Weekly Mass Torts Bulletin 2021-July-12

Zantac Multidistrict Litigation Narrowed By Florida Judge

The U.S. Racketeer Influenced and Corrupt Organizations Act (RICO) and medical monitoring claims in the Zantac litigation have been dismissed by U.S. District Judge Robin Rosenberg.

RICO and medical monitoring claims, which the judge dismissed, sought compensation for diagnostic tests that detect cancer. The judge even excluded the distributors and pharmacies, including Rite Aid and CVS, from the litigation and personal injury claims.

The court's ruling came as the federal court wants to focus the litigations more on the manufacturers, including Boehringer Ingelheim, GlaxoSmithKline, Sanofi-Aventis, and Pfizer Inc. A spokesperson for Pfizer said that the company is pleased with the judge's ruling.

The plaintiffs' attorney said that a vast majority of the claims would be in motion, and the ruling will impact 100,000 people who suffer from cancer caused due to the exposure to carcinogen NDMA present in Zantac.

The attorneys even argued that manufacturers including GlaxoSmithKline, Boehringer Ingelheim, and Sanofi tried to cover up the dangers and risks associated with Zantac usage even though there were sufficient pieces of evidence against the heartburn drug being linked to NDMA.

In 2019, the U.S. Food and Drug Administration identified that certain ranitidine medicines such as Zantac include a possible carcinogen, known as N-nitrosodimethylamine, or NDMA, post to which Sanofi removed Zantac from the market.

U.S. District Judge Robin L in Florida is overlooking the Zantac lawsuits under MDL No: 2924. Currently, more than 1,400 lawsuits are pending from the Zantac users contracted with cancer, and at least 70,000 more claims are recorded in the court against the drug.

Walmart Hit With Discovery Sanctions In Opioid MDL

Walmart is now listed as one of the defendants in the multidistrict litigation (MDL) in Ohio with allegations that Walmart’s pharmacies improperly distributed opioids fueling the nationwide epidemic.

The MDL includes more than 2,000 opioid-related claims from the state, local, and tribal governments. The special master, David Cohen, who is overseeing the MDL discovery, ordered new declarations of Walmart witnesses by sanctioning the company for insurgence with a longstanding discovery order. The order states the defendants need to provide relevant documents from other opioid cases, which are not part of the consolidated cases.

Walgreens, CVS, Walmart, and other pharmacies requested to remove the 2019 motion that included cases outside of the MDL. The companies argued that ruling from the 6th U.S. Circuit Court of Appeals in April 2020 was an overly broad request for discovery. However, in June 2020, the judge refused to withdraw the request.

Walmart provided a PowerPoint presentation to the U.S. Department of Justice (DOJ), which included documents covered under the order. The judge stated that Delaware's opioid litigation is related to Walmart's prescription policies, and shareholders are seeking for access to its records.

The judge stated that Walmart provided illogical explanations of the order to tackle the production of the documents and use it to delay or avoid complying with the court orders.

The spokesperson for Walmart said that the company is following the rules of the court and will continue to defend the litigation. However, the recently sanctioned order has only worsened the matters for the retailer in the litigation.

In October 2017, National Prescription Opiate Litigation MDL No. 2804 (In Re: National Prescription Opiate Litigation) was formed overlooked by U.S. District Judge Dan Aaron Polster.

FDA To Decide The Fate Of JUUL Vaping Products

Federal regulators are looking to discontinue the sale of JUUL vaping pods from the market, considering the nicotine addiction among the teens and illicit product marketing.

JUUL tried to convince the U.S. Food and Drug Administration (FDA) by submitting a 125,000-page application that highlighted the benefits of e-cigarettes stating that vaping pods help smokers quit smoking. The company even mentioned in the application that those benefits surpass the teen vaping epidemic caused because of the JUUL pods.

JUUL’s extensive marketing of vaping pods is linked to an increase in nicotine addiction among teens across the country. The high levels of nicotine in JUUL pods often result in long-term health problems among the users.

Manufacturers of tobacco products such as e-cigarettes, pipe tobacco, cigars, and hookah tobacco that were on the market as of August 8, 2016, are required to submit applications to the FDA before May 12, 2020, as ordered by a U.S. District Court in Maryland in July 2019. Later, the deadline was revised to September 9, 2021, considering the ongoing COVID-19 pandemic. The application will include the marketing strategies that the manufacturers will implement to prevent underage use of vaping pods.

The final deadline for the FDA to decide the fate of the JUUL pods is September 9. Currently, the company faces more than 4500 vaping lawsuits from school districts, municipalities, and individuals. All the lawsuits allege the company of fueling nicotine addiction among teens, young adults, and prior non-smokers by implementing deceptive marketing strategies through social media and other marketing platforms.

