New MDL Comes To Life

August 25, 2022

New MDL Comes To Life

The Mass Tort Report from by Attorney Jeff Keiser.

The stage is being set for some real action in the 2nd half of the year, and I’m excited to be along for the ride.

We have some news about new MDLs, old MDLs and a few developments that should really impact these cases going forward. So let’s get to it…

A New MDL Comes To Life

The JPML met late last month, and the only big news was the additional centralization of another infant formula case.

Abbott Laboratories is the primary defendant as the manufacturer of Similac, Alimentum and Elecare formula products.

These cases relate to contamination with Salmonella and other bacteria, which led to the devastating shortages the US experienced earlier this year.

To be clear, these cases are not the same as the necrotizing enterocolitis (NEC) cases that have been progressing smoothly, but they will make defendants’ woes even that much worse.

In that much more serious case, Judge Rebecca Pallmeyer recently named a 26 member Plaintiffs’ Steering Committee.

Diversity appears to be the focus, with the first female, African American co-lead counsel and others from less experienced firms.

Both cases will be in the Northern District of Illinois but will have different judges and operate under separate schedules. Stay tuned. I expect a quick settlement out of this one.

J&J Does The Right Thing Globally

Over in the talcum powder case, the big news didn’t come from the judge.

Finally, after years of delay, Johnson & Johnson have made the right decision to end all sales of all talcum powder products globally.

These products were taken off North American shelves more than two years ago, and finally, they have extended that decision to the rest of the world.

Slow Down The Dance

Johnson & Johnson’s bankruptcy scheme has slowed down the MDL dramatically.

Bellwether trials were scheduled for 2021, but never happened. Now we have to wait for a hearing by the Third Circuit Court of Appeals to determine whether the bankruptcy plan and the related litigation halt were appropriate, scheduled for September 19.

The US Department of Justice, through their US Trustee Program, submitted amicus filings in the Third Circuit in support of plaintiffs’ claims that the bankruptcy was improper, noting J&J’s ‘Texas Two Step’ maneuver was nothing more than an inappropriate method to avoid liability in the MDL.

Judge: 3M Move Premature

The 3M Earplug case is facing a similar issue, with the defendants trying to move liability to a second company already in bankruptcy, Aearo.

On August 17, Judge Casey Rogers denied a plaintiff motion requesting the court to rule that 3M is the only defendant with civil liability in the case.

I’ll try to not get too technical here because none of us have the time, but had she sustained the motion, it would have prevented 3M from shifting liability to a second company.

Her order was not kind to the strategy, describing it as a ‘duplicitous scheme’ to avoid the MDL, but she refused to give plaintiffs the win because she noted that 3M had not actually shifted liability yet. In other words, the motion had merit, but it is premature.

The Court will almost certainly revisit the issue if/when 3M makes their move. Again, we are waiting on the bankruptcy court to determine whether 3M’s strategy is appropriate.

One thing I’ll note is that the Court really needs to manage their website better, as it hasn’t been updated in more than a year.

Biden & Bad Water

The Camp Lejeune water contamination litigation is starting to get really interesting.

This week, President Biden signed the Camp Lejeune Justice Act into law, opening the door to lawsuits for injuries due to exposure as early as 1953.

This legislation, initially passed by the Senate as part of the PACT act, which made a lot of news last month due to comedian Jon Stewart’s advocacy, allows veterans and others that can prove exposure to sue the federal government, without its traditional immunities.

The case stems from contamination of the drinking water with several dangerous chemicals, including benzene.

These cases are going to be great, so if you can get your hands on them, we’ll all be winners. But they won’t be easy either, as plaintiffs will need to collect and submit medical records to support their claim.

As most of the plaintiffs’ records are likely with the VA, it should be easy, but if the records come from a private healthcare system, they might not exist any longer.

All claims must be brought in the Eastern District of North Carolina, even if the exact procedures remain to be seen.

One thing we do know is that the legislation imposes a 2-year deadline to file a claim.

One last thing…

One last case I think is worth discussing, just a bit. Plaintiffs have argued that the heartburn medicines Nexium and Prilosec causes kidney damage, and the MDL now has nearly 14,000 cases.

In a pre-trial order last week, Judge Claire Cecchi announced a schedule with the first bellwether trial to be held in November 2022.

As counsel prepares for that, the first bellwether is always one of the best guides as to how the rest of the MDL will proceed.

I have never seen a first bellwether stick to the initial schedule, so expect delays, but you never know. We might get lucky, and I hope we’ll all have a nice gift waiting for us by the time the holidays come around.

In case you missed the Roundup Roundup

We recently discussed the Roundup cases in a separate ‘Roundup Roundup’ so I won’t get into that case in much detail here. Get Caught Up Here

Things are continuing to move as they should, and I’ll make sure to send an update in our next Mass Tort Newsletter, and of course, if anything of interest pops up between now and then, we’ll try to make sure that you are the first to know.

Have a great month and as always, stay tuned…

Craig H. Alinder, Vice President

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