Settlement Agreements Update
Settlement Agreements Update – by Attorney Jeff Keiser.
We’ve been promising some big news in some of these cases for a few months, and today, there is a lot more going on than status conferences and Daubert hearings.
We have settlement agreements to discuss, and maybe even a new case or two to start planning for. No matter what, we have some big news to discuss, so let’s get right into it.
Talcum Powder
The talcum powder cases have been lingering for years, mostly based on Johnson & Johnson’s bankruptcy strategies, but there may be an end in sight.
On May 1, J&J announced a settlement agreement to resolve all ovarian cancer cases related to talcum powder use for nearly $6.5 billion. That’s the good news.
The bad news comes when you read a bit deeper. In exchange for this settlement, plaintiffs are being asked to not oppose a third attempt to go through the ‘Texas two-step’ in bankruptcy. This time, J&J is proposing $11 billion to resolve “all litigation,” nearly 20% more than the last time they tried dancing with the bankruptcy court.
One other wrinkle in this settlement is the duration. J&J is asking for 25 years to resolve these ovarian cancer cases but have not detailed exactly how much is available now and how much should be held in reserve for future cases. As such, estimating individual plaintiffs is impossible currently.
This settlement looks even better considering the defense verdict in the Florida bellwether on April 18. We will know more in 90 days, when we know whether 75% of plaintiffs (or plaintiff attorneys) agree to the terms. There has been some chatter about the big firms opposing the deal, but nothing more than that.
Zantac
And back from the dead – Zantac! You’ll likely remember that the Zantac MDL was effectively dismissed in January 2023 following the Court’s Daubert ruling rejecting plaintiffs’ experts. At the time, I thought this was essentially the end of the litigation, but even I can admit when I am wrong.
In April, Sanofi settled 4,000 Zantac cases that were proceeding in state courts across the country for $100 million (or $25,000 per plaintiff). Now, no one will be excited about this kind of payoff, but it’s better than nothing. Of more concern is how Sanofi is approaching these settlements. They are limiting recovery to a short time when Sanofi marketed Zantac and will defend against any weaker claims.
Even more, this agreement does not resolve the cases in Delaware, where 20,000 claims against Sanofi remain in play. And obviously, this settlement does not affect GSK, Pfizer, or any other defendant.
A total of 75,000 cases remain in Delaware (against all defendants), and we’re expecting a Daubert order within weeks to find out exactly how much money we can expect in that court.
Could it be the death knell of the entire case? Of course. But I am hopeful the Delaware court will be more open to plaintiffs’ science.
Camp Lejeune
Motion practice is the current status of Camp Lejeune, but we can’t ignore important deadlines rapidly approaching.
As of April 21, there have been more than 190,000 administrative claims filed with the Navy, but only 1,740 complaints filed in the EDNC. Even though these claims have been processing for well over a year, a mere 40 claims (0.021% of claims filed) have been resolved by settlement.
The deadline to file an administrative claim is August 10, 2024, so get ready. What seemed a long way off is now rapidly approaching, and we don’t expect any extensions.
The US Supreme Court has already noted the validity of North Carolina’s statutes of repose, so this is really it!
The MDL is proceeding smoothly, as discovery matters are taking the majority of the Court’s time.
Suboxone
And just a quick note on the Suboxone cases that were recently centralized. Some big firms estimate that there could be 100,000 of these cases out there, but I think the number is lower.
I’m seeing a trend in a lot of plaintiff firms where they are requiring substantial dental work to have been performed before accepting a case. And even more concerning, the statutes of limitations may be problematic.
The warning came out June 2022, and in those states with 2-year statutes, these cases are dead – soon.
If you’re looking at these cases, make sure to do a SOL analysis before spending time or money on them.
JPML
We mentioned a couple cases in front of the JPML last month, and the orders are a bit disappointing.
The JPML rejected centralization in the hotel industry sex trafficking litigation, for the second time. These cases will remain individual for now.
On the other hand, they did find sufficient similarity in the toxic baby food autism litigation, creating MDL 3,101 under Judge Jacqueline Scott Corley in San Francisco to handle pre-trial discovery.
The MDL is getting a slow start with just 25 plaintiffs at the time of writing, but we expect it to grow. The potential plaintiff pool is large, and damages are potentially substantial.
That’s it from HQ for now. We’ll keep you posted on any developments as they happen.
Craig H. Alinder, Vice President