Weekly Mass Torts Bulletin 2021-June-28

Florida Federal Jury Sustains $1.7M 3M Lawsuit

A service member's $1.7 million hearing loss settlement in 3M combat earplugs has been sustained by a federal jury in Florida by stating that the company is responsible for the plaintiff's hearing loss.

The jury announced that the company was 62% responsible for the service member's hearing loss whereas the plaintiff was at 38% fault for the same. The jury even notified that the company failed to warn the earplug users about the defect in the product.

The plaintiff of this trial, who was a former infantryman and M240 machine gun operator, said that while training at Fort Lewis in Washington state in 2005 and 2006, he experienced stifled hearing while using the earplugs. In 2009, he suffered from a hearing loss in both ears and tinnitus following the incident.

The plaintiff was about to head to a mission in Iraq post the training; hence, the training was held inside buildings to mimic the city environments that the troops would encounter during the mission. The mission would involve huge explosions and loud firing from advanced ammunition that forced the service members to use earplugs to deal with the situation.

A spokesperson for 3M responded by saying that the earplugs have always been safe and effective to use and even the jury agreed about it that helped the company to win the last bellwether trial. The company will explore more appellate options for the remaining jury verdict and the company will continue to defend its products.

It is the company's second loss in three rapid-fire bellwether trials. Around 235,000 service members have filed claims against the company with similar allegations that the earplugs were ineffective in combat environments resulting in hearing loss.

More than 640 injury lawsuits are centralized before Judge M. Casey Rodgers in the Northern District of Florida against Minnesota-based 3M as part of multidistrict litigation (MDL No. 2885; In Re: 3M Combat Arms Earplug Litigation).

$3.3M Verdict Against Bard In IVC Filter Suit

A woman was awarded a $3.3 million verdict by a Wisconsin federal jury in an IVC filter lawsuit against C.R. Bard that claimed a part of the filter became embedded in her heart.

The jury held the company responsible for not issuing an appropriate warning of the risks associated with the device. The plaintiff had implanted the filter in 2013 as a preventive measure for varicose veins. The jury found that the woman was not at all liable for her fracture and the complete blame is to be put on the manufacturer for negligence and design claims.

As per the court documents, the woman started experiencing abdominal pain just after three days of the implant as the filter had tilted and one strut had perforated her inferior vena cava, as indicated in the CT scan. A year later x-ray revealed that the filter was even more tilted and had fractured two struts, with one strut in the inferior vena cava and the other in the right ventricle of her heart.

In 2014, a surgeon tried to remove the filter but did not succeed, but four years later another surgeon managed to remove the filter and a strut, but one of the struts remained in her right ventricle.

The woman is suffering from extreme anxiety about the possible harm she might suffer due to the remainder of the strut in her body. She would require to undergo open-heart surgery to get the strut removed from the right ventricle, which could result in significant morbidity and death.

Bard argued that considering the separate finding on liability, U.S. District Judge William M. Conley should not reward punitive damages to the plaintiff as there is no clear evidence about the manufacturer being negligent about the product.

The attorney for the plaintiff said that the verdict was for compensatory damages and in the past 90 days he along with other attorneys obtained three jury verdicts in Texas, Oregon, and Wisconsin in similar vein lawsuits.

The plaintiff even argued that three different juries in three different states have consistently claimed that the Bard IVC filters caused serious harm to the users due to their unacceptable safety profile.

Bard faced three bellwether trials in the MDL in 2018 where one of the trials ended up awarding $3.6 million to the plaintiff.

PCPC Trade Association Excluded From Talc Powder Lawsuits

Personal Care Products Council (PCPC) has been dismissed by the U.S. District Judge as a defendant in talc powder cancer lawsuits that alleged the organization's connection with talc powder products causing cancer.

PCPC, the trade association was also alleged by the plaintiffs in the talc powder lawsuits that it promoted the talc-based products as harmless even though the products were contaminated with cancer-causing substances.

U.S. District Judge Freda L. Wolfson dismissed PCPC from the group of litigation considering the trade association's motion for summary judgment. The jury even stated that the plaintiffs need to prove that PCPC is a seller or manufacturer of talc-based products.

The judge said that PCPC does not have control over the ingredients used in the cosmetic products as it is a voluntary trade association. It is neither liable to warn its members about the product's safety.

Judge Wolfson decided to dismiss PCPC from the lawsuit considering the final pretrial proceedings trials which are expected to start next year. The judge's decision will help with certain evidence and testimony in future litigations.

The outcome of these trials would not be forced on other lawsuits but will have a significant impact on the settlement amount to be paid by Johnson & Johnson to resolve the claims.

Currently, Johnson & Johnson(J&J) faces more than 30,000 lawsuits against its Baby Powder and Shower-to-Shower products with similar allegations that the manufacturer miserably failed to warn the users about the risks linked to talc and asbestos particles that are present in the company's products. Exposure to talc and asbestos has resulted in the development of ovarian cancer in the women who used J&J's talc products.

Attorneys Penalized In 3M Combat Earplugs Litigation

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.

Judge Reverses Mandatory Vaccination Order In Opioid Trials

An Ohio federal judge has issued a fresh order that states the potential jurors in the national multidistrict opioid litigation are not required to be vaccinated against COVID-19 to attend the court ruling.

Earlier, U.S. District Judge Dan Aaron Polster ordered that all the jurors of the upcoming opioid trials need to be vaccinated on a mandatory basis, but a bid from various pharmacy defendants including Walgreens, CVS, and Rite Aid compelled the judge to reverse the decision.

The judge considered the pharmacies' argument that the vaccination rates vary by race, gender, and political views that might result in delayed vaccination for the jurors, which could eventually result in a delay in resolving the lawsuits as many jurors would miss the rulings. The pharmacies even argued that if the jurors are limited to only those who are fully vaccinated, it could impact the outcomes of the trials.

Even though the mandatory vaccination clause has been eliminated, the judge has encouraged the attorneys and the witnesses to get vaccinated at the earliest. As per the motion presented by the pharmacies, 42.6% population of the state has been fully vaccinated as of June 16, according to the report of Ohio's Department of Health.

The first pharmacy bellwether trial will begin on Oct. 4, and the jury selection for the same will begin on Sept. 29 and continue through Oct. 1, as stated in the judge's order. The trial will focus on two Ohio counties' claims of the public nuisance created by the pharmacy chains like CVS and Rite Aid, who ignored the suspiciously bulk orders of opioids.

Earlier, the focus of the opioid MDL was on drugmakers and distributors but has recently shifted to pharmacies, as the companies are working on settling the claims against them.