Special Update: CPAP & Infant Formula Litigation

January 31, 2023

Special Update: CPAP & Infant Formula Litigation

Special Update: CPAP & Infant Formula Litigation – Mass Tort Special Report from Legalcalls.com by Attorney Jeff Keiser.

Once again, we attended one of the great webinars put on by Levin Papantonio Rafferty and Mass Torts Made Perfect.

These can be such great sources of information and we thank the presenters for their time and knowledge on these very tricky cases. Even more, they are pushing hard for CLE hours on these webinars, so it’s the epitome of a win-win.

This session was less of a deep dive on one case and more of an update on several, so let’s get to the good stuff.

NEC Baby Formula

Andy Childers, co-Lead attorney of MDL 3026, discussed what has been going on in the NEC baby formula litigation.

The headline here is that direct filing is allowed, and a plaintiff profile form is all that will be required for most cases in the MDL, at least initially.

The only cases where this does not apply are those working in the bellwether process. This will make life easier for plaintiff counsel and the court.

We’re just getting into the bellwether trial process, and discovery for those cases is ongoing. The first bellwether trial is scheduled for March 11, 2024, with most of this year being dedicated to discovery.

The bellwether cases were selected late last year, with four picks for each side, plaintiff and defense, and an additional four random picks made by the court. After fact discovery, plaintiffs and defense will each get to choose two for trial.

These NEC cases are tragic for a number of reasons, making them potentially high value cases.

With easy filing and good science behind it, this may be one of the more exciting cases this year.

CPAP Machine Litigation

Over in the Philips CPAP machine litigation, we’re in a similar situation. The MDL is still ramping up, and we’re in the midst of initial disclosures.

The good news is that general causation is looking great for us. The manufacturers knew that the PE-PUR sound abatement foam was genotoxic and cytotoxic, meaning it was potentially cancer causing, and they did nothing, for years.

Specific causation may be a bit more of a challenge. Troy Bouk of Levin Papantonio Rafferty noted the importance to not only have a solid diagnosis, but also the due diligence to rule out other potential causes.

In other words, if a plaintiff comes in with a solid lung cancer diagnosis, make sure that they did not work around asbestos or other carcinogenic toxins.

These cases will mostly be based in head, neck and lung cancers, but other diseases like COPD and asthma are also implicated.

Timing is also something to remember – you must file your plaintiff profile form within 45 days of filing the short form complaint in the MDL.

Camp Lejeune

And finally, in Camp Lejeune, we’re dealing more with expectations than reality at this point in time.

As you should know by now, the administrative claims process through Navy JAG gives them a 6-month period to respond, and we’re still inside that window. In other words, the JAG has until February 11, 2023 to respond to the first claims made since passage of the PACT act.

According to Brian Barr, shareholder at Levin Papantonio Rafferty, there have been more than 15,000 claims filed, and not one of them has received an offer to settle.

The JAG has not been completely silent, sometimes asking for additional information, sometimes delivering a Letter of Perfection indicating that the claim submitted was complete. But without a single offer on the table, it looks like these cases will end up needing litigation, at least for now.

Fees Discussed

Attorney fees in this case were also discussed, with a focus on pending legislation attempting to limit recovery.

There are now three bills being discussed on the subject, and there may be some appetite to resolve the matter through legislation.

While we have nothing to fear as to Senator Sullivan’s absurd limitation of 2% for filing a claim and 10% if it goes to court, the votes may be there to limit attorney fee recovery to 25-33%.

Stay tuned for more on this most important subject.

Plan For Trial

It doesn’t look good for MDL centralization in this case, meaning that we should all plan on trying individual cases if it comes to that.

In the Eastern District of North Carolina, they’re planning for a lot of trial activity, apparently discussing a plan to split the cases amongst judges based on the illness diagnosed.

A lot of this case is still being organized and we’ll have to see what the parties (and the Court) can end up agreeing to.

Excellent Source of Info

These webinars are great. All the above info was covered in an hour if you can believe it. They’re free, and yes, CLE credits may be available.

We know it’s only January and bringing up CLE this early seems strange but imagine a December when you aren’t scrambling for those hours.

We’ll be back with more of these as they come out because they really are great sources of information. If you ever feel like attending, their schedule and the signup form can be found at https://mtmp.com/connect/

Craig H. Alinder, Vice President

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