Weekly Mass Torts Bulletin 2021-May-31
HVAC Co.'s Bid For Asbestos Suit Coverage Revived By 8th Circuit
Daikin, an air conditioning company's asbestos litigation bid has been revived by the Eighth Circuit considering the omission of a single word from the district court that led to a faulty ruling that mandates the Continental Insurance Co. to defend Daikin.
As per the reports provided by the appeals court, the Minnesota district court impeded Daikin to prove it owed a defense from Continental as the judge decided that the company should be covered in 100 asbestos lawsuits.
U.S. District Judge Donovan W. Frank ruled that Continental is not liable to defend Daikin considering the asbestos litigation. The misplaced word 'arguably' forced Continental to defend Daikin.
As per the court documents, the origin of the dispute is due to a general liability policy that Continental provided to McQuay-Perfex from 1967 to 1982. The company underwent a series of corporate restructures and changed its name to Daikin Applied Americas Inc. The company started facing several lawsuits in 1998 alleging bodily injuries from asbestos exposure.
Asbestos is a combination of six silicate minerals, which existed for 4,000 years in silent form until manufacturers and builders discovered its unique properties and started using it as electrical insulation and building insulation. Asbestos usage has shown an undaunted increase ever since.
Unlimited and heavy exposure to Asbestos by workers and laborers involved in the construction industry, repairs of ships, specifically, during the removal of asbestos materials while renovation, repairs, or demolition face higher risks. Also, workers involved in the manufacturing of asbestos products such as textiles, friction products, insulation, other building materials, automotive brake, and clutch repair work who inhaled and ingested Asbestos, unknowingly or knowingly, are/were at risk.
Asbestos is one of the main ingredients in baby powder, considered cosmetic when used in makeup and body powders, which require very little federal oversight. The U.S. Food and Drug Administration is alerting consumers about certain cosmetic products due to the presence of asbestos.
Despite several studies highlighting the cancer risk, the FDA does not require Baby Powder warnings on talc-based product labels to be updated. Moreover, J&J has also refused to add one, willingly.
FDA has confirmed that Popular makeup products Claire’s contain Asbestos. Claire’s is known for creating the store first came under fire in 2017 when FDA confirmed the presence of the toxin in three Claire’s products, as well as several products from Justice, another tween, and children’s store.
Both the companies Daikin and Continental stated that the insurer will not hesitate to defend the suits if they do not comply with McQuay-Perfex's old policy. Judge Frank's founding in August 2019 stated that Continental can defend the asbestos suit only if Daikin Applied has been sued as a successor to McQuay-Perfex.
The panel declined to decide if Continental should defend the suits. Even the lower court issued a declaration that Continental does not owe to defend Daikin.
Vaping Makes Teens & Adults Vulnerable To Asthma: Study
As per the new research by the Child Health Evaluative Sciences program at The Hospital for Sick Children in Toronto, vaping among teens and young adults can have worsening health conditions and can increase the risk of asthma or asthma attacks.
American Thoracic Society conducted a virtual conference where the study was presented which highlighted the links between e-cigarettes and asthma. The researchers are yet unsure about e-cigarettes causing asthma, but vaping surely worsens asthma over time.
Canadian Community Health Survey's data from 2015 to 2016 and 2017-2018 was used by the researchers, which included more than 17,000 people aged 12 and up.
The reports stated that more than 3% of the participants used e-cigarettes in the last 30 days, which equals to 1 in 32 people from the survey. It also concluded that people using e-cigarettes even smoked traditional cigarettes.
Some other findings of the research include that 13% of participants had asthma and e-cigarette users have 19% chances of having asthma. The research even stated that existing and former smokers have a 20% and 33% higher risk of having asthma, respectively. The study even stated that the e-cigarette users have poor mental health as compared to the people who do not vape.
Vaping is most common and popular among teens and young adults over the past decade and the manufacturers are to be blamed for the teen vaping epidemic. JUUL is one of the biggest marketers and manufacturers of e-cigarettes. It has widely disrupted schools and local municipalities by leaving young adults addicted to nicotine.
Essure Procedure Complications Continue To Grow
The United States Food and Drug Administration (FDA) released data on May 17 regarding Essure birth control implant stating that there is a significant growth in the number of complications suffered by the women after undergoing the implant procedure.
Earlier, Bayer announced a $1.6 billion settlement to resolve thousands of Essure lawsuits and two years ago the company even recalled the product from the U.S. market.
The data provided by the manufacturer states that the company reported at least 33,097 cases which included 19 deaths due to the complications of the Essure procedures. Federal regulators warned that even though some of these incidents may be duplicates, the long-term risks associated with the implant cannot be ignored as cautioned by the data provided.
Bayer marketed the Essure procedures as safe and effective for permanent birth control. The implant had flexible coils which are inserted into the fallopian tubes during the procedure which prevented insemination. Later, the company removed the device from the market considering the thousands of lawsuits claiming the painful and debilitating injuries to the users.
