What Happened In The MassTorts World Last Week? 2020-Nov-09
New Orleans In-Person Asbestos Trial Ends In $10.3M Award
Last week, a jury with the Louisiana Civil District Court for Orleans Parish awarded $10.3 million to a plaintiff who was diagnosed with mesothelioma and had claimed the reason as exposure to raw asbestos while working as a longshoreman in the 1960s.
According to the lawsuit filed, the plaintiff, after graduating from high school, worked as a longshoreman at the Port of New Orleans from 1964 until 1968, where he unloaded shiploads, which included burlap bags of asbestos. The plaintiff testified in the lawsuit that the bags would often tear and spread dust within the ship’s hold. The suit also noted that the plaintiff also experienced second-hand asbestos exposure when he helped his mother hand-wash his father’s dusty work clothes, as his father also worked at the same port.
Hon. Ethel Simms Julien presided the lawsuit, and the trial, which was the first in-person asbestos trial to take place in New Orleans since the COVID-19 pandemic, lasted for three weeks.
The attorneys representing the plaintiffs asserted that the defendants knew the dangers of asbestos but failed to warn their workers. They also noted that in the shipping industry, African-American workers like the plaintiff and his father often do the dirtiest and dangerous jobs.
The jury deliberated for approximately two-and-a-half hours and held the three defendants liable for the plaintiff’s injuries. The three defendants named in the lawsuit are Ports America Gulfport Inc. (f/k/a Atlantic & Gulf), Cooper T. Smith Stevedoring Co. Inc., and South African Marine (Safmarine).
The Louisiana jury awarded $10,351,020.70 in compensatory damages to the plaintiff at the conclusion of the trial.
Study Indicates E-Cigarettes Use Often Unnoticed By Parents
A study over the use of e-cigarettes was published in the journal Pediatrics' November edition, indicating that vaping often goes unnoticed by parents as compared to the use of traditional tobacco cigarettes.
The data was collected from an ongoing household cohort Population Assessment of Tobacco and Health (PATH) study among U.S. youth (aged 12–17) and adults. An analysis was done to understand the knowledge or suspicion of parents or guardians over their child’s tobacco use, which was categorized as cigarette only, electronic cigarette only, smokeless tobacco only, noncigarette combustible only, and poly use.
The study also examined the rules of using tobacco set forth inside the home and whether parents discussed with youth about not using tobacco as predictors over the use in the following 1 to 3 years.
The results indicated that the use of traditional tobacco cigarettes was known by the parents, whereas they were less informed whether their teen vaped or used smokeless tobacco products.
The study further noted that the parents hold influential roles in preventing youth tobacco use. Teens are less likely to initiate tobacco smoking when parents don't smoke and intervene actively, prohibiting tobacco use in the house.
Researchers from the University of California, San Francisco, warned that vaping goes unnoticed by parents, and the overall data indicated that it is increasing among teens, with 1-in-5 high schoolers vaping.
The vaping epidemic is growing in the U.S., and several lawsuits have been filed against JUUL and the manufacturers of other e-cigarettes, alleging life-long nicotine addictions, severe lung damage, and other injuries.
JUUL Labs Inc. is currently facing more than 1,100 lawsuits and class action claims, each claiming that the manufacturer created false and misleading advertisements for JUUL, plaguing the U.S. with nicotine addiction problems in recent years. JUUL litigation is centralized under MDL. No. 2913 in the U.S. District Court for the Northern District of California.
Pradaxa Maker To Settle Thousands Of Bleeding Risk Cases
Boehringer Ingelheim Pharmaceuticals Inc. filed a brief in Connecticut Supreme Court indicating that it has reached a global settlement to resolve 2,935 lawsuits brought over by patients alleging failure to warn about the bleeding risks associated with its blood thinner Pradaxa.
The agreement will resolve nearly all the cases that are pending in the Judicial District of Hartford. There are around 2,865 on the state's litigation docket, as per the filing, which also includes two cases filed by plaintiffs who have appealed over the initial judgment favoring the manufacturer.
The manufacturer filed the joint motions with the two plaintiffs and asked the court to put a stay on their cases until the settlement concludes or if the two parties opt-out of the settlement plan.
Out of the two, one was the fourth bellwether case, in which the plaintiff alleged that he suffered gastrointestinal bleeding after using Pradaxa. A jury granted a verdict favoring the plaintiff, which was partly denied and returned to Boehringer by a trial judge over its bid to set the verdict aside.
The second is a case filed by a plaintiff who alleged that Pradaxa contributed to a bleeding injury he suffered in 2014. In March, a judge awarded summary judgment in favor of Boehringer after finding the case was preempted.
According to the filing, the manufacturer noted that whether the settlement is finalized, fails to materialize, or the plaintiffs opt-out, a status update will be provided by August 2021.
Bayer AG and Johnson & Johnson’s subsidiary Janssen Pharmaceuticals, manufacturers of another popular blood thinner drug Xarelto, are also facing similar allegations, including hemorrhagic stroke, deep vein thrombosis (DVT), and other serious complications. The federal cases are consolidated under MDL No.: 2592 before Judge Eldon E. Fallon. in the Eastern District of Louisiana.
California's Virtual Talc Trial Against J&J Ends In Mistrial
California state court's virtual cosmetic talcum powder trial against Johnson & Johnson (J&J) ended in a mistrial after the plaintiff's health worsened, making him unable to communicate with his attorneys and resulting in his death.
