Mass tort litigation emerged in the 1980s from various social and legal trends. Because of their complexity, these Multi-District Litigations (MDLs), the Federal court system’s legal mechanism where many mass tort disputes are resolved (as well as similar vehicles in state courts), can take tens of thousands of attorney hours and years to resolve. But in the end, the MDL, and state equivalents, are the most efficient avenue for settling these complex and contentious cases.
Mass Torts Can Be Beneficial for All Parties
Mass tort cases are distinguished from other stand-alone cases in that many plaintiffs have experienced injuries or other losses due to common issues. However, there is often a broad range of case values. Since characteristics vary, a class action lawsuit may not be appropriate. Despite that, joining cases through a mass tort mechanism can significantly benefit all parties involved.
Mass Tort Cases in America
Some of the most significant mass tort cases currently pending in the American legal system have seen significant advances in favor of the plaintiffs over the last few years. While often de-fendants are incentivized to “delay, deny and defend,” at some point, the dam breaks – typically after bellwether or “test” trials —and the players come to the table. The following are updates on some mass tort cases of significance.
Hernia Mesh
by Brandon Smith of Childers, Shlueter & Smith, L
Defective hernia mesh implants failed in many patients, leading to severe injuries that required revision surgery. Patients have experienced organ and tissue adhesion, severe pain, bowel obstruction, infection, perforation of organs and other complications due to hernia mesh implants. As of mid-2022, more than 24,000 cases were pending against hernia mesh manufacturers in federal courts and many more in state courts across the country. There has been a tremendous amount of work in these hernia mesh cases. Below is the highlight reel on what’s happening in litigation with specific manufacturers.
Atrium Health
This defendant accounts for approximately 10-15% of the market share, depending on the specific year involved.
Covidien
This defendant accounts for approximately 10-20% of the market share, depending on the specific year involved.
Ethicon Physiomesh
A global settlement is in place for all cases filed on or before May 13, 2021. The claims administrator is overseeing this process and working through lien resolution on those cases for which clients accepted settlement awards. Other cases can still be filed, but there are extensive new requirements for newly-filed cases.
This defendant accounts for approximately 10-15% of the market share, depending on the specific year involved.
C.R. Bard/Davol Inc.
There have been three Bellwether jury trials to date. In state court in Massachusetts, the first case was a plaintiff pick selection, which was a great success. In the two federal court multidistrict litigation (MDL) trials, the defense pick case resulted in a defense verdict, and the plaintiff’s selection resulted in a verdict for the victim. New jury trials in the state court and the federal MDL are already set for later in 2023. These will provide additional insight into the Bard hernia mesh litigation overall.
Bard claims account for approximately 50-65% of the market (depending on the year), and new cases are still being filed and pursued.
Paraquat Exposure Lawsuits
Based in part on numerous peer-reviewed studies, articles and other evidence, farmers, agricultural workers and farmhands have alleged that their exposure to Paraquat caused them to develop Parkinson’s disease. Parkinson’s disease is a neurological disease that causes uncontrollable movements, rigidity and locomotive dysfunction, such as shaking, stiffness and difficulty with overall gait. While these symptoms often begin gradually, they progress over time.
Multidistrict Litigation Involving Paraquat
Over 2,700 cases have now been filed in the United States District Court for the Southern District of Illinois in front of Chief Judge Nancy J. Rosenstengel (MDL 3004). Each case alleges that the plaintiff developed Parkinson’s disease due to exposure to Paraquat, which was introduced to the market in the 1960s. Additional cases have been filed and consolidated in California state court in Contra Costa County (JCCP 5031) and the Philadelphia Court of Common Pleas.
Preparing for Initial Paraquat Trials
In the MDL, plaintiffs’ leadership, including Chaffin Luhana, are de-posing the defendants’ experts in preparation for Daubert and Summary Judgment motions in April 2023. Daubert motions determine which experts can be heard on their designated speaking matter. After the Court decides on these motions, the first Bellwether trial in the MDL is set to begin on October 16, 2023. To see a more detailed schedule as of the time of this article (subject to change) from the Court, please refer to the timeline labeled Court Schedule for the First Bellwether Trial (2023) on the following page (page 31).
California Paraquat Litigation
Separately, the California state court litigation (JCCP) is on a similar schedule, with its first Bellwether case set to go to trial on September 5, 2023. Most recently, the California state court litigation was assigned to a new judge, Judge Charles S. Treat. The former judge handling the matter, Judge Weil, left to assume the Court’s Presiding Judge position.
