Weekly Mass Torts Bulletin 2021-Oct-04

Calif's Third Virtual Asbestos Trial Gets Rolling

On Monday, California's third virtual Asbestos trial kicked off with an argument by a former Navy sailor's counsel that the plaintiff was exposed to cancer-causing asbestos, installed on a Navy aircraft carrier, which was supplied by Metalclad.

According to the court documents, the lawsuit was filed by a former Navy sailor and his wife in September 2019. The sailorman joined the Navy at the age of 21 and worked for several months on the overhauled Navy aircraft carrier USS Bonhomme Richard at Long Beach Naval Shipyard. The suit claims that during his years of service, he worked with boxes containing asbestos-laden insulation and was breathing in the fibers without knowing about the cancer risks.

David L. Rancilio of Maune Raichle Hartley French & Mudd LLC, representing the couple, in his opening arguments asserted that mesothelioma takes years to detect, and the sailorman was diagnosed with it last year. Rancilio further claimed that the insulation, supplied by the now-defunct Metalclad Insulation LLC between 1965 and 1967, did not include warnings requested by the Navy on its boxes, even though the supplier was aware of the health risks associated with it.

Metalclad Insulation LLC is the only remaining defendant in the case. Frank K. Berfield of Dentons, representing the defendant, argued that the supplier isn't responsible for placing warnings on manufacturers' products. He further added that the Navy should have warned its servicemen as it was aware of asbestos dangers in the 1960s, and the asbestos was not only present in the insulation but also in other materials, including gaskets cut from asbestos sheet packing.

Similarly, California's first virtual trial over a $70 million asbestos case ended in a defense verdict for Honeywell at the conclusion. The second involving retired Navy Rear Admiral and Metalclad is being judged by a 12-member jury that opened its deliberations last week. The current virtual trial is presided by Alameda Superior Court Judge Jeffrey Brand.

In the U.S., the earliest known asbestos-related lawsuit was filed by a woman in 1929 in the Newark (NJ) Federal Court. Along with her, at least 15 other individuals with asbestos-related claims were trying to get compensation. Unfortunately, the woman's lawsuit was thrown out in 1934, but it brought forth the wave of many such lawsuits. One of the biggest companies targeted by these lawsuits was Johns-Manville Corporation, which filed for bankruptcy in 1982. Asbestos MDL No. 875 was created in 1991 in the Eastern District of Pennsylvania and is one of the largest and longest-lasting MDL.

Philadelphia Talcum Powder Verdict In J&J's Favor

Johnson & Johnson (J&J) has been cleared of liability in a lawsuit where a woman accused the company of failing to warn about the health risks associated with its talcum baby powder product.

The lawsuit made similar claims brought by women throughout the United States who accused the usage of J&J's talcum powder developed to cause ovarian cancer and other injuries to them.

The current verdict of Philadelphia results from last month's verdict in Illinois, where the cancer-diagnosed woman was awarded $26.5 million. The verdict was eventually overturned.

J&J is firm on defending its talcum products by stating that the evidence and studies reveal it is safe to use. However, in October 2019, 33,000 bottles of baby powder were recalled from the U.S. market after being tested positive for asbestos presence in it that causes cancer.

J&J faced numerous verdicts in talcum powder cancer trials in 2018 and 2019 that included a landmark trial, where 22 Missouri women diagnosed with ovarian cancer were awarded $3.9 billion in damages. The company faced punitive damages as well for withholding information about the presence of asbestos in Johnson’s Baby Powder and Shower-to-Shower Powder.

U.S. District Judge Freda L. Wolfson is overseeing all the talcum lawsuits centralized in the District Court of New Jersey. The judge has even established a "bellwether" program where a group of lawsuits will be considered for early trial dates in April 2022. It will help to prevent repetitive responses of certain evidence and testimony throughout the litigation.

Earlier, New Jersey state judge refused to block Johnson & Johnson's (J&J) so-called Texas Two-Step move that will prevent settlements for the plaintiffs diagnosed with cancer due to J&J's talcum powder products.

The plaintiffs allege that the company intends to conduct a fraudulent transaction. The judge overseeing the lawsuit said that the court cannot proceed before evaluating the fraudulent transaction claims made by the plaintiffs.

As per court documents, J&J would use the Lone Star State's "divisive merger" statute that will split the talc liabilities into a separate entity, helping the company to file for bankruptcy and keeping the productive assets in a different entity.

The plaintiffs even accused that the company would pay comparatively less amount if allowed with bankruptcy option. The brief even claimed that the thousands of women who used talc products would continue to suffer and die without getting justice because of the move.

The court's ruling stated that the narrative provided by the plaintiff's lawyers is baseless without any legal support, and it is a move to compel J&J to settle the plaintiffs' claims. J&J continues to defend its products by stating them as safe for use.

Missouri Judge Announces Talc Verdict In J&J's Favor

A federal judge of Missouri announced the talcum powder verdict in Johnson & Johnson's (J&J) favor where three women accused the company's product of causing ovarian cancer.

The verdict came after a Philadelphia jury earlier awarded a verdict in J&J's favor. The company is also looking forward to filing for Chapter 11 bankruptcy that will move the talc liabilities into a separate entity.

The attorneys for the plaintiffs stated that J&J continued to sell the talcum products even after being detected to cause cancer. J&J, on the other hand, claimed that careful consideration of the facts and science provide by their in-house studies reveals that the products are safe for use and did not cause cancer.

The counsel of the women said that they are confident of their win in upcoming similar litigations against J&J. Company's attorney said that the three women's claims are undermined as all of them suffer from different types of cancers, and it is unlikely that the baby powder could cause all the three types of cancers.

The women were also a part of the group of women who appealed in court against the company's rumored plan to use a bankruptcy maneuver.

The talcum lawsuits are centralized in the District Court of New Jersey before the U.S. District Judge Freda L. Wolfson, who will oversee the litigation for coordinated discovery and similar outcomes.

A bellwether program has also been scheduled for April 2022, where a group of lawsuits has been selected for the trials.

Earlier, an Illinois jury granted a talcum trial verdict in favor of Johnson & Johnson by rejecting the allegations of the family members of the woman who died of ovarian cancer.

As per the court documents, the family members of the woman sought $50 million compensation by alleging that J&J's baby powder and Shower to Shower products are dangerous and resulted in ovarian cancer for the woman.

The 69-year-old woman died in September 2016, eighteen months after being diagnosed with ovarian cancer.

A spokesperson for J&J said in a statement that the verdict displayed careful consideration of the science and facts presented by the attorneys. He even added that the company deeply sympathizes with those who are suffering from cancer and seek answers for the same.

The plaintiff's attorney stated that there is strong evidence to conclude that genital talc leads to ovarian cancer, and the decision will not prevent them from seeking justice for several other women who are victims of the disease because of J&J's negligence and greed.

The verdict came in favor of J&J after a three-week trial in St. Clair County, Illinois.

Earlier, an executive of J&J failed to appear before the court as a witness for cross-examination in a talcum lawsuit. J&J recalled 33,000 bottles of talc-based powder in 2019, and in May 2020, discontinued its sale throughout the U.S.

J&J's talc products are one of the most popular cosmetic products throughout the country. For the past 25 years, over 12,00 women and their families have filed lawsuits against J&J alleging that the company's baby powder causes ovarian cancer.

Asbestos in talcum powder is the major cause of cancer as it is harmful to human health and can cause lifelong ailments. A study even concluded the direct linkage of talc powder to ovarian cancer.

The company is even set to settle $26 billion in the opioid MDL as ordered by the federal judge. The company will pay the settlement amount with three major pharmaceutical distributors, Cardinal, McKesson, and AmerisourceBergen.

Cherokee Nation Gets $75M To Deal With Opioid Crisis

Three major drug distributors namely AmerisourceBergen, Cardinal Health and McKesson will pay $75 million to Cherokee Nation over six-and-a-half years to resolve opioid-related claims.

In April 2017, Cherokee Nation sued the distributors for selling opioids in the black market which is against the Cherokee laws and also had negative consequences on its communities.

The attorney general of Cherokee Nation said that the settlement would help to deal with the deadly consequences of the opioid crisis that has ruined the health of the tribe members. It would also help to execute mental health treatment facilities and other programs that would speed up the recovery process of the people affected because of the crisis.

The tribe is the first among the governments across the country that has sued Big Pharma. The tribe even has pending claims against Walmart, Walgreens and CVS which the tribe intends to pursue through trial.

There are many such claims across the U.S. from state and local governments, as well as other tribal nations. It also includes an MDL in Cleveland, Ohio, but the tribe's settlement is independent of all the other claims.

Earlier, three distributors along with drug maker Johnson & Johnson reached a $26 billion settlement for the states and counties across the country for fueling the opioid crisis, but Cherokee Nation is not part of the agreement.

In September 2021, Johnson & Johnson (J&J) agreed to pay a partial settlement of around $1.3 million to $3 million to Orange County for fueling the opioid epidemic that resulted in several deaths due to opioid addiction.

The officials representing the county said that the final settlement amount would depend on the number of counties accepting the agreement. The amount will be higher if the maximum number of counties sign the agreement.

J&J will make the first payment in the settlement in February. The funds would be used to tackle the opioid addiction in the county. It will even fund the opioid treatment programmes and support services that are designed to help the people struggling with addiction problems.

The spokesperson for Orange County said that the opioid manufacturers and distributors were aware of the addictive qualities of the drugs, yet marketed and sold them for profits. The settlement would not bring back the lost lives, but it will surely give some sigh of relief to the affected people and their families.

Orange County witnessed a 25% growth as compared to last year in the death rate due to opioid overdose. Last year, opioid overdose resulted in over 70,000 deaths in the U.S. To date, 500,000 deaths are linked to opioid overdose in the country.