Earlier, the FDA forced JUUL to discontinue most of the vaping pod flavors from the market that resulted in huge losses to the company. The company shut down operations in 14 countries as the sales dropped by about $500 million. The company earlier had a market value of $40 billion, which is now reduced to $5 billion. Experts believe that if the FDA rejects JUUL's application, it will eventually lead to the end of JUUL Labs as a company.

It is reported that JUUL has bought the May/June issue of the American Journal of Health Behavior for $51,000 to get 11 studies published which will highlight the benefits of vaping products. The company has even paid an additional amount of $6,500, so the users can get free access to the studies.

JUUL pods were first introduced in 2015, and within a short period, the products gained popularity among teens and young adults across the United States.

Earlier, a federal jury announced a landmark settlement that orders electronic cigarette giant Juul Labs Inc. to pay $40 million to North Carolina in litigation that accuses the company of fueling teen vaping.

It is first of its kind agreement with a state. North Carolina Attorney General Josh Stein sued the company by placing allegations that Juul’s unfair and deceptive marketing strategies encouraged the use of vaping products among the youth.

The agreement states that the vaping manufacturer Juul will no longer advertise its products to anyone under 21 in North Carolina. It also states that the company should limit the sales of its products by selling only behind counters at retailers who have ID scanners that will detect the customer's age.

A spokesperson for Juul said that the company is already experiencing a decline in the sale of its products post the discontinuation of advertising and social media promotion. The company is effectively looking forward to combating underage vaping by taking necessary measures.

Juul faces individual lawsuits from several states, and since February 2020, a group of 39 state attorneys general is cooperatively investigating the company’s marketing and products. The company even faces hundreds of personal injury lawsuits, which include claims from customers and families of young people affected because of vaping. All these lawsuits are consolidated before Judge William H. Orrick in a California federal court.

Consolidated 3M Lawsuits To Go For Trial In January 2022

The U.S. District Judge has agreed to consolidate three different claims of  3M Combat Arms earplug lawsuits into one trial, which will begin in January 2022 before a federal jury.

The current consolidated trial, set to begin in January 2022, is similar to the first bellwether trial of combat arms earplugs held in April 2021, where three military veterans were awarded $7.1 million. The company provided defective earplugs to the service members, which resulted in the court's ruling against it. The second trial was ruled in favor of 3M in May 2021, and the third trial resulted in a $1.7 million verdict against the manufacturer.

Each of the plaintiffs in the lawsuit claims 3M was aware of the defective design of the earplugs but still sold it to the U.S. government without fair guidelines about the usage of the products. The earplugs could not seal the ear canal effectively and fall out from the service members' ears.

These bellwether trials will prevent repetitive findings and discussions in the large number of 3M lawsuits that are about to go before the federal judge.

U.S. District Judge Casey Rodgers has already scheduled two bellwether trials that will go before separate juries in September and October 2021 before the current trial, including the three veterans.

Currently, 3M faces more than 230,000 product liability lawsuits with similar allegations that the earplugs were defective and resulted in hearing loss, tinnitus, and other ear problems to the U.S. service members. All the 3M lawsuits are consolidated before U.S. District Judge Casey Rodgers as a part of an MDL in the Northern District of Florida.

Earlier, the U.S. District Judge presiding over 3M Combat Arms earplugs litigation has penalized two attorneys representing the manufacturer for disregarding jury orders on presenting evidence at the trial.

Last week, a jury awarded $1.7 million in damages to the U.S. Army veteran who suffered hearing damage due to the defective earplugs. According to the jury's final judgment, 3M is responsible for $1.05 million damages from the total settlement amount.

The verdict is the second major loss for 3M. Earlier in April, three veterans were awarded $7.1 million in damages against 3M. Although the manufacturer was able to defend the verdict in the second trial that commenced in May, the company is required to yet prove the safety of its product in future trials.

Judge Rodgers issued a sanction order considering the most recent 3M trial as the attorneys violated court orders during the closing arguments. The order briefed that two of the attorneys should pay $10,000 and $2000 as a penalty.

Judge Rodgers stated that one of the penalized attorneys presented the statistics as facts during closing arguments which is not acceptable during court ruling. She even asked the attorney to rectify the situation, but the attorney ignored it completely.

Later in a conference, Judge Rodgers said that it was the first time in 19 years that she had to punish the attorneys for disregarding her orders. 
U.S. District Judge Casey Rodgers is overlooking all the 3M lawsuits in the U.S. District Court for the Northern District of Florida where the litigation is centralized for coordinated discoveries and non-repetitive response of juries to certain evidence.

Currently, there are more than 230,000 product liability lawsuits against the manufacturer claiming that 3M Combat Arms earplugs are defective, and resulted in tinnitus, hearing loss and other ear problems to the U.S. service members.