EPA May Be On Course to Ban Paraquat
Moreover, The Environmental Protection Agency (EPA) governs Paraquat’s registration as a chemical for use in the United States. Recently, in December 2022, the EPA informed the Ninth Circuit Court of Appeals that it plans to review and reconsider its decision to reapprove the use of Paraquat. The EPA intends to release new analyses of Paraquat’s risks and assess potential changes to its registration over the next two years.
Finally, in October 2022, the Guardian newspaper published an article referencing the defendants’ leaked internal corporate documents showing their focus on strategies to protect their Paraquat sales, refute sound scientific evidence and influence regulators. The article indicated that the defendants’ secret files revealed that these chemical companies feared Paraquat’s link to Parkinson’s disease for decades but never disclosed those fears to regulators or the public. Over 60 countries have banned the use of Paraquat. The EPA appears it may be on course to ban Paraquat in the United States and bring the plaintiffs who have Parkinson’s disease a step closer to recovery for their injuries.
Zantac Cancer Claims
Background About Zantac
Zantac is the brand name for ranitidine, a drug that was sold as a safe and effective antacid in the United States for almost 40 years. It is a Histamine-2 blocker designed to reduce stomach acid. GlaxoSmithKline (GSK) developed the drug in the late 1970s and brought it to market for United States consumers in 1983. A few years later, Zantac became the first “blockbuster” drug, generating over $1 billion in sales annually.
Over time, Zantac’s purported safety profile became so well established that it became one of the most recommended drugs for pregnant women to treat heartburn and acid reflux. It was also approved to treat infants and children.
The FDA Pulled Zantac Off Shelves
In April 2020, the FDA pulled all ranitidine-containing drugs, including Zantac and generic products, off the shelves after finding that the drug would degrade into a probable human carcinogen, N-Nitrosodimethylamine (“NDMA”). The FDA removed the products after testing showed NDMA levels would increase significantly when the drug was stored at higher temperatures, including those occurring throughout the distribution chain and associated with consumer handling. The FDA concluded that if the NDMA was “sustained [at] higher levels of exposure [it] may increase the risk of cancer in humans.” To this day, the recalled Zantac formulations remain off the market. The manufacturers have reformulated the drug with a new active ingredient and are selling it under the name “Zantac 360”.
Actions have been taken to limit consumers’ exposure to NDMA. The United States banned NDMA in the early 2000s. Currently, its only permissible use is to induce cancerous tumors for study in laboratory animals. Due to dangers associated with known mutagenic carcinogens, the FDA has also set limits on the allowable amount of NDMA and other nitrosamines in various drug products.
Initial Zantac Multidistrict Litigation Cases
The first Zantac cancer cases were filed in September 2019, after a third-party lab circulated a Citizen’s Petition asking the FDA to recall the drug after the lab found NDMA in Zantac samples. In February 2020, the Judicial Panel on Multi-District Litigation (JMPL) consolidated all federally filed Zantac cases into a Multidistrict Litigation (MDL) in front of Judge Robin Rosenberg in the Southern District of Florida. The Court appointed Roopal Luhana, Partner with Chaffin Luhana, to the Plaintiffs’ Executive Steering Committee, which helps to develop the case on behalf of the plaintiffs. The Court entered an aggressive schedule to move the litigation forward and created a Zantac MDL registry. Registry plaintiffs could defer filing their cases and later elect to become certified federal participants, as such, being bound to file their cases in the Zantac MDL.
Zantac Plaintiffs Identify Potential Cancers
In December 2021, MDL plaintiffs identified five cancers they intended to pursue in the Zantac MDL based on the strength of the scientific evidence supporting such cancers: bladder, kidney, liver, stomach and pancreatic. More than 55,000 cases in the Zantac registry at that time alleged those five cancers.
Experts in the Zantac Cases Go Head to Head
After expert reports were submitted, the parties briefed Daubert, after which the Court held Daubert hearings. On December 6, 2022, Judge Rosenberg excluded all of the plaintiffs’ general causation experts under Daubert, dismissing all federally filed Zantac cases. The plaintiffs intend to appeal the Court’s decision and must decide how to proceed with the registered cancer cases. Judge Rosenberg denied the plaintiffs’ motion to file multi-plaintiff filings, requiring each registered claimant to file an individual complaint to protect their appellate rights.
Proof Manufacturers Knew The Risk of The Drug
After Judge Rosenberg’s dismissal, it has come to light from a February 2023 Bloomberg Businessweek exposé that GSK had knowledge of the NDMA risk for 40 years. According to the article, GSK had been warned by its own scientists about the potential danger posed by NDMA. Further, according to Bloomberg, internal documents show that GSK scientists conducted the Tanner Study in 1980, which showed that NDMA formed in Zantac under certain conditions. The company did not disclose this study to the FDA until 2019.
