The field of mass torts continues to evolve and 2020 will be no exception.
One trend we are seeing in mass torts concerns the extension of the statute of limitations, noted in several areas below, in our 2020 mass tort outlook.
3M Combat Arms Earplugs
In late August 2019, defense and plaintiff firms entered into a tolling agreement, with an early- September deadline for then-existing claims; it is being overseen by U.S. District Judge Casey Rodgers, who presides over the MDL in the Northern District of Florida (Pensacola). A rolling schedule to execute additional claims is now in place. It is expected that Judge Rodgers will create a bellwether process to handle currently pending claims in the 3M earplug litigation.
Several large settlements were awarded in 2019 in in the Johnson & Johnson Baby Powder litigation. One award went to 22 Missouri women for $4.7 billion. Given the ubiquitous nature of this product, the claimant pool will be large and easy to validate. J&J already faces nearly 17,000 asbestos/talc cases in the coming year. Epidemiologists are refining their models to develop more accurate forecasts of potential litigation in this matter. Settlements could be in the $10 billion range. In a recent trial California trial, J&J received a defense verdict agreeing that the J&J shower product did not cause a woman’s cervical cancer.
J&J’s subsidiary, Janssen Pharmaceuticals, is in the cross hairs of litigation for Risperdal, a medication alleged to cause gynecomastia (breast growth in males). A punitive verdict of $8 billion was handed down in October. There are currently more than 13,000 Risperdal lawsuits pending against J&J. The Supreme Court of Pennsylvania is adopting a new case management order dealing with an extension of the statute of limitations in Risperdal cases, enabling more claimants to bring forth a suit.
Opioids- Janssen, Teva, Purdue
In regards to opioids, J&J has offered to pay $4 billion to settle its opioid litigation. Although Teva Pharmaceuticals’ settlement with the State of Oklahoma is not a global resolution, it signals what they are willing to pay in other cases. Purdue has filed for bankruptcy and the Sackler family has proposed a $3 billion settlement out of their personal funds, which is getting a lot of pushback, given recent evidence of the family’s move to pull many billions of dollars out of the company. Litigation is on hold until April 8, 2020, about more than 2600 lawsuits by injured parties pending
Owner Bayer AG had proposed a settlement between $6 and $8 billion last summer to resolve all lawsuits, which now number over 43,000. At least six cases are scheduled to be heard nationwide in 2020 unless Bayer settles; the final settlement figure is assumed to run into the many billions. However, given the overwhelming numbers that could be reached to settle, the defense is taking a really harder position, which could eventually extend the road to reach a settlement. Additionally, many plaintiffs have begun to file cases into the state court of Illinois outside of the MDL so the numbers against Monsanto might be larger than those being claimed.
Two cases that were scheduled to go to trial in California in mid-January have been postponed for six months. A federal court case is scheduled for February before Judge Vince Chhabria, who has thousands of Roundup cases consolidated before him for pre-trial information exchanges and test trials in U.S. District Court, Northern District of California (San Francisco).
As with the Risperdal litigation, there is movement to extend the statute of limitations (SOL) in child and other sex abuse cases, removing protections around alleged abusers and institutions. Twenty-four states and the District of Columbia passed SOL reform laws in 2019, which could affect the number of lawsuits filed in 2020 against abusers and organizations. Changes include extending ages at which victims can sue, increasing the time frame for sexual abuse victims to sue, and opening look-back windows
The U.S. Judicial Panel on Multidistrict Litigation will hear arguments relating to a petition to create a multidistrict litigation docket for sex trafficking claims in a January 30th hearing in Tampa, Florida. The proposed MDL is against major hotel chains. Plaintiffs allege that the hotels ignored the obvious activity taking place on their premises, with victims repeatedly trafficked for sex at the defendants’ hotels. The motion for transfer states there are at least 21 cases pending in 12 different U.S. District Courts.
An MDL has been established in the Northern District of California, where U.S. District Judge William Orrick III has appointed four lawyers to handle preliminary matters for plaintiffs until he completes an initial census of the cases before him. On December 20th, leadership for the MDL was appointed.
Zantac (ranitidine) has risen as a potential cause of many different types of cancer. There is evidence that the issue with Zantac is not contamination but is instead the actual molecular structure of the drug, which is converted in the body into N-nitrosodimethylamine (NDMA). NDMA is classified as a probable human carcinogen by the FDA, the EPA and IARC (International Agency for Research on Cancer). This is present in all the generic forms of this medication so the potential number of claimants is expected to be significant.
An MDL has been established for Allergan Biocell® Textured Breast Implant products in the District of New Jersey for consolidated or coordinated pretrial proceedings. The implants were recalled by Allergan earlier this year, after an FDA determination that nearly all cases of breast implant associated anaplastic large cell lymphoma (BIA-ALCL) were related to textured implants.
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