What Happened In The MassTorts World Last Week? 2019-Jan-07
Opioid Trial Update: Cabell, Huntington Cases Selected Next
According to an order issued on December 31 by federal Judge Dan Polster, lawsuits filed by Cabell County Commission and City of Huntington are the next to go for trial among hundreds of other opioid lawsuits claiming extreme side-effects of the prescription pill overdose.
Huntington attorney Paul T. Farrell Jr. indicated the parties representing both the governments are expected to meet this week to decide on the trial date, and evidence exchange for both cases would begin on January 25, 2019. These are the second set of opioid lawsuits to head for trial after Judge Polster selected lawsuits filed by Cleveland and the Ohio counties of Cuyahoga and Summit for a September 2019 trial. Cabell County and Huntington were the first local governments to sue opioid manufacturers, distributors, and pharmacies in 2017 alleging breach of duty to detect, monitor, and report an alarming rise in the prescription drug sale.
The lawsuits alleged more than 86 million opioid medication was sold in Cabell County between 2006 and 2014 while the county's total population was about 96,000. Cabell County initially filed a lawsuit against the "Big Three" and H.D. Smith Wholesale Drug Co., CVS, Rite Aid, Walmart, Kroger and Walgreens in 2017. However, the county also filed an amended complaint in April 2018 targeting seven manufacturers and companies including Purdue Pharma, Actavis, Cephalon, Janssen, Endo, Insys Therapeutics and Mallinckrodt over illegal marketing of the opioids. Huntington filed a lawsuit against the "Big Three" drug distributors - AmerisourceBergen, Cardinal Health and McKesson - and former Dr. Gregory Donald Chaney.
More than 1,600 opioid lawsuits have been filed with similar allegations across the U.S. which are consolidated into a multidistrict litigation MDL No. 2804 (In Re: National Prescription Opiate Litigation) overlooked by Judge Polster in the Northern District of Ohio.
Earlier, the city of San Francisco and the state of California has sued drug providers Purdue Pharma for fraudulent practices and causing public health epidemic. The attorney for the state and the city alleged the drugmakers and distributors of deceived marketing of opioids by stating that it is safe for use. U.S. District Judge Dan Polster of the federal court in Ohio will oversee the lawsuit along with the other 1,200 similar opioid lawsuits filed by various cities, counties, and states.
According to the Disease Control and Prevention (CDC)’s National Center for Health Statistics, opioids such as oxycontin, oxycodone, and fentanyl lead to respiratory disorders, heart complications, addiction, and overdose deaths. The center has even declared fentanyl as the most dangerous drug used in the U.S.
An Ohio federal judge overseeing 2,500 cases accusing several drug companies and pharmacies of fueling the opioid epidemic is asking Cabell County and Huntington attorneys to scale back their outlook in a case in which attorneys said they will seek at least $500 million, as he works to push several cases toward trial.
The lawsuits argue that manufacturers, distributors, pharmacies, and pharmacy benefit managers breached their duty to monitor, detect, investigate, refuse and report suspicious orders of prescription opiates coming into the states over the past several years. A duty the lawsuits claim companies have under the Controlled Substances Act of 1970.
It seeks costs to help get people into recovery, as well as regaining money spent by the governments in response to the opioid epidemic. The plaintiffs also are seeking money for future recovery.
The opioid crisis has also put a toll on the Grande Prairie city budget indirectly. The real estate market in Grande Prairie has gone down along with the decrease in citizenry productivity. This has led to eroding of the tax base and income in the city. The lawsuit has been filed against reputed pharmaceutical companies like Apotex and Johnson & Johnson, who are opioid manufacturers. The defendant list also includes Shoppers Drug Mart and Jean Coutu.
Opioid addiction in Northeast Ohio became the cause of death for thousands of deaths. The death rate was due to the high use of heroin, fentanyl, and other painkillers. The lawsuits also state that the huge amount of pills dumped in the market increase the addiction to these painkillers, as people chose cheaper heroin on the streets over prescription painkillers.
A case for the opioid crisis that began in 2014 was the first in history where local government entities sued Big Pharma for causing painkiller addiction. The case brought by Oklahoma in 2019 was the first to go for trial where Johnson & Johnson was ordered to pay $572 million in an opioid lawsuit. Later, the verdict was reduced to $465 million, for which the appeal is still pending.
Federal health officials warned that opioids account for nearly 70% of all drug overdoses. 3,100 deaths were accounted for due to opioid overdoses in 2013 and the number has surpassed 36,000 by 2019.
Jury To Decide the Merits of Januvia Pancreatic Cancer Cases
According to a December 26 ruling by the Illinois First District Appellate Court, the jury would determine whether the federal regulators would have allowed Merck to include pancreatic cancer warnings to Januvia's labels.