Bloomberg’s exposé highlights that defendants knew degrading Zantac could form NDMA and that, in fact, Zantac pills were degrading in the chain of commerce. GSK’s stability testing revealed that some white tablets had turned yellow and brown with time. Instead of investigating why pills were changing color, the defendants changed the pill color to conceal the degradation. Bloomberg reports that GSK “settled on a pink coating, made of iron oxide, for the new pills. Discoloration is often a sign that tablets are degrading. In some cases, degradation can cause dangerous impurities to form.” The pills were pink when Zantac 75 mg OTC reached the market in 1996. Had the defendants fixed the degradation problem in the 1990s, they could have removed the ranitidine active ingredient, which was not done until the Zantac recall in 2020.
Zantac Litigation Moves Forward in 2023 – State Court
On March 23, 2023, a California state court admitted plaintiffs’ general causation experts, in part under the state’s Sargon standard, allowing the case to proceed to trial. All state court Zantac cases around the country are moving forward, including those in Delaware and Illinois. It is expected that the Zantac evidence will be presented to juries at trial in those venues while the Zantac MDL appeal moves forward in the United States Court of Appeals for the Eleventh Circuit.
Infant Formula NEC Cases
What Is Necrotizing Enterocolitis (“NEC”)?
Necrotizing enterocolitis is a severe gastrointestinal condition that affects premature infants. The etymology of the words are:
The mortality rate of NEC can reach 50%, depending on certain factors. In short, NEC is a devastating and life-altering disease that attacks the most vulnerable humans: premature infants.
Who Are the Defendants in These Cases?
Abbott Laboratories and Mead Johnson, the sole defendants in these cases, are the world’s two most prominent infant formula manufacturers. Their products, Similac, made by Abbott, and Enfamil, made by Mead Johnson, account for nearly 80% of the market for premature infant formula. The products in these lawsuits are formulas administered by hospital staff in a Neonatal Intensive Care Unit (NICU).
State and Federal Court Cases Filed Across the United States
At the end of February 2023, there were over 250 cases filed in state courts in Illinois. Many of these cases are multi-plaintiff, representing approximately 1,500 separate infants. Many of the cases have wrongful death claims. Madison County, Illinois (southern Illinois, just outside St. Louis, Missouri) houses about 80% of the state court cases (Judge Dennis Ruth), followed by St. Clair County (Judge Patrick Foley), Cook County (Judge Melissa Durkin) and Lake County (Judge Jorge Ortiz.)
Additionally, there are over 100 plaintiffs seeking redress in federal court. Judge Rebecca Pallmeyer of the Northern District of Illinois has been assigned to the Multi-District Litigation (MDL), where all federal cases in the United States have been consolidated.
Is This Why There Was a Formula Shortage Last Year?
No. The baby formula shortage was due to a contamination issue that temporarily closed a major Abbott Laboratories facility in Sturgis, Michigan in February, 2022. Those cases involve bacterial infections and are consolidated in federal court before Judge Matthew Kennelly in the Northern District of Illinois. The cases associated with the Sturgis, Michigan Abbott facility do not involve NEC.
Talc Baby Powder Litigation
by Brandon Smith, Childers Schlueter & Smith, LLC
Since the early 1990s, medical professionals have suggested that talc-based baby powder product labels should have a warning. However, the primary manufacturer of these products—Johnson & Johnson (J&J), has resisted.
Talc Powder Products Can Cause Ovarian Cancer
Talcum powder is a mineral consisting predominantly of natural elements. It helps absorb moisture and prevents rashes by keeping the skin dry. However, talc is mined in an area of the earth’s surface where asbestos is commonly found. Asbestos is another known cancer-causing substance. Studies have shown that talc-based baby powder may cause many cancers, including lung, ovarian, stomach and uterine.
For decades, cosmetics and personal hygiene companies sold talc products that were contaminated with asbestos.
Johnson & Johnson Knew of the Risks
In 1975, J&J released an internal memo ordering the halt of talc safety studies. They were concerned that such studies would reveal evidence that their products were potentially harmful. The company prioritized profits at the expense of the consumers’ well-being.
Talc Powder Lawsuits Against Johnson & Johnson
Some of the first talc baby powder lawsuits against J&J resulted in huge wins for the plaintiffs. For example, in July 2018, 22 women won a $2.1 billion jury verdict against the company in St. Louis, Missouri. Other significant verdicts have also been won in California and other parts of the country.
