Final JPML of 2021
We’ve been spreading the news about mass tort developments for years now, and we hope you stay with us through 2022 and long into the future.
Final JPML of 2021
The JPML met for their final hearing of 2021, but no new MDLs were centralized, at least none that would affect the vast majority of us. Even though there were no new important MDLs, developments in some important ones deserve mention. The panel continues to transfer cases to the Paraquat, 3M Combat Arms Earplug and Zantac cases in Florida, the Juul and J&J Talc cases in New Jersey, and the Xaralto case in Louisiana. The JPML continues to transfer cases under §1407 principles. We’ll review developments and interesting notes about MDLs that are already centralized.
Sackler Settlement Sacked
The headlines in the opioid case extend far beyond the MDL. On December 16, 2021, the SDNY overturned the proposed $4b settlement that would have given the Sackler family vast protections through bankruptcy. Judge Colleen McMahon ruled that the Bankruptcy Court lacked the statutory authority to give the Sackler family those protections and they are not permitted under the bankruptcy code. While an appeal is expected, this upends a deal that was years in the making.
Meanwhile, the first bellwether trial in the national opioid litigation took place in November, ending with a verdict against pharmacy defendants, even if we don’t know the exact amount of damages.1 The jury was only assigned to find liability. Judge Polster gave himself the job of assessing damages to comply with public nuisance law, which doesn’t provide for money damages. Instead, judges can order defendants to reverse or fix the problems they created. In this case, the counties are seeking billions of dollars for drug-treatment programs to deal with the continuing problem of opioid addiction, mostly related to the use of illegal heroin and fentanyl. Even with the judgment in favor of plaintiffs, Judge Polster made several decisions during the trial that defendants will likely appeal to the 6th Circuit, including claims of juror misconduct.
Wait Till 2023
In Zantac, Judge Robin L. Rosenberg of the Southern District of Florida detailed procedures related to the selection of bellwether trials, currently scheduled the begin in the summer of 2023.2 Currently, more than 1,800 Zantac lawsuits are pending in the MDL. For the initial discovery pool, only plaintiffs residing in Florida will be considered. On December 10, 2021, the Microsoft Randomizer was used to randomly select 8% of the bellwether pool for each type of cancer associated with the use of Zantac. Judge Rosenberg left the door open to trying bellwethers even sooner, but 2023 appears to be more realistic. Some national lawyers are estimating payouts under a settlement program to be as high as $400,000, but we are a long way from anything concrete.3
The 3M Combat Arms Earplug MDL is proceeding much more quickly. On December 15, 2021, the Court wrapped up their 8th Bellwether case with a large verdict for the plaintiff. Of key importance was the fact that this case was a defense pick, one 3M wanted to push to trial. There were some real weaknesses in this case, including the plaintiff’s prior inconsistent statements and other potential sources for his pain and suffering. Nevertheless, the verdict was stunning: $7.5 in compensatory damages and $15 million in punitives.4 That brings the total to 5 multi-million-dollar plaintiff verdicts and 3 defense wins. Bellwether trials in this litigation are ongoing, with nine additional trials scheduled to take place by the end of May 2022. This remains the largest MDL in history, with more than 300,000 claimants as of writing.
Topping $11 Billion… so far
Monsanto has settled nearly 100,000 Roundup lawsuits so far, with more expected, paying out $11 billion so far. These have been block settlement arrangements with plaintiffs’ lawyers with large numbers of cases. However, on December 9, 2021, a Roundup trial resulted in a defense victory after a jury in California ruled that the plaintiff’s cancer was not caused by her years of Roundup use. The plaintiff, Donnetta Stephens, was a woman in her 70s who was diagnosed with lymphoma after years of using Roundup in her home gardening hobby. The trial was conducted entirely via Zoom video call and dragged on for nearly 3 months. The average settlement payouts for Roundup lawsuits in the higher settlement tiers has been around $100,000 to $160,000.5
Hernias are complicated
The hernia mesh cases continue as well but discussing them is slightly more complicated. There are several MDLs, separated based on defendant. Nevertheless, bellwether trials are ongoing in the Bard MDL, where Plaintiff’s bellwether ended earlier this fall with a defense verdict after a short jury deliberation. This was a disappointing result. The next bellwether has set a trial date for January 10, 2022, which will hopefully have a better outcome for the plaintiffs. Defense verdicts in bellwether trials happen, and the PSC knows how to handle this setback. 10 years ago, when C.R. Bard was a defendant in the Kugel Mesh litigation, the first bellwether trial also resulted in a defense verdict. But then the 2nd bellwether trial resulted in a $1.5 million verdict which prompted Bard to negotiate a global settlement of the remaining cases.6
Flurry of Talc
Johnson & Johnson’s Talcum Powder cases continued to move forward as well with around 35,000 cases pending in the MDL. In May, J&J paid $100 million to settle a large block of these cases, leading many to believe that a global settlement was imminent. That global settlement has yet to materialize.7 The last months of 2021 have given us a flurry of verdicts in bellwethers. J&J won defense verdicts in 3 trials and the 4th resulted in a $26.5 million verdict for the plaintiff. Before this, however, J&J suffered massive losses in nearly all talcum powder trials. Many observers and commentators see an end to this case in 2022, hopefully with a large, global settlement.8
Juul: dot i’s and cross t’s
The Juul vape pen MDL is another interesting case to follow. More than 3,000 cases are pending, but the judge recently dismissed 19 plaintiffs’ cases due to incorrect filing of PPFs.9 On Oct. 29, Juul requested Judge William H. Orrick to select school districts in Arizona and Kansas as the first bellwether trials. Meanwhile, Juul labs agreed to settle Arizona’s claims for $14.5 million and vowed not to market to young people in the state. The settlement is the second Juul has reached with state prosecutors.
Many other MDLs have been quiet over the past month or two but are likely to be interesting in the new year. The Phillips CPAP case, especially, may end up being bigger than anything else on the horizon. And who knows what else we’ll see in the new year. The one thing I can guarantee is that there will be new cases and new bellwethers and new settlements. I hope to share them all with you in 2022 and beyond, but for now, I hope you have a fantastic (and safe) holiday season.
Craig H. Alinder, Vice President