Conceptus Inc., a subsidiary of Bayer AG, developed Essure which is a Class III device for permanent surgical sterilization in women. Essure was approved by the Food and Drug Administration (FDA) on November 4, 2002. The device has two metal coils made from polyester fibers, nickel-titanium, stainless steel, and solder which are placed in fallopian tubes to induce fibrosis and block the fallopian tubes to prevent fertilization. Since 2002, it is estimated by Bayer that 750,000 women have received the Essure IUD.
Essure's warning label had noted that the device's nickel can result in allergic reactions, such as itching and hives but in reality, women were found to suffer permanent injuries including autoimmune diseases, perforated organs, and severe pelvic pain. From November 4, 2002, through May 31, 2015, around 5,093 reports of problems connected to Essure were filed with FDA.
While the device’s manufacturer claims Essure is safe and effective, thousands of women disagree. They say the metal coils caused their injuries such as perforation of the fallopian tube, neurological damage, and severe pain. In some cases, women died from complications.
Bayer submitted data to the FDA which reported the most common problems because of Essure including pain, perforation of organs, pregnancies, heavier periods and even breaking down of the parts in the body.
Worldwide 750,000 women implanted the device of which 70% of the women are from the U.S. It is expected that Bayer will face more Essure litigations in the future.
Bayer's $2B Proposal For Roundup Lawsuits Settlement Rejected
Bayer's proposal of a $2 billion Roundup class-action settlement to prevent future claims from the weedkiller users has been rejected by the U.S. district judge.
Earlier, Bayer announced a $9 billion settlement to resolve the lawsuits faced by the company along with a $2 billion settlement to cover the future claims over the next four years. The agreement is yet to get court approval.
Bayer's proposal would prevent new complaints for four years and a panel of juries will investigate the link between Roundup and cancer during this period. It will also restrict users from seeking punitive damages who reject the settlement.
On May 26, U.S. District Judge Vince Chhabria rejected the preliminary approval of the proposal by stating that the agreement is unfair for the users who have not yet filed lawsuits against the weedkiller. The court even highlighted that the agreement provides a window of four years to file the claim, but non-Hodgkin’s lymphoma can be caused in 10-15 years.
The judge even raised concern over the exhaustion of the funds before the victims reporting the claims as the company has not yet put a label warning on its product to alert the users about the cancer risks.
Roundup, one of the most commonly and widely used weed killers, contains Glyphosate as one of its main ingredients. Glyphosate is a systemic and broad-spectrum herbicide that was patented by a U.S. company, Monsanto, in 1970. Bayer acquired Monsanto on June 7, 2018.
After the patent for Monsanto expired in the U.S. in 2000 and outside the U.S. in 1991, many other manufacturers started marketing their glyphosate products leading to a substantial increase in sales and global usage. The chemical name of glyphosate is N-(phosphonomethyl) glycine, and it blocks an enzyme in the plant, which helps in preparing amino acids and proteins, thus, killing the plants within a few days.
Initially, the users used Roundup as a non-selective herbicide just like paraquat and diquat. People attempted to use glyphosate-based herbicides to row crops, but crop damage problems restricted its use. In 1996 commercial introduction of a glyphosate-resistant soybean resulted in increased use of Roundup throughout the United States. Monsanto's "Roundup Ready" became the best-selling product of the company following the advertisement and the sales increased by around 20% per year between 1990 and 1996.
In 1996, the introduction of a glyphosate-resistant soybean resulted in the growing use of Roundup throughout the United States. Sales of Roundup increased around 20% per year between 1990 and 1996. The product was used in over 160 countries by 2015. It was mostly used on corn, soy, and cotton crops that are genetically designed to resist the chemical. But as of 2012, crops like almond, peach, cantaloupe, onion, cherry, sweet corn, and citrus have been treated by the glyphosate in approximately 5 million acres of California.
Monsanto was accused of false and misleading advertising of glyphosate products in 1996, resulting in a lawsuit by the New York State attorney general. The company claimed that the spray-on glyphosate-based herbicides were non-toxic, safer than table salt, environment friendly, and biodegradable. Later, Monsanto removed the misleading advertisement to settle the case and avoid higher penalties. Some contractors faked the tests conducted on glyphosate along with other pesticides. Craven Laboratories in 1991 and Industrial Bio-Test Laboratories in 1970 conducted toxicology tests by fraudulently analyzing samples for residues of glyphosate. Monsanto has even admitted that the studies have since been repeated.
The court added that the settlement is unfair for the users and the company must submit a new proposal that will ensure it protects the Roundup users who have not yet been diagnosed with cancer but might get it in the future. The company has agreed with the court and said that it will focus on making a suitable agreement that will comply with the court's guidelines.
More than 120,000 Non-Hodgkin lymphoma lawsuits are registered by former users of Roundup against Bayer. The company is even expected to face new claims in the coming years where the users claim of being diagnosed with cancer due to the glyphosate present in the weedkiller.