Is CPAP The next big thing?
Is Paraquat the next Roundup?
Your monthly legal news update from Legalcalls.com by Attorney Jeff Keiser
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In this issue:
- CPAP Litigation – The Next Big Thing?
- Talc Litigations
- Bellwether trial loss
- Bair Hugger
- Combat Earplugs
- Is Paraquat the next Roundup?
CPAP Litigation – The Next Big Thing?
In July 2021, the FDA recalled all CPAP, BiPAP and other ventilator machines that used polyester based polyurethane (PE-PUR) as noise reduction. PE-PUR may be potentially cancer causing, and when it breaks down over time, carcinogenic toxins may be directly inhaled by users of the device. On June 14, 2021, Phillips announced that an estimated 3.5 million CPAP, BiPAP and ventilator breathing machines were distributed with PE-PUR. Philips has suggested high temperatures or humidity increase the risk of the CPAP machine foam degrading. Further, certain ozone or UV light cleaning products may further accelerate the problems.
On August 9, 2021, after Phillips did not oppose centralization, MDL 3014 was created. However, as of today, the JPML has not formally issued any order directing which court will manage the MDL litigation. A Panel Hearing has been set for September 30, 2021, in St. Louis, Missouri, for further discussion regarding the eventual destination for the MDL. Likely candidates include Massachusetts and Pennsylvania.
Phillips generated over $23 billion in revenue last year and is expected to face massive liability from lawsuits and CPAP machine settlements over the next few years. This may be the next big thing, so be ready for the market to get these cases.
Nearly 4,000 cases are now active and pending in the Northern District of California’s MDL. Judge Chhabria has been managing these cases to settlement, but several cases are headed to trial. A case management conference has been scheduled for September 8, 2021 to push these cases forward.
To that end, Judge Chhabria has granted a dying man’s motion to get his case bumped to the top of the line. Plaintiff Donald Miller was diagnosed with Stage IV non-Hodgkin lymphoma after using Roundup products for over four decades. Miller’s doctor estimated he had a five-year overall survival expectancy of only thirty-seven percent as of February 2020, according to court filings. A hearing on the matter is set for Sept. 23, 2021.
Bayer has petitioned the US Supreme Court to reverse one of their trial losses, claiming that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts “failure-to-warn” claims that are central to the Roundup lawsuits. The move is widely seen as Bayer’s best hope for putting an end to claims that exposure to Monsanto’s glyphosate-based herbicides, such as the popular Roundup brand, cause non-Hodgkin lymphoma. In addition, Bayer is arguing the admission of expert testimony departed from federal standards, enabling plaintiff’s causation witnesses to provide unsupported testimony on the principal issue in the case.
A boy with non-Hodgkin lymphoma is the subject of a trial scheduled for Sept. 13, 2021. Ezra Clark was “directly exposed” to Roundup many times as he accompanied his mother while she sprayed Roundup to kill weeds around the property where the family lived. Ezra sometimes played in freshly sprayed areas, according to the court filings. When he was 4, Ezra was diagnosed with Burkitt’s lymphoma, a form of NHL that has a high tendency to spread to the central nervous system.
Another suit was recently filed against Johnson & Johnson for their manufacture and sale of talc products. This time, the suit comes from an African American group that alleges J&J targeted their community. Their claims stem from an internal 2006 J&J presentation that focused on data that showed that 60% of Black women were using baby powder compared with just 30% of the overall population. After targeting the African Community further, the group now claims that J&J failed to warn about the potential carcinogenic ingredients. J&J denies these allegations and will defend itself.
Judge Wolfson has set a date for the first trial to take place in the coordinated docket, targeting April 2022. The parties will next meet with Judge Wolfson for a status conference to determine a more precise schedule on August 31, 2021.
J&J recently reported 34,600 talc-related lawsuits have now been filed, up from just over 20,000 last year. But it does not appear as if settlement discussions are progressing smoothly at this point. J&J has been historically reluctant to settle these cases but may change their tune if bellwether trials continue to go against them. In a SEC filing in early 2021, J&J estimated its litigation expenses at $3.9 billion, noting the cost was “primarily associated with talc-related reserves and certain settlements.”
Bellwether trial loss
On July 30, 2021, an Illinois jury decided that J&J was not liable for the death of 69-year-old Elizabeth Driscoll who used the company’s talc-based powders for decades. This decision came on the heels of a dramatic turn of events involving a J&J expert witness that failed to appear for cross examination. The Court held the witness in contempt, and struck all testimony from the record, but the jury still found in favor of defendant. The verdict reflects the jury’s “careful consideration of the science and facts presented,” J&J said in a statement.
On the other hand – In June, the U.S. Supreme Court rejected its bid to overturn a $2.12 billion damages award in Missouri to 22 women who blamed their ovarian cancer on its talc products. One bellwether does not a case make, and this ruling further indicates the viability of the case going forward.
Zantac lawsuits are in the initial stages, and discovery has just begun. Despite the recent discovery process started this year, Judge Robin L. Rosenberg has ordered it completed by December of this year. Federal Zantac lawsuits have been consolidated in an MDL in Florida.
In July 2021, Judge Rosenberg dismissed cases against generic drug makers including Teva and Amneal due to federal preemption issues. There are 670 lawsuits pending in the MDL before Judge Rosenberg as of July 15, 2021. Because plaintiffs in Zantac litigation allege they have cancer, Rosenberg provided rules for attorneys to take the testimonies of plaintiffs in deteriorating health. Parties may schedule expedited depositions of plaintiffs that may not survive beyond the year or may not be capable of testifying competently within the next six months.
The first bellwether trials are tentatively scheduled to begin in 2023.
Johnson & Johnson agreed with plaintiffs that litigation over benzene in recalled spray sunscreen products should be consolidated in an MDL but disagreed on the location. A spate of proposed class actions followed a report by online pharmacy Valisure that detected benzene in several brands and batches of sunscreen marketed under the Aveeno and Neutrogena brands. Plaintiffs say the presence of benzene, which has been linked to leukemia and other cancers, renders the sunscreens worthless.
Nearly 6,000 lawsuits against 3M over its Bair Hugger patient-warming device are back in play after a federal appellate court Monday overturned a lower court decision to dismiss them. A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit ruled that U.S. District Court Judge Joan Ericksen in Minneapolis erred in granting summary judgement in favor of 3M, throwing out suits alleging that the Bair Hugger caused post-surgical infections.
C.R. Bard is currently facing a bellwether trial over claims that its hernia repair surgical mesh is defective, offering the first test of the potential strength of thousands of lawsuits by plaintiffs around the country. More than 13,000 lawsuits over Bard’s hernia mesh have been consolidated in a multidistrict litigation before Judge Edmund Sargus in Columbus, Ohio, who will also be presiding over the first bellwether trial. The MDL is the third largest in the country.
3M has lost the latest in a series of bids to move lawsuits alleging that its combat earplugs caused hearing damages from Minnesota state court to federal court, which would have cleared the way for them to be sent to the multi-district litigation in Florida. U.S. District Judge John Tunheim in Minneapolis on Thursday ruled that he lacked jurisdiction over eight lawsuits, including dozens of plaintiffs, rejecting 3M’s arguments that its status as a U.S. military contractor allowed it to raise federal law defenses. The ruling came a day after a case that was scheduled to go to trial in September as a bellwether in the MDL was voluntarily dropped. Another bellwether plaintiff will now go to trial in September instead. Three bellwether cases have gone to trial in the MDL, one of which resulted in a $7.1 million verdict for three plaintiffs and another in a $1.7 million verdict for a single plaintiff. 3M won one of the trials.
Is Paraquat the next Roundup?
Lawyers suing Syngenta are seeking consolidation of more than a dozen lawsuits alleging the company’s weed killing products cause Parkinson’s Disease. The lawsuits blame exposure to weed killers made with paraquat for the disease. Several other cases making the same allegations are pending in state courts. The motion seeks transfer specifically to Judge Edward Chen in the U.S. District Court for the Northern District of California.
In the opioid litigation, Judge Dan Polster capped plaintiff attorney contingency fees at 15%. In other words, plaintiffs’ lawyers eyeing big paydays from the $26 billion settlement were delivered a reality check after Polster said a cap was necessary to ensure money meant to help address the drug crisis was used for that purpose.
Current and former directors of Juul Labs Inc. and Altria Group lost their bid to dismiss bellwether cases in MDL 2913 over claims that they fueled a youth addiction epidemic. Judge William Orrick of the Northern District of California ruled last week that most claims could go forward against Juul founders, directors, former directors and Altria, which took a 35% stake in Juul in 2018. More than 2,000 cases have been consolidated in the MDL.
See you next month with more!
Craig H. Alinder, Vice President
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