The ruling upholds a previous Cook County Judge's decision in denying summary judgment motion in two Januvia lawsuits which were filed by family members of four plaintiffs who died due to pancreatic cancer while under Januvia treatment. The lawsuits claimed Merck was aware of the risks linked to the diabetes drug and yet failed to send out sufficient warnings to patients and the medical community. Merck refused to take responsibility for failure-to-warn claims, stating that the FDA would not have allowed adding pancreatic cancer risks as a warning label on the drug label and sought for summary judgment in 2013. U.S. District Judge Anthony Battaglia granted summary judgment in 2015 and tossed all the filed cases under MDL No. 2452, finding that the claims were preempted by the federal law. However, those cases were reinstated last year by a California Court of Appeal, 2nd District. In its opinion, the Illinois Appeals Court told the issue needs to be put before a jury as part of a trial.
More than 900 Byetta, Januvia, Victoza, and Janumet lawsuits are filed in several state and federal courts. The litigation was centralized in 2013 in the Southern District of California for coordinated pretrial proceedings.
Sonoma City Council To Ban Roundup Use in City Parks
The Sonoma City Council on December 17 voted to accept the city staff's recommendation to ban Roundup and other glyphosate-based weed killers in all of the city parks in California and indicated their plan to ban such herbicides from all city property including street meridians, parking lots, and the Mountain Cemetery. The move was taken considering the rising amount of evidence pointing to the risk of non-Hodgkin's lymphoma (NHL) and other health issues related to contact with glyphosate.
On the same day, groundskeepers in Chatham, Massachusetts were asked to refrain from using glyphosate-based products. The restricted use and ban of the herbicide is a result of a farm bill passed in December last year which controls the agricultural laws and funding every five years. The bill issued by the U.S. House of Representatives contained a provision which would have stopped the communities from banning roundup. However, 60 officials from 39 communities and 15 states objected in a letter to the conference committee and asked to remove the provision in September. In absence of the provision, the communities would face few legal barriers to ban the weed killer in their respective localities. Even outside the U.S., a growing number of countries are taking steps to keep Roundup out considering a 2015 report by the World Health Organization’s International Agency for Research on Cancer (IARC) which added glyphosate as a carcinogen under Proposition 65. Belgium has already banned Roundup use and in close lines, France and Germany are looking forward to phase out Roundup use within the next three years.
Monsanto faces about 10,000 Roundup lawsuits filed across the U.S. involving claims that Roundup use led to NHL or other forms of cancer.
Monsanto is one of the major manufacturers of Roundup and has a brief history of legal troubles. Roundup has toxic ingredients including glyphosate which can cause cancer and other health problems. There are various lawsuits against the company regarding the Roundup problems across the United States (U.S.). On November 20, the company challenged a $78 million penalty, which was a result of a lawsuit filed by a cancer-stricken man from California. The man alleged that Roundup is the main reason for him being affected by cancer.
U.S Judge Limits Evidence in the Upcoming Roundup Trial
In an order issued on December 3, U.S. District Judge Vince Chhabria agreed to split an upcoming Roundup trial scheduled for February 25 into two phases as per Monsanto's request. The order issued restricts the lawyers representing a plaintiff from introducing evidence that the company allegedly attempted to influence the regulators and manipulate public opinion.
The plaintiff, who used Roundup in his Sonoma County property, was diagnosed with non-Hodgkin's lymphoma in 2015. As per Judge Chhabria's order, the plaintiff lawyers would be allowed to furnish evidence of Monsanto's negligent conduct only if they prove glyphosate as the reason for the plaintiff’s cancer in the first phase of the trial. This is to be followed by a second phase of the trial to determine Bayer's liability. Bayer maintains glyphosate is safe to use, denying it causes cancer in humans.
The plaintiff’s attorneys initially opposed the proposals to bifurcate the trial on the grounds that their scientific evidence about glyphosate’s carcinogenic nature was linked to Monsanto's alleged unfair conduct. Bayer has asked the jury to avoid some of the causation evidence being presented during the first phase of the trial, specifically a finding by the World Health Organization’s cancer unit that glyphosate is "probably carcinogenic" as it has no basis in science. Judge Chhabria expressed that he would decide at which point during the trial the findings announced by the WHO must be introduced. The company has welcomed the court's decision to focus on the science factor in the first phase of the trial. The federal judge's order also applies to two other so-called bellwether trials, which would help determine the range of damages and settlement options for similar cases pending in the litigation.
Bayer faces more than 9,300 Roundup lawsuits in state and federal courts across the country over allegations that it causes non-Hodgkin's lymphoma. Roundup cancer lawsuits are consolidated into multidistrict litigation (MDL No. 2741; In Re: Roundup Products Liability Litigation) in the Northern District of California.