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As we move into 2021, it is helpful to assess the current state of mass torts and class action and think about how these matters may develop over the course of the year. Despite the impact of the COVID pandemic, some matters are picking up momentum, some long-standing cases are heading toward settlement and new areas of litigation (including class actions) are starting to take shape.
Ongoing Mass Torts
Zantac – The MDL is venued in the United States District Court for the Southern District of Florida, where the presiding judge has held that state labeling and design defect claims against the makers, re-packagers, retailers, and distributors of generic forms for Zantac were pre-empted by federal law as originally pleaded. These claims against 32 such Zantac generics makers and distributors were subsequently dismissed; however, the judge did leave the door open for plaintiffs to re-plead their cases against these companies. This decision may ultimately end up reducing the number of overall generic cases that are viable as the MDL moves forward.
Boy Scouts – More than 95,000 victims filed sex-abuse claims against the Boy Scouts of America in its pending bankruptcy case. The debtor has said it must reach a settlement in its ongoing bankruptcy case by the summer; otherwise, the organization may not have the cash to continue operations. Lawyers representing the official committee of sex abuse victims said the Boy Scouts are wrongly holding back $667 million in cash, investments, and properties from a court-supervised bankruptcy process—valuable assets that could fund settlements with trauma victims. We expect a settlement to happen later this year, regardless. We are also anticipating that there may be numerous follow-on lawsuits against religious organizations that worked with the Boy Scouts. The Church of Jesus Christ of Latter-day Saints is facing at least seven new suits that accuse it of playing a role in the sex abuse coverup among scout troops in Arizona, for example.
Roundup – A multi-part settlement from Bayer is in the works, with a revised settlement proposed for between 95,000 and 100,000 pending cases. A separate settlement of $2B has been proposed that will create a settlement fund to pay future claims.
3M Combat Arms Earplugs – In a pre-trial order issued on December 30, 2020, U.S. Judge M. Casey Rodgers (the Florida federal judge overseeing the litigation) set trial dates for the five cases that were part of Bellwether Group A and the subject of a December 7th Motion for Consolidation filed by the Plaintiffs. She consolidated three bellwether cases that have substantial overlap (and therefore, will result in significant efficiencies through consolidation) and, recognizing the benefit of trying some individual cases, she ordered that two be assigned separate trial dates. The 2021 trial dates are April 5-30 for the three consolidated cases and May 17-28 and June 7-18 for the two cases to be tried separately. A combined pretrial conference for all Trial Group A cases will proceed the week of March 15.
Opioid MDL – In September 2020, the 6th U.S. Circuit Court of Appeals overturned the certification of a so-called “negotiating class” in the vast opioid MDL (MDL 2804). This negotiating class was to be comprised of all the local governments that might receive money in settlements with the opioid defendants. Doing so would have given all class members a say in whether to accept the settlement and how the money would be allocated. Further, the defendants would have been reassured about how many local governments intended to opt out and pursue individual claims.
The National Prescription Opiate Litigation is overseen by U.S. District Judge Dan Polster in the Northern District of Ohio. Several bellwether trials that were prepared for trial, continued due to COVID-19, and are now scheduled for January through May in Ohio, West Virginia, and New York, with trial dates not yet set for Chicago and San Francisco.
Juul – Juul Labs is at the center of an MDL venued in the Northern District of California, which includes over 300 lawsuits. The MDL has five bellwether trials planned for 2022. Most of the claims are based on Juul’s marketing practices, which allegedly were geared towards attracting young kids with their flavored vapes and advertising tactics. Additionally, the plaintiffs also allege that Juul did not reveal the real risks of their e-cigarettes – including, among others, physical and psychological addiction and possible lung injuries.
New Mass Torts
Elmiron – Plaintiffs claim that J&J subsidiary, Janssen Pharmaceuticals, Inc., failed to warn consumers that this drug developed to treat bladder cystitis could cause serious eye damage. Claims allege that Elmiron causes macular degeneration. The MDL for all Elmiron cases has been sent to New Jersey federal court, as U.S. District Court Judge Brian Martinotti in New Jersey has already been handling Elmiron cases and has implemented processes commonly accepted in mass tort litigation to handle the suits. Although only 42 cases were sent to NJ, the number of claims are expected to increase quickly. A very diverse leadership team has been selected.
Paragard – Paragard T 380A is a non-hormonal intrauterine device (IUD) used for long-term birth control, originally manufactured by Teva Pharmaceuticals and now owned by CooperCompanies, which holds the patent. Plaintiffs claim the device breaks as it is being removed, with pieces fragmenting off into other parts of the body, causing infections, scarring, and ectopic pregnancies. Plaintiffs allege that Teva created a defective device and failed to warn about its dangers. It was decided in December that cases filed throughout the federal court system will all be transferred to U.S. District Judge Leigh Martin May in the Northern District of Georgia. Expect to see hundreds of cases. It is as yet undetermined if Judge May will establish a bellwether process.
Developing Litigation for 2021
Clearview AI – This is the first class action lawsuit involving breach of privacy claims related to artificial intelligence. Clearview AI makes facial recognition software; the American Civil Liberties Union sued Clearview AI in May 2020, accusing the company of violating Illinois law by capturing more than three billion facial images from photographs posted on various websites without their owners’ consent and running them through its facial recognition software. The JPML approved an MDL late last December and the cases have been assigned to Judge Sharon Johnson Coleman of the Northern District of Illinois.
Paraquat –This herbicide—already banned in the EU, China, and Brazil—has been linked directly to Parkinson’s disease. Its popularity has grown in U.S. farming as an alternative to Roundup (as more weeds become resistant to the latter). According to a 2019 EPA analysis, U.S. farmers use eight million pounds a year of this highly toxic chemical agent.
PFAS chemicals – PFAS are chemical substances that remain in the environment and human body instead of breaking down. Scientific research has shown they can contribute to many health issues, including cancer. Individuals can be exposed to these in workplaces that might use or produce them, or by living in the surrounding communities where these are released into the water or environment where they persist. There are many pending lawsuits across the nation against some manufacturers of PFAs such as 3M, Dupont, and Chemours. The charges are mostly concentrated on the companies’ releases of these substances into the environment in addition to claims that the manufacturers were aware of the health risks of these substances but didn’t act responsibly. PFA regulation has been rapidly increasing around the country.
Belviq — The weight loss drug (lorcaserin hydrochloride) is an appetite inhibitor prescribed to individuals with weight-related medical problems. Marketed and distributed by Eisai Inc. in the U.S. (and manufactured by Arena Pharmaceuticals in Switzerland), Belviq has been on the market since 2012 but was removed from the market in 2020 as a result of a clinical trial. The study included 12,000 patients over a five-year period, with one group receiving a placebo. Those who took Belviq were found to be more likely to develop pancreatic, colorectal and lung cancer five years later than the control group. The FDA concluded that the drug’s risks outweighed its benefits. Cases are being filed but there haven’t been any major settlements or verdicts yet.
We will bring you updates on these and other cases, as the mass tort and class action lawsuits progress or resolve throughout the year.