2023 Update on Talc Powder Cases
Talc powder cases continue to progress in 2023. On January 30, the United States Court of Appeals for the Third Circuit ruled in favor of talc claimants. It provisionally dismissed the bankruptcy filing by the J&J talc defendants. Specifically, the Court ruled that Johnson & Johnson could not avoid liability by using the bankruptcy system (a/k/a as the ‘Texas Two Step’) to prevent ovarian cancer patients from proceeding with talc cases in a court outside the bankruptcy process. This outcome is positive for the talc litigation overall, and something plaintiffs’ lawyers throughout the country have been toiling with for nearly two years.
If this appeal is rejected, as expected, the J&J ovarian talc litigation will be reactivated, and claims will continue through this process later this summer. More than 40,000 individual talc claims have been filed against J&J, and many more are expected by the end of 2023. While uncertainties remain, the Court’s rejection of J&J’s novel bankruptcy attempt is great news.
Camp Lejeune Toxic Water Contamination Claims
by Ben Whitley of Whitley Law Firm
Between 1953 and 1987, families and visitors at USMC Base Camp Lejeune were exposed to contaminated water that claimed many lives and continues to impact individuals today. These individuals consumed, bathed in, cooked with, cleaned with and were otherwise exposed to various cancer-causing chemicals, including TCE, PCE, benzene and vinyl chloride. Although the government was aware of these toxic chemicals in the wells used to service parts of Camp Lejeune, it failed to protect veterans, their families and civil service workers who were exposed daily.
Congress Passes the PACT Act
After decades of fighting for medical benefits and compensation for illnesses caused by exposure to toxic water, on August 10, 2022, congress passed the Honoring our Promise to Address Comprehensive Toxics Act of 2022 or PACT Act. The act allows service members and civilians who were exposed to contaminated water at Camp Lejeune and became ill to bring a claim against the federal government for compensation. Several illnesses with sufficient scientific and medical evidence link causation to the toxic chemicals found in the contaminated water at Camp Lejeune, including cancers, non-Hodgkin lymphoma, Parkinson’s disease and more.
How to File a Camp Lejeune Claim
The PACT Act allows service members, families, workers or anyone who resided at Camp Lejeune for 30 days or more during the specified years and was diagnosed with one of the specified illnesses to bring a claim against the U.S. Government. The claimant must first file an administrative claim through the Department of the Navy. These administrative filings must be completed by August 10, 2024, or the claim will be lost forever. These claims are then handled at Norfolk, VA’s Judge Advocate General (JAG) office.
Since this is not a class action or Multi-District Litigation (MDL), claimants file suit individually, meaning the Department of Navy and JAG receive and review thousands of cases. At this point, the six-month window associated with the initial administrative claims filed immediately after the August 2022 passage of the PACT Act has just been reached, yet there have not been any trials conducted. Because of the timeline of these cases, it is recommended that potential claimants look at the deadline as six months prior to the final date of August 10, 2024, to give them sufficient time to complete the process.
Slowdowns in the Camp Lejeune Filing Process
As a part of the filing process, an estate may need to be opened. Estates must be opened when there is no will to cover all of a deceased person’s assets. Those filing a claim on behalf of a deceased loved one may need an attorney to assist with opening an estate.
Due to the overwhelming number of claimants who will need to open estates in Onslow County, it is expected to take two to three months to get the estates open, which may delay the process.
Future of the Camp Lejeune Water Contamination Litigation
It is a complex and ever-evolving claims process, unlike anything courts in this country have dealt with. As of today, no trials have been conducted, and no settlements have been offered. The Department of the Navy has issued some perfection and deficiencies letters. However, so far, it still appears the Department of the Navy is overwhelmed with the filings. There are hopes that settlements will be placed on the table within the next couple of years, but there is no guarantee, so it is important for clients to be patient. Regardless of the timeline for these future settlements, claimants and their attorneys must have all proper documentation prepared to prove their case regarding illness and exposure at Camp Lejeune. In the case of a settlement process, the most likely to be initially compensated are the diseases that have already been associated with exposure to Camp Lejeune water.
The First Trials Could Begin Within a Year
Bellwether trials in the Eastern District of North Carolina will most likely be grouped within disease categories. The first trials could occur within a year.
Unfortunately, due to the comprehensive media coverage of the Camp Lejeune Toxic Water claims, there is considerable misinformation surrounding trials, settlements, time frames, benefits and whether a claimant even needs an attorney. Some of the misinformation about these cases has come from V.A. groups themselves. Being wary of receiving information from anyone other than your hired attorney is essential. If you have any questions, you should not hesitate to contact a trusted attorney.
Mass Tort Cases Continue to Evolve in 2023
These mass tort cases, Multi-District Litigations and others will continue to proceed through the American civil justice system during 2023 and well beyond. The best way to get the compensation you deserve is to work with a mass tort lawyer who is familiar with the specific litigation.
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