The trial involved a 54-year-old man who had alleged that he developed mesothelioma after being exposed to asbestos and talc present in J&J's Baby Powder. Last week, Alameda County Superior Court Judge Stephen Kaus indicated that the plaintiff entered hospice due to his rapidly deteriorating health condition and was not expected to recover. Hon. Kaus informed jurors, via Zoom, that he would have to declare a mistrial.
The death of the plaintiff would likely change the nature of the case to involve wrongful death claims. The trial was being closely monitored as it was the first virtual talcum powder cancer trial since the COVID-19 pandemic outbreak.
Last month, the pharmaceutical giant agreed to pay over $100 million to resolve about 1,000 lawsuits over its talcum powder products brought by at least three law firms, which include Simmons Hanly Conroy, Simon Greenstone Panatier PC, and the Lanier Law Firm.
Currently, J&J is facing more than 20,000 Baby Powder and Shower-to-Shower lawsuits. Most of the lawsuits are consolidated under MDL No.: 2738, whereas some are pending in state courts in Pennsylvania. Lawsuits are also pending in a California coordinated proceeding as a part of Judicial Council Coordinated Proceeding No. 4877.
Actavis' Motion For Summary Judgment In TRT Drug Case Denied
Last week, U.S. District Judge Matthew F. Kennelly, presiding the Testosterone Replacement Therapy (TRT) products liability litigation, denied Actavis Inc.'s motion for summary judgment over one of its testosterone drugs case, stating that the company had a responsibility to warn apart from the U.S. Food and Drug Administration (FDA)-approved package insert.
According to the lawsuit filed, the plaintiff was prescribed the testosterone drug Androderm in July 2015, and he suffered from a stroke in August 2015. The plaintiff alleged that the drug's packaging did not have a warning of the risk of cardiovascular side effects, which was mandated by the FDA and his physician was also not aware of it.
The manufacturer filed a motion arguing that as per the Florida law, the company only needs to include an updated packaging insert, and the physician is a "learned intermediary" who should be warning the patients about the associated risks.
In a November 4 order, Judge Kennelly ruled that "there is ample support for the conclusion that Florida courts would reject Actavis’ narrow interpretation of the duty to warn.” The judge also noted that the company had other means to warn physicians, such as through letters and other communications.
The judge further asserted that the FDA's mandate to provide additional warning gives credence to the case, and some courts have held that a manufacturer can be held liable if adequate warnings are not provided to the doctors.
The lawsuit was part of the Illinois multidistrict litigation, MDL No.:2545, that settled the bulk of claims in 2018. However, the plaintiff had opted out of that settlement.
MI Judge Refuses To Dismiss A Biomet Hip Replacement Case
Last week, Judge Hala Y. Jarbou of the U.S. District Court for the Western District of Michigan denied dismissing a lawsuit brought by a woman against Biomet Orthopedics LLC over its allegedly defective hip implant on the grounds that the claim was not time-barred.
The lawsuit, filed in 2016, stated that the plaintiff received the implant in 2006 and started suffering from pain in 2012. The suit noted that initially, the pain began in her right quad, which later shifted over to the hip by 2014. The plaintiff went to a doctor who referred her to a physical therapist.
The therapist believed the reason for causing the pain was implant surgery, which might have weakened the plaintiff's tendons and muscles, and there were no other clear causes, such as a recent fall. The plaintiff underwent revision surgery in 2014 and removed the implants.
In the November 2 opinion, the judge indicated she did not find the claim for fraudulent misrepresentation time-barred, rejecting Biomet's argument that the lawsuit was filed after Michigan's three-year statute of limitations. The opinion also noted that the plaintiff's blood samples showed slightly elevated levels of cobalt and chromium, indicating issues with the implant.
The judge stated that "in light of multiple potential causes, there is a genuine dispute as to when the implant allegedly began to inflict pain on the plaintiff. In other words, a reasonable juror could find that the hip implant did not harm the plaintiff before July 14, 2013, if they found the implant defective at all."
The lawsuit alleges the manufacturer knew for more than five years that its M2A-Magnum Hip Replacement System is likely to fail earlier than expected, and the metal ball and socket bearings have a tendency to release metal debris through wear and tear.
3M Co. Cleared In Asbestos Case Involving Its Respirator
The Washington Superior Court for King County jury reached a defense verdict for 3M Co., in an in-person trial held at the reconfigured Bellevue Convention Center, which is now being used for civil trials, over a lawsuit that alleged the company's respirators for failing to protect a Puget Sound Naval Shipyard worker from asbestos exposure.
The court papers indicate that the plaintiff worked at the shipyard's insulation shop from 1972 to 1982, during which he used to clean asbestos materials that were discovered, broken, or spilled at the shipyard called asbestos 'spills.'
The plaintiff used an 8710 mask to protect him from the harm, which he alleged that the company knowingly misrepresented the effectiveness for use with asbestos. The plaintiff was diagnosed with his pleural mesothelioma in November 2019, after retiring from the shipyard in 1995.
According to the October 30 special verdict form, the Washington state jury said that "3M did not supply respirators that weren't reasonably safe as designed, and that wasn't reasonably safe because adequate warnings or instructions were not provided." The jury concluded that the company's 8710 respirator was reasonably safe as designed and contained adequate warnings or instructions.
The company and its subsidiary Aearo Technologies are facing nearly 150,000 earplugs lawsuits, each claiming that hearing loss injury was caused by its defective 3M earplugs that were standard issue by the military between 2003 and 2015.