SCOTUS Bristol-Myers “California-Plavix” Ruling Causes Instant Mistrial in Missouri State Court J&J Talc Trial, But Judge Resets Trial For October 16, 2017

SCOTUS Bristol-Myers “California-Plavix” Ruling Causes Instant Mistrial in Missouri State Court J&J Talc Trial, But Judge Resets Trial For October 16, 2017

July 19, 2017 By Mark York

Is Missouri State Court Still a “J&J Loses Again Venue” or Will the California-Plavix Ruling Change Things?

On June 19, 2017 lawyers in a St. Louis courtroom trial, Estate of Shawn Blaes, et al vs. Johnson & Johnson Case No. 1422-CC09326-01 over Johnson & Johnson’s talcum powder,  were receiving notice of an earlier US Supreme Court decision and were changing trial strategy instantly, scrambling to determine if the Supreme Court decision handed down that morning doomed their case. The ruling was from a California multi-plaintiff drug case, Bristol Myers-Plavix Litigation JCCP Case No. 4748 (San Francisco County Superior Court) where Bristol-Myers had appealed the August 29, 2016 California Supreme Court decision, when the court ruled that “foreign resident plaintiffs were able to remain parties to the Plavix litigation in California State Court” see California Court Opinion Jurisdiction of Non-Resident Plavix Plaintiffs 8.29.2016. Bristol-Myers immediately appealed to the US Supreme Court, where appeal arguments were heard on April 24, 2017 see BMSQ California Plavix SCOTUS Appeal Transcript , which left non-resident plaintiffs in state court cases across the country in limbo, pending the ruling.  On June 19th the 8-1 ruling clarified the non-resident question for many plaintiffs, including the three plaintiffs in the pending trial in front of Judge Rex Burlison, who immediately declared a mistrial, but prior to his ruling the trial attorneys were scrambling to get correct information.

One attorney was still downloading the opinion to his computer as another told the judge “I’m on my cellphone right now trying to learn facts,” according to the trial transcript, Shawn Blaes v. J&J June 19th Trial Transcript of the hearing. Defense counsel aggressively asserted to Judge Burlison that the Supreme Court decision in Bristol-Myers Squibb Co. v. Superior Court, June 19, 2017 California-Plavix SCOTUS Opinion which limited where defendants could be sued, was directly applicable to the case and had disrupted matters so thoroughly that he had to declare a mistrial.

But plaintiffs lawyers had a surprise: A company called “Pharma Tech Industries” was involved, and when W. Wylie Blair of Onder, Shelton, O’Leary & Peterson, was asked to address Bristol-Myers, he introduced the judge to Pharma Tech, a company that was “doing the packaging, labeling and distributing of talc-based body powders right here in Union, Missouri.”

“Roll that again,” Burlison interrupted. “Pharma Tech Industries was doing what?”

Plaintiffs counsel Blair went on to tell him about letters, forms, emails, monthly checks and sales documents showing Pharma Tech’s plant in Missouri had bought raw talc from Imerys Talc America Inc., another defendant in the case, which alleged Johnson & Johnson’s talcum powder caused three women to die from ovarian cancer. Pharma Tech then made products for Johnson & Johnson, and originally the talc products by Pharma Tech had a cancer warning on it, but Pharma Tech, at J&J’s direction, removed it when manufacturing, bottling and labeling its products.

Though intrigued, Burlison decided not to proceed with the trial, as two of the three plaintiffs hadn’t lived in Missouri.  The judge granted Johnson & Johnson’s motion for a mistrial. Going forward, he said, would be like “trying to master a square into a round hole.”

“We do have allegations in this case that would constitute what the Bristol-Myers court refers to as relevant acts, however, we don’t — we do not have pleadings sufficient to anchor those relevant acts to a third party, that being the Pharma Tech Industries here in Missouri,” Burlison said.

The judge has reset the case for trial on Oct. 16, 2017 and permitted plaintiffs attorneys to move forward on discovery over Pharma Tech, a family-owned manufacturer of pharmaceutical powders based in Athens, Georgia. Founded in 1972, Pharma Tech has been run by the same family since 1989, which has a plant in Union, Missouri that provides talc products to Johnson& Johnson.

The Pharma Tech evidence could prove essential to the claims of more than 1,360 other plaintiffs who have cases pending in Missouri, where juries have awarded verdicts of more than $300 million. Pharma Tech has come up in plaintiffs’ motions this month to remand 20 cases back to Missouri. Johnson & Johnson removed them to federal court under Bristol-Myers just before the scheduled depositions and subpoenas on the Pharma Tech evidence. Plaintiffs’ attorneys also want the Missouri Court of Appeals to let them to add the Pharma Tech evidence to a pending appeals of the prior Missouri court verdicts.

Johnson & Johnson declined to comment on the ruling, while co-defendant, Imerys declared:

“None of the cases tried to date have alleged any conduct by Imerys in Missouri, and the vast majority of cases filed against us in St. Louis are by plaintiffs who similarly have no connection to St. Louis or Missouri,” said Imerys spokeswoman Gwen Myers. “We will look to overturn those cases that were already improperly tried in this jurisdiction and will seek to apply this ruling to those that are still pending.”

The defense bar has been emboldened by Bristol-Myers in which the Supreme Court ruled non-resident plaintiffs who sued Bristol-Myers in California had failed to establish specific jurisdiction because there wasn’t enough of a link between their claims and California, where they brought their “mass action.” Most of the 600 plaintiffs didn’t live in California, and Bristol-Myers is based in New York. The court also found that a California distributor, McKesson Corp., didn’t have enough connection to the claims.

 

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Missouri Federal Court Dismisses All Non-Missouri Plaintiffs From Bayer-Essure Birth Control Cases Citing Recent US Supreme Court Bristol-Myers “California Plavix” Ruling “Are Plavix Motions The New Defense Strategy?”

 

 

faviconOn January 19, 2017, plaintiffs who are residents of states around the country including Missouri, filed a joint complaint against Bayer AG, Bayer-Essure and other Bayer entities over its Essure Birth control implant in the Circuit Court for the City of St Louis, Bayer Essure Missouri Court Litigation, which was removed to Federal Court. The women claim Bayer’s device caused “serious and permanent injuries” and Bayer has been well aware of those risks for years,. The implants, considered “high-risk” at the time of their approval, were taken through the US Food & Drug Administration’s “Pre-Market Approval” process. In 2015 it was learned the FDA has received “nearly 10,000 formal complaints,” of debilitating side effects, that are “related to Essure,” and included an independent medical device expert who reviewed those 10,000 reports. The analysis ultimately turned up 303 reports of fetal death associated with the implants, far more than the 5 events cited in the FDA’s publicly-available documents on Essure. Congressman Brian Fitzpatrick (R-PA) is sponsoring a bill in the US congress that would see Essure recalled entirely from the market. For its part, the FDA recently announced that it would require a “black box” warning on Essure’s packaging, and has begun investigating allegations that clinical trial results were falsified to “silence” patients who experienced side effects after receiving the implants.

These claims are now meritless for the non-Missouri plaintiffs after Judge Carol Jackson, USDC ED Missouri, issued a ruling July 14, 2017 dismissing all claims by plaintiffs who are not residents of Missouri, citing the US Supreme Court in the June 19, 2017 Bristol-Myers v. Superior Court of California (Plavix) ruling where in an 8-1 opinion, the court ruled “California courts lack specific jurisdiction to entertain the nonresidents’ claims” which has subsequently been cited by defense counsel in attempts to get non-resident claims dismissed from numerous state and federal non-Multidistrict Litigation and consolidated court cases across the country, when plaintiffs do not reside in the case venues. Will filing a “Plavix” motion be the “go to” strategy for the short term by defense, to see how many claims they can get removed from pending actions and force parties to refile in courts where the plaintiffs reside. What impact will this have on “State Court” complex litigation dockets such as those in New Jersey and Pennsylvania where large numbers of non-resident plaintiffs have claims pending?

Bayer was able to move away from traditional “Pre-Market approval and other defenses thanks to the “Plavix ruling”, but there were numerous motions, briefings and arguments in the Missouri Essure case as Bayer had originally filed the Bayer Essure Motion to Dismiss Re: Lack of Personal Jurisdiction on March 9, 2017 prior to the Supreme Court Plavix ruling. The cases were originally filed January 19, 2017 in Circuit Court for the City of St, Louis as Laveta Jordan et al vs. Bayer Corp et al (original complaint) Case No. 1722-0000173; The same day Bayer filed the Motion to Dismiss (March 9, 2017), they also filed a Motion to Sever Non-Resident Missouri Plaintiffs, With plaintiffs filing a Motion and Memorandum to Remand back to state court on March 16, 2017. Parties continued aggressive briefing arguments until Plaintiffs filed the final Response on July 13, 2017, just one day before Judge Jackson ruled on all the pending motions.
Judge Jackson ruled as follows on the primary issues raised by Bayer Corp. in its motion.

As to General Jurisdiction:
The question of general jurisdiction is easily disposed of here, as none of the defendants is incorporated in Missouri or has its principal place of business in the state. Moreover, none of the defendants have such substantial and extensive contacts such that they are essentially “at home” in Missouri. Plaintiffs’ allegations that defendants conduct “substantial business activities” in Missouri are insufficient to show that defendants are “at home.”

As to Personal Jurisdiction:
Citing the Plavix Ruling:
“Bristol-Myers Squibb Company v. Superior Court of California, 137 S. Ct. 1773 (2017) is dispositive of the specific personal jurisdiction issue in this case. In Bristol-Myers, out-of-state plaintiffs joined California plaintiffs in state court. Together they alleged a host of state-law claims based on injuries purportedly caused by defendant Bristol-Myers (BMS) prescription drug Plavix. 137 S. Ct. 1773, 1777 (2017). Notably, BMS was not a citizen of California, and the California Supreme Court ultimately concluded that general jurisdiction was lacking. Id. at 1778. But, the California Supreme Court determined that California courts had specific jurisdiction over the claims of the nonresident plaintiffs. Id. The California Supreme Court reasoned that BMS’s extensive contacts with the state and the similarity to the claims of the California residents supported its conclusion, the US Supreme Court reversed”
The Court elaborated that when no such connection exists, “specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the state.” The exercise of forum activities unrelated to the cause of action – including the operation of research laboratories not connected to Plavix, employment of sales representatives, and the maintenance of a state-government advocacy office–did not affect the analysis. And “BMS did not develop, manufacture, label, package, or work on the regulatory approval or marketing strategy for Plavix in California”.

As to Bayer Contact with Missouri:

Moreover, defendants Bayer, did not develop, manufacture, label, package, or create a marketing strategy for Essure in Missouri. And the general exercise of business activities in the state cannot create an adequate link between the claims and the Missouri forum

As To Plaintiff Diversity:

Of the 94 plaintiffs, seven are citizens of Missouri. One plaintiff is an Illinois citizen who allegedly had the device implanted in Missouri. The remaining plaintiffs are citizens of 25 different states.

On March 9, 2017, defendants Bayer Corporation, Bayer Essure, Inc., Bayer HealthCare LLC, and Bayer HealthCare Pharmaceuticals, Inc., jointly removed the action to this Court on the basis of diversity jurisdiction, 28 U.S.C. § 1332, and federal question jurisdiction, 28 U.S.C. § 1332.1 Bayer Corporation is a citizen of New Jersey and Indiana; Bayer Healthcare LLC is a citizen of Delaware, Pennsylvania, New Jersey, Germany, and the Netherlands; Bayer Essure, Inc. and Bayer Healthcare Pharmaceuticals, Inc., are citizens of Delaware and New Jersey; and Bayer A.G. is a German corporation.2 Some of the plaintiffs are citizens of Delaware, Indiana, and Pennsylvania. Despite the lack of complete diversity on the face of the complaint, defendants argue that they properly removed this case. Specifically, they contend that removal was proper because the diversity-destroying plaintiffs were misjoined, jurisdiction lies under the Class Action Fairness Act, and plaintiffs plead violations of federal law, thus invoking federal question jurisdiction. Plaintiffs counter that all of the claims are properly joined, and the Court lacks subject-matter jurisdiction over this action in the absence of complete diversity of the parties.

Summary of Ruling On All Motions:
Before the Court are defendants’ motion to dismiss pursuant to Federal Rules of Civil Procedure 8, 9(b), 12(b)(2), and 12(b)(6), and defendants’ motion to sever. Also before the Court are plaintiffs’ motions to remand and stay this action. The issues are fully briefed

Bayer’s Motion to dismiss for Lack of Personal Jurisdiction was granted as to all non-Missouri plaintiffs except plaintiff, Jennifer Dischbein, an Illinois resident who had an Essure device implanted in Missouri. FURTHER ORDERED that remaining plaintiffs Laveta Jordan, Jennifer Baggett, Cheryl Denbow, Jennifer Dischbein, Tiffany Queen, Erica Ware, Michelle Weedman, and Lavena Wilkerson shall have until August 1, 2017, to file an amended complaint setting forth their claims against the defendants.

IT IS FURTHER ORDERED that defendants’ motion to dismiss the complaint for failure to state a claim or federal preemption is denied without prejudice. IT IS FURTHER ORDERED that defendants’ motion to sever is denied as moot. IT IS FURTHER ORDERED that plaintiffs’ motion to remand is denied. IT IS FURTHER ORDERED that plaintiffs’ motion to stay is denied as moot.

______________________________________________________
See the Mass Tort Nexus Bayer Essure Missouri Court Litigation briefcase link for additional case related information

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Johnson & Johnson Faces First California State Court Talcum Powder Trial in Los Angeles Superior Court

Talcum Powder Trial

The closely watched first bellwether trial (Eva Echeverria v. Johnson & Johnson, Case No. BC628228), in California state court over claims of cancer caused by Johnson & Johnson’s talc-based products began on Monday July 10th in Los Angeles County Superior Court, in front of Judge Maren Nelson. The trail started following hearings last week over the admissibility of expert witness testimony and the judge’s summary judgment rulings. The first day of trial saw Judge Maren Nelson change her July 5th ruling that J&J talc supplier Imerys Talc America would be included in the trial, where last week she ruled that Imerys reliance on J&J to warn of “talc dangers” was a question of fact for the jury. Prior to the start of the trial on Monday July 10, 2017 Judge Nelson entered a ruling that Imerys is dismissed from the trial. How this ruling impacts J&J’s trial strategy on the first day of trial is unknown, but does direct trial focus entirely onto Johnson & Johnson .

Last week Judge Nelson held “Sargon” hearings, the California equivalent of a “Daubert” hearing where parties argue over which expert witnesses will be permitted to testify at trial and the scope of their testimony. Judge Nelson chose not to exclude any experts or their testimony, but these hearings do reflect the enhanced scrutiny by state court judges, as to expert testimony in talc cases pending in state courts of New Jersey, California, Missouri and Pennsylvania. These pretrial hearings can be as significant as the trials themselves, as proven last October when a New Jersey state court judge canceled the first talc powder trial there after refusing to permit testimony from experts for the plaintiffs over alleged causal links between talc and ovarian cancer. These are the same experts who testified in the recent St. Louis talc trials where verdicts in excess of $300 million have been returned in the last 2 years; however, on June 29th, Judge Rex Burlison (St Louis Circuit Court), granted J&J’s motion for a mistrial, the same day the US Supreme Court ruled on the California State Court Plavix litigation in Bristol-Myers v. Superior Court of California, in an 8-1 opinion, siding with Bristol-Myers and struck down a California Supreme Court ruling allowing out-of-state plaintiffs to join a mass action over the blood thinner Plavix. One of the deceased women in the St. Louis trial was a former Missouri resident, while the other had lived in Texas and Virginia. How the Plavix ruling affects the thousands of other pending cases in the California “JCCP Consolidated Case” docket remains to be seen.

The Bristol-Myers(Plavix) Supreme Court jurisdictional ruling has caused counsel for parties in state court medical device and pharmaceutical cases across the country to change strategy citing to the Plavix opinion as grounds to dismiss thousands of state court cases where plaintiffs are non-residents. The current J&J talc trial in front of Judge Nelson is excluded from the Plavix ruling as Plaintiff, Eva Echeverria is a California resident, who claims she developed ovarian cancer while living in the state after using J&J’s talc products since the 1950’s. Besides being the first state court talc trial outside of Missouri, Echeverria’s case will also highlight a new group of plaintiff attorneys, after the same team represented plaintiffs in each of the previous talc trials.

All the St. Louis talc trials were handled by out-of-state plaintiff firms (Alabama-based Beasley Allen and the Mississippi-based Smith Law Firm), Echeverria’s team consists entirely of local California firms, with Mark P. Robinson Jr. of Robinson Calcagnie as lead counsel and Kiesel Law LLP, Boucher of Boucher LLP, Girardi Keese as liaison counsel. Johnson & Johnson are represented by some of the same firms that represented the companies in St. Louis, like Shook Hardy & Bacon, which is headquartered in Missouri, J&J’s other defense firm, Ohio-based Tucker Ellis, is making its first appearance in a talc trial.

J&J counsel are expected to be extremely aggressive in their attacks on plaintiffs’ experts, the science they rely on and medical treatment testimony, especially in light of the recent J&J defense verdicts in the first 2 Xarelto bellwether trials in the Xarelto MDL 2592 (US District Court Eastern District of Louisiana), where both juries returned defense verdicts within 24 hours of the start of deliberations.

Mass Tort Nexus will be providing ongoing updates to the Echeverria v. Johnson & Johnson trial as the develop.

The consolidated California cases are captioned Johnson & Johnson Talcum Powder Cases, number JCCP4872, and the bellwether case is captioned Eva Echeverria v. Johnson & Johnson, number BC628228, in the Superior Court of California for Los Angeles County.

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Court Selects 2 Testosterone Cases Against Lilly for Bellwether Trials

testosterone2The US District Court for the Northern District of Illinois selected two cases as Lilly Bellwether Trial cases in In re Testosterone Replacement Therapy Product Liability Litigation, MDL 2545.

There are 6,090 lawsuits over testosterone replacement treatments against Eli Lilly and other drug companies before US District Judge Matthew F. Kennelly in the multidistrict litigation docket. Lilly makes Axiron testosterone topical solution.

The cases set for trial are:

  • Plaintiff Tracy Garner who suffered a myocardial infarction, Case No 1:15-cv-02045
  • Plaintiff John Debroka, Jr., who suffered a deep vein thrombosis, Case No. 1:15-cv-09246

All the actions involve plaintiffs (or their survivors) who used one or more testosterone replacement therapies and contend that their (or their decedent’s) use of the drugs caused their injuries, which include:

  • heart attack
  • stroke
  • deep vein thrombosis
  • pulmonary embolism

On January 31, 2014, the U.S. Food and Drug Administration announced that it was “investigating the risk of stroke, heart attack, and death in men taking FDA-approved testosterone products.” Plaintiffs filed the actions in the wake of this announcement.

In March 2015, the FDA issued a safety communication, cautioning men against taking testosterone products for low testosterone levels associated with aging. The agency also required companies manufacturing these drugs to change their labels to clarify the proper usages for their products. Manufacturers were also required to add warnings about the risks of heart attack and stroke associated with taking these drugs.

All testosterone replacement therapy actions share factual questions about general causation and the background science about the role of testosterone in the aging body, as well as involve common regulatory issues in light of the FDA’s announcement and subsequent actions, if any.

The hormone has been used off-label to treat a range of symptoms such as loss of energy, decreased muscle mass and reduced libido.

The defendants include:

  • AbbVie Inc. and Abbott Laboratories Inc. (collectively Abbot)
  • Eli Lilly and Co. and Lilly USA LLC
  • Endo Pharmaceuticals
  • Actavis, Inc.
  • Auxilium Pharmaceuticals, Inc.
  • Pfizer, Inc.
  • Pharmacia

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Roundup Causes Cancer, California Says

Spraying glyphosate on a stubble field | Photo: Chafer Machinery, some rights reserved
Spraying glyphosate on a field. Photo: Chafer Machinery

California is free to declare officially that Monsanto’s Roundup weedkiller causes cancer after a state court stopped a lawsuit by Monsanto.

There are 100 lawsuits in MDL 2741 supervised by US District Judge Vince Chhabria (Northern District of California), Roundup Products Liability Litigation.

The California Office of Environmental Health Hazard Assessment announced in 2015 that it would add glyphosate to its list of chemicals known to cause cancer.

Monsanto sued in January 2016 to block the listing, claiming that the state acted unconstitutionally in listing glyphosate. The company also argued that the value of its Roundup trademark would be irreparably damaged that its First Amendment right to free speech was threatened if the state required warning labels on the company’s glyphosate products.

Glyphosate on carcinogen list

State Superior Court Judge Kristi Culver Kapetan ruled March 10 that California may add glyphosate to its carcinogen list.

Farm workers suffer significant health effects from glyphosate exposure, particularly non-Hodgkin lymphoma (cancer of the lymph nodes).

Use of Roundup has skyrocketed in recent decades because of Roundup’s bogus reputation as “safer than table salt.” Also, Monsanto’s sells “Roundup-ready” crops such as soy, corn, alfalfa, and cotton. Farmers spray Roundup on crops, killing the weeds but leaving their crops unharmed.

As a result of the spread of glyphosate-resistant crops, use of the herbicide has increased more than tenfold since 1995.

America’s farming belt, where most of the food in the US is grown, is hit the hardest:

  • West: California, Washington, Montana, and Texas
  • Midwest: Michigan, Illinois, Indiana, Ohio, Iowa, Wisconsin, and Minnesota
  • Mississippi River: Louisiana, Alabama, Arkansas, and Tennessee
  • Atlantic seaboard: New Jersey, Maryland, Virginia, Florida, Georgia, North and South Carolina

This article is a part of KCET and Link TV’s “Summer of the Environment.

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Beware of Green Dot Debit Card Scam Targeting Yaz Settlement Recipients

Some women who have suffered real injuries as a result of using Yaz, Yasmin, Gianvi and Ocella birth control are being injured again as con men who claim to be from a settlement center are inducing women to send money so they can receive their settlement funds back.

According to Attorney Jason T. Brown, of The JTB Law Group, LLC in Jersey City, NJ, if you ever have to send money to receive money it is a scam. No attorney or law firm or anyone associated with the Yaz Lawsuit and Yasmin Litigation will ever ask anyone to send in money before receiving settlement funds. If someone is approached by anyone in any context asking to send in money, take down all their information, but do not give out any information about yourself over the phone.

$1.4 billion settlements

In 2013, Bayer paid out $1.4 billion in Yaz lawsuit settlements. Attorney Brown, a former FBI Special Agent said, “If you have a lawyer, contact them about your case. If someone asks you to send money before you can receive money it is probably a scam. Contact law enforcement to issue a police report. The sooner the bad people are caught the better for everyone.”

Reloadable debit cards- especially the top-selling, legitimate Green Dot cards — and the new money moving method of choice for scammers.

According to a recent report from Fox News Investigative Reporter Beau Berman in Hartford, CT, once money is sent to these people, they will keep trying to call to get more money.

Some of the defining characteristics of the alleged scam seem to be targeting women who have allegedly been injured by Yaz, Yasmin or Ocella and possibly gaining information from the public filings in court.

The only injuries that lawyers are currently pursuing are embolic events such as:

  • Deep vein thrombosis
  • Pulmonary embolism
  • Stroke
  • Heart attack and
  • Death from Yaz and other fourth generation hormones.

Injuries outside of this range are unlikely to qualify for any settlement. Settlements for women who have allegedly endured a Yaz DVT, Yaz PE, Yaz Death, Yasmin DVT, Yasmin PE, Yasmin Death and Ocella DVT, Ocella PE, or Yaz Death have exceeded over $1 billion according to Page 64 of Bayer’s Quarterly Report.

Popular with Millennials

The debit cards are popular with Millennials, according to Thea Garon of the Center for Financial Services Information manager, especially among millennials. She goes on to suggest that millennials and other generational members will see the lines blur between traditional checking accounts and prepaid debit cards.

The alleged scammers then say they have $7,500 Yaz settlement money in exchange for money sent through a green dot money pack card.

No attorney should make a client engage in such actions to receive settlement funds. All attorneys will go over the settlement process and will pay funds in injury matters if successful.

Consumer rights attorney Jason T. Brown stated, “In almost any and every context if someone owes you money, you shouldn’t have to send money to receive money. If you haven’t obtained counsel for your Yasmin lawsuit injuries, you should vet your counsel by going to sites like AVVO and Martindale-Hubbell which have client and peer reviews and issue a ranking based on a matrix of factors.”

It’s a shame that crime permeates through every walk of life, but it’s particularly troubling that criminals prey on women who have already been allegedly victimized by bad birth control side effects. Attorney Brown suggested, “Once again, if you already have a Yaz lawyer, speak with your attorney if you are approached by anyone you don’t know about your case. If you don’t have a Yasmin lawyer, speak with a Yaz lawyer who can educate you on your rights as well as guide you if approached by these scam artists.”

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Defective Airbag Maker Takata Files for Bankruptcy

Flying shrapnel from Takata airbag explosion.
Flying shrapnel from Takata airbag explosion.

Update: Plaintiff lawyers told a U.S. bankruptcy court judge that  Takata Corp.’s restructuring plan is being skewed to benefit automakers over the victims of exploding air bags.

Japanese air bag maker Takata Corp. has filed for bankruptcy protection in Tokyo and the U.S., overwhelmed by lawsuits and recall costs of its faulty airbag inflators that are connected to the death of at least 16 people, according to the Associated Press.

Takata said that rival Key Safety Systems of suburban Detroit will buy its assets for $1.6 billion.

In addition to the fatalities, the defective airbags caused at least 180 injuries and touched off the largest automotive recall in U.S. history.

The solid chemical propellant used in Takata airbags deteriorates over time, particularly under high humidity. This builds up excessive pressure in the metal inflator housing, causing it to rupture. When the air bag deploys, metal shrapnel launches through the bag and at the occupants in the vehicle, according to lawyer Kim Adams.

Nearly eight million vehicles by 10 different manufacturers may be affected, according to Consumer Reports. They include vehicles made by:

  • Acura
  • BMW
  • Chrysler
  • Dodge
  • Ford
  • General Motors
    • Buick
    • Cadillac
    • Chevrolet
    • GMC
    • Pontiac
  • Honda
  • Infiniti
  • Lexus
  • Mazda
  • Nissan
  • Subaru
  • Toyota

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Jury Awards Nearly $218 Million to Kansas Corn Producers In First Syngenta GMO Corn Class Action Lawsuit

A Kansas jury sided with Kansas corn producers in the first of eight certified state class action lawsuits involving the nation’s corn growers’ claims that Switzerland-based Syngenta’s actions with its genetically modified strains of corn led to the loss of an important market for U.S. corn and causing them economic harm.

After a half day of deliberation, the jury found Syngenta negligent and awarded $217,700,000 in compensatory damages to the class of more than 7,000 Kansas corn growers, who were represented in the lawsuit by four Kansas corn producer plaintiffs. (Five Star Farms et al v. Syngenta AG et al, No. 2:14-cv-02571)

 The Kansas plaintiffs alleged they suffered significant economic damages when Syngenta sold two genetically modified strains of its corn seed – Agrisure Viptera and Agrisure Duracade – to the U.S. market prior to China approving them.

Refusing all shipments of U.S. corn in 2013

China, a major importer of U.S. corn, began refusing all shipments of U.S. corn in 2013 after a genetic trait found in Viptera – MIR162 – was detected in shipments from the United States. The genetic trait at the time was not approved in China. With the loss of the Chinese market, corn growers in Kansas and across the United States saw the price of corn plummet and suffered long-lasting economic damage, according to the lawsuit.

The plaintiffs were represented by Don Downing of Gray, Ritter & Graham, P.C., Scott Powell of Hare, Wynn, Newell & Newton, Patrick Stueve of Stueve Siegel Hanson LLP and William Chaney of Gray Reed & McGraw LLP.

The four co-lead counsel issued a statement: “The verdict is great news for corn farmers in Kansas and corn growers throughout the country who were seriously hurt by Syngenta’s actions. This is only the beginning.  We look forward to pursuing justice for thousands more corn farmers in the months ahead.”

The Kansas class action lawsuit, which began June 5, was heard in the U.S. District Court for the District of Kansas.  It is the first of eight state class action lawsuits certified in this Multi-District Litigation so far.  The other certified state class action lawsuits involve Arkansas, Missouri, Illinois, Iowa, