What Happened In The MassTorts World Last Week? 2018-Oct-15

C.R. Bard Prevails In The Fourth IVC Filter Bellwether Trial

The fourth bellwether trial involving design defects claims brought by a couple over of the inferior vena cava filter (IVC filter) concluded with the Arizona federal jury ruling in favor of Becton Dickinson & Company’s subsidiary C.R. Bard.

The woman underwent treatment for deep-vein thrombosis and pulmonary embolism in 2011 when she was implanted with C.R. Bard’s G2X Blood vessel filter. The device was reported to be a failure, and she got it surgically removed in 2014 after suffering severe internal injuries due to the device breakage. Her case went to trial last month when the federal jury dismissed her claim that there was a possibility of a heart arrhythmia condition in the future. The case became the third bellwether trial as its predecessor case was dismissed over the late filing of the claims.

The first bellwether trial against Bard concluded with the jury awarding plaintiff Sherr-Una Booker $ 3.6 million in damages, while the second bellwether ended in a defense verdict. The manufacturer faces more than 3,800 lawsuits related to design flaws in the blood clot filters. Similar cases are consolidated as a part of a multidistrict litigation (MDL No. 2641; In Re: Bard IVC Filters Products Liability Litigation) for coordinated pretrial proceedings, overlooked by Judge David G. Campbell, in the United States District Court District of Arizona.

Zimmer Hip Replacement Lawsuits Allowed Centralization

In a transfer order issued on October 3, 2018, the U.S. Judicial Panel on Multidistrict Litigation (JPML) declared to consolidate and centralize all federal Zimmer Hip replacement lawsuits before one judge for coordinated pretrial proceedings in the Southern District of New York to be overseen by U.S. District Judge Paul A Crotty.

In June, a set of plaintiffs requested JPML  to centralize the lawsuits over Zimmer's VerSys, M/L Taper, and M/L Taper with Kinectiv Technology. Zimmer opposed the centralization in a motion filed last month and argued that the creation of a formal MDL is unnecessary.

At least 28 product liability cases are pending against Zimmer-Biomet, Inc. in different U.S. District Courts over design defects of the company's metal-on-metal hip implant components. All the lawsuits raise similar complaints that the hip replacement system is defectively designed and tend to fret and corrode, leaving metal pieces inside the patients' tissue and blood, forcing the patients to eventually get the device removed. The MDL 2158 (In Re: Zimmer Durom Hip Cup Products Liability Litigation) overlooked by Hon. Susan D. Wigenton in the District of New Jersey is overlooked by Hon. Susan D. Wigenton in the District of New Jersey.

NY Court Denies A Talc Supplier's Summary Judgment Motion

In an order issued on October 5, 2018, the New York Supreme Court for the New York County denied a summary judgment motion to Whittaker, Clark & Daniel in a talcum powder lawsuit related to hazards of asbestos exposure.

The Supreme Court judge asserted that the plaintiffs submitted sufficient evidence to support the claims over inadequate warning about cancer effects of asbestos-laden talcum powder. The order stated proof of shipment from the defendant to a cosmetic talcum powder company is enough to hold the talc supplier liable in the case. The judge further clarified, "the facts provided by the plaintiff raise genuine triable issues of fact requiring that the motion is denied.”

Talcum powder manufacturers are facing hundreds of product liability cases across the nation over allegations that asbestos presence in talcum powder cause mesothelioma and ovarian cancer. The defendant companies are Johnson & Johnson, Colgate-Palmolive, Imerys Talc North America, Vanderbilt Minerals.

Court Favors Boehringer In Third Pradaxa Bellwether Trial

A Hartford Superior Court ruled in favor of Boehringer Ingelheim Pharmaceuticals in the third bellwether trial involving claims by a man who suffered bleeding due to the alleged use of blood thinner medication Pradaxa.

The trial for claims brought by the plaintiff in 2016 concluded after a three-week deliberation, and it is the third straight win for Boehringer. The first two trials held in March 2018 and May 2018 also ended in a defense verdict. The next bellwether trial involving claims of health hazards of Pradaxa will begin in February 2019.

Pradaxa was initially approved by the U.S. FDA to be used as a blood thinner, but reports suggest it causes serious injuries and gastrointestinal bleeding, heart attack, stroke, brain hemorrhage, kidney bleeding, and death. Judge Herndon, who overlooked Pradaxa class action lawsuits, recommended a shutdown of the multidistrict litigation (MDL No. 2385) in December 2017 after dismissing pending cases in the docket.

Informational Hearing Held Over Bard's Hernia Mesh Lawsuits

In a pretrial order issued on October 3, 2018, the U.S. District Court for Southern District of Ohio conducted a case information session regarding C.R. Bard's polypropylene hernia mesh lawsuits pending in the multidistrict litigation.

The topics covered included an introduction to the Bard hernia mesh products linked to the litigation, a summary of the litigation, an overview of the ongoing litigation, and certain medical and scientific issues linked to Bard's polypropylene hernia mesh products. The court indicated the session was non-adversarial in nature. Plaintiffs and defendants counsel members were allocated 45 minutes each to present their statements and were prohibited from calling on any witnesses.

NY Court Allows Motion To Dismiss Jenkin Bros. Asbestos Case

In an order issued on September 26, 2018, the New York Supreme Court for New York County dismissed an asbestos lawsuit filed against Jenkins Brothers Valve Company on jurisdiction grounds. The order found that the plaintiff failed to establish the link between a sales transaction in New York and the subsequent asbestos exposure in Georgia. The dismissal was granted until the plaintiff files a new action for the same claims against the defendant within six months.

Asbestos exposure while working in mines and manufacturing plants have led to the diagnosis of mesothelioma in several workers. Lawsuits filed against the owners of the mines allege failure to adequately warn about the hazards of asbestos exposure.

First Roundup Trial Set To Begin on February 25, 2019

In a pretrial order submitted on October 3, 2018, the U.S. District Judge presiding over all Roundup lawsuits filed against the weed killer manufacturer Monsanto, outlined deadlines ahead of the first trial to be held in the federal litigation. The jury selection in the first case would commence on February 20, 2019, followed by the first trial which has been scheduled for February 25.

As per the order, case-specific discovery for each plaintiff will be finished by November 20, and expert discovery will be concluded by December 20. The parties are required to file any challenges to the admissibility of expert testimony and motions for summary judgment at the most by January 3, 2019.

Monsanto currently faces about 800 product liability cases filed by farmworkers, landscapers and other consumers who were allegedly diagnosed with Non-Hodgkins lymphoma (NHL) due to glyphosate exposure in Roundup. Similar lawsuits are consolidated as a part of a multidistrict litigation (MDL No. 2741; In Re: Roundup Products Liability Litigation), presided over by Judge Vince Chhabria, in the U.S. District Court of  San Francisco.

J&J Scores in a NJ Asbestos Linked Cancer Trial

A New Jersey federal court on Thursday cleared Johnson & Johnson of a product liability case filed against it by a plaintiff. The deliberations went on for less than a day in New Brunswick, New Jersey, over allegations that asbestos presence in the company's talcum powder was the reason for her mesothelioma.

J&J faces more than 10,000 product liability cases across the U.S., all with the same assertion that the talcum giant knowingly concealed ovarian cancer and mesothelioma risks associated with its talc products. The company has been charged with cancer lawsuits for several years now. The first trial in April concluded with the jury verdict of $117 million to a man who suffered mesothelioma, and in May J&J was ordered to pay $25.7 million to a woman who was diagnosed with mesothelioma. Both these verdicts are currently under appeal. Four trials after that ended in mistrials as the jury declared a deadlock or because in some cases the plaintiffs passed away before the trial.  In July this year, a Missouri jury declared a massive verdict of $ 4.7 billion favoring 22 women who were diagnosed with ovarian cancer due to asbestos contamination in the talcum powder.

Federal JPML Denies GDD Lawsuits Centralization Motion

In an order issued on October 10, 2018, the U.S. Judicial Panel on Multidistrict Litigation (JPML), rejected a centralization motion filed by the plaintiffs involved in the lawsuits filed against the manufacturers of gadolinium-based MRI contrast dyes.

The allegations stated in the lawsuits indicate some common factual issues associated with the production of the dye, the regulatory approval, labeling and marketing of GBCAs and the dye's alleged potential to cause gadolinium retention in patients with normal kidney function. The jury remained unsure whether the centralization move would help in improving the judicial efficiency and prove to be convenient to the parties involved in the litigation. The panel stated, "we find movants have failed to demonstrate that any common questions of fact and law are sufficiently complex or numerous to justify centralization. In particular, the injuries alleged in each case appear to be highly plaintiff-specific, and the actions involve GBCAs manufactured by one or more of four different defendant groups, involving different formulations.” However, the plaintiffs are allowed to file a new bid for centralization provided they overcome the Panel's objections. The centralization was filed in June, which was disapproved by all six defendants – Bayer, GE Healthcare, Bracco Diagnostics, Mallinckrodt Inc., Guerbet LLC, and Liebel-Flarsheim Company, and McKesson Corp.

All pending  Gadolinium Deposition Disease (GDD) lawsuits would move forward in the U.S. District Court, where they were initially filed. Reports suggest additional claims would be filed in the coming months against gadolinium manufacturers.