculate about the value of these cases. A nationwide mass tort attorney recently estimated a top tier case in this litigation may be worth $500,000. Lower-tier cases drop to as low as $100,000, but these cases have extremely high value.
Ron Mill, another attorney involved, had this to say:Speculating at this point is not a very useful exercise. But let’s do it, anyway. If the litigation goes very well, the number I would pull out of thin air is between $150,000 and $750,000 with an average of $200,000. The estimated trial value would be higher if you took your case to trial. Much higher. I mean, look at the Roundup verdicts where we saw a $1 billion award. Of course, if the case goes to trial, there is also the risk of getting a zero verdict.
- Progress? – The Hernia Mesh lawsuits are moving ahead in state and federal courts across the nation, involving defective Hernia Mesh products manufactured, sold and distributed by Bard, Ethicon, Atrium, and Covidien. These are all separate and distinct litigations, but we can see trends that apply to all.
- Bard – This litigation is the biggest hernia mesh litigation, based solely on market share. The major state litigation is venued in Rhode Island (where Bard is headquartered), and the federal Multidistrict Litigation (MDL) is venued in the Southern District of Ohio.
- Ethicon – The Ethicon Hernia Mesh litigations mainly focus on Physiomesh and include claims involving certain Proceed and Prolene product lines. The major state litigation is venued in New Jersey (where Ethicon is headquartered), while the federal Multidistrict Litigation (MDL) is venued in the Northern District of Georgia. Currently. The first in-person federal trial is still scheduled to take place on June 7, 2021, with additional state and federal bellwether trials close behind.
- Atrium – The Atrium Hernia Mesh litigations are mainly focused on the C-Qur product line. The major state litigation is venued in New Hampshire (where Atrium was headquartered at one time), while the federal Multidistrict Litigation (MDL) is venued in the District of New Hampshire. Currently, the first in-person federal trial is scheduled to start on July 7, 2021, with additional state and federal bellwether trials close behind.
- Coviden – This litigation is smaller, based largely upon market share. There is a major state litigation is venued in Massachusetts (where Covidien was headquartered at one time). Currently, there are no bellwether trials scheduled.
- All Signs Point to Settlement – These signs point towards a global settlement, or at least a settlement by MDLs individually. Bellwether trials tend to trigger settlement discussions and resolutions, and the fact that all three MDLs have scheduled trials for 2021 indicate that this will be one of the more active periods in the litigation.
3M Combat Arms Earplug Litigation
- Bellwether Trial Verdict – On April 30, 2021, the first bellwether trial in the largest MDL in history concluded with a $7.1 million verdict for three plaintiffs. Additional bellwethers are scheduled for later this year, and could prove the impetus for global settlement negotiations, especially with similar results to this first trial. 3M issued a statement after the verdict saying it remains confident in its case and is ready to defend itself in the other upcoming trials. The statement added it believed there were multiple grounds to appeal the verdict in this case.
- Next – The second bellwether trial is ongoing. May 25, 2021 was the 7th day of trial. As the first bellwether took 5 weeks to complete, we expect a second verdict sometime in June. The Court has been clear that this trial will not take as long. The third earplug trial is set for June 7th. The resolution of these cases will likely point towards settlement, at least with more verdicts.
Craig H. Alinder, Vice President
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