Momentum, Potential and Challenges
Here’s Your October Mass Tort Report update from Legalcalls.com by Attorney Jeff Keiser.
We know how busy life can get, so we’re here to help you stay ahead of the curve in the ever-changing world of legal marketing. Whether you’re looking for new cases to chase or a reliable source for leads on the classics, we’ve got you covered. Grab a coffee, take a quick break, and dive into this month’s insights—your next big win might be just around the corner.
Suboxone Tooth Decay Cases: Gaining Momentum
The Suboxone tooth decay lawsuits are making significant headway under Judge Mitchell S. Goldberg in the Eastern District of Pennsylvania. These cases are part of a growing MDL, with plaintiffs alleging failure to warn about the potential for serious dental issues, including tooth decay, fractures, and even total tooth loss. Importantly, despite adverse reports and studies dating back to 2012, no warnings were issued until 2022. This delay persisted despite the FDA receiving over 300 reports of dental damage caused by the drug.
The litigation is picking up steam as more individuals come forward. Settlement discussions are likely to extend into 2025, with potential settlements or verdicts expected in the range of $50,000 and $150,000 per plaintiff, depending on the severity of the dental injuries suffered. Bellwether trials will play a critical role in shaping the outcome of the MDL and could be scheduled for mid-to-late 2025.
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Depo-Provera: A Growing Case with Major Potential
Depo-Provera lawsuits are still in their infancy, but they are already generating significant interest, and there is growing anticipation that many of these cases will eventually be consolidated into an MDL. These cases focus on allegations that the contraceptive increases the risk of developing meningiomas—non-cancerous brain tumors. A study published in the British Medical Journal in March 2024 found that women using Depo-Provera were 5.6 times more likely to develop meningiomas compared to non-users. In past lawsuits like this, settlements have averaged around $850,000, with verdicts up to $3.4 million. Given the strength of the scientific evidence linking Depo-Provera to these brain tumors, settlements in these cases could meet or even exceed these historical averages.
The potential plaintiff pool in this litigation is enormous. With over 74 million women worldwide having used Depo-Provera or its generic equivalents, and approximately 2 million women in the U.S. regularly receiving the injection, the scope of this litigation could grow significantly. Although this litigation is still in its early stages, it has the potential to become a major mass tort case in the coming years. Keep an eye on these developments, as they could lead to substantial settlements down the road.
Dacthal: A Refresh for an Old Case
The Dacthal litigation has seen significant developments in the past few months. Most notably, in August 2024, the EPA issued an unprecedented emergency suspension of all Dacthal registrations, citing severe risks to unborn babies. This action came after years of the manufacturer failed to submit necessary safety data. Following the EPA’s order, all Dacthal registrations were withdrawn.
Lawyers have been investigating claims related to birth defects and developmental issues in children linked to Dacthal exposure. The EPA suspension has heightened the focus on claims for damages, as the legal arguments now emphasize negligence in failing to provide required safety information. Legal advertisements thus far have focused on connecting people who experienced health complications, particularly birth defects and developmental issues in children. These ads often target farmworkers, pregnant women, and those living near agricultural areas where Dacthal was used.
There is a strong possibility that the Dacthal litigation could be consolidated into an MDL. Given the growing number of lawsuits being filed across the country, many involving similar claims of health issues like developmental problems and birth defects linked to Dacthal exposure, MDL consolidation would help streamline pretrial proceedings.
While no specific settlements have been reached in the Dacthal yet, we can look at similar pesticide cases to estimate potential payout amounts. In previous large-scale cases involving pesticide exposure, such as Monsanto’s Roundup, settlements ranged from $80,000 to over $10 million per plaintiff, depending on the severity of health impacts, the strength of the evidence, and the number of plaintiffs involved. With this case, we are just getting started. Stay tuned.
Roundup: A Setback for Plaintiffs and Future Challenges
Schaffner v. Monsanto is a serious setback, with the 3rd Circuit ruling that federal pesticide laws (FIFRA) preempt state failure-to-warn claims. With FIFRA preempting these claims, plaintiffs now face the challenge of developing alternative legal strategies, such as focusing on design defects or negligence. This decision creates a significant legal hurdle and could limit future plaintiffs’ options in court. Even more, this decision creates a circuit split amongst the courts of appeal, meaning SCOTUS may grant certiorari.
The bad news doesn’t end there. Monsanto has been on a roll, including a defense verdict in a Philadelphia case where the jury found that Roundup was defective but did not cause the plaintiff’s non-Hodgkin’s lymphoma. Additionally, a recent mistrial in a Delaware wrongful death case has also worked in Bayer’s favor. Even in cases where plaintiffs have been successful, the results have been mixed. Some large verdicts have been drastically reduced on appeal, such as a $2.25 billion award in Pennsylvania being slashed to $400 million, and a $1.56 billion verdict in Missouri being cut to $611 million.
While some plaintiffs have seen significant payouts, this trend of reduced damages may signal further challenges ahead. With Bayer pushing SCOTUS to resolve a circuit split on this issue, the future of Roundup litigation remains uncertain. Plaintiffs will need to adjust their strategies as this case continues to evolve.
Ozempic: Early Progress and Growing Litigation
The Ozempic litigation is progressing steadily after being consolidated into MDL 3094 in the Eastern District of Pennsylvania. These lawsuits, which target Novo Nordisk’s Ozempic, Wegovy, and other GLP-1 receptor agonist drugs, allege that the medications have caused severe gastrointestinal side effects, including gastroparesis (stomach paralysis), ileus, and intestinal blockages. The MDL, overseen by U.S. District Judge Karen Marston after the untimely death of Judge Gene E.K. Pratter in May 2024, is getting back on track.
As of October 2024, there are over 1,090 cases filed, but that number could exceed 10,000 claims over time. But don’t get too excited. This is a new case, and it will take time. I’d be surprised if we saw a bellwether in 2025, but it is conceivable. The growing number of cases suggests that this litigation will continue to attract significant attention as it unfolds.
Bard Hernia Mesh Settlement: A Milestone for Plaintiffs
The Bard hernia mesh litigation has reached a critical milestone with Becton Dickinson, the parent company of C.R. Bard, agreeing to a global settlement that will resolve the majority of claims against the company related to its polypropylene hernia mesh products. This settlement will cover approximately 25,000 cases in the federal MDL and another 15,000 in state courts, marking a significant victory for the thousands of plaintiffs who have alleged serious complications caused by Bard’s hernia mesh devices. While the full financial details have not been disclosed, BD’s quarterly reports have shown that the company set aside $1.9 billion to cover litigation and settlement costs.
This settlement represents a major victory for the plaintiffs and highlights the importance of mass tort litigation in holding corporations accountable for defective products. However, litigation remains ongoing for other hernia mesh manufacturers, such as Covidien and Ethicon, which continue to face legal challenges. The Bard settlement is a reminder that, while the road to resolution can be long and difficult, perseverance can ultimately lead to justice and compensation for those harmed by defective medical devices.
Wrap up
That’s it for this month! We hope you found these tips helpful and are ready to take your legal marketing game to the next level. As always, if you have any questions or need help with your strategy, we’re just a click away.
Craig H. Alinder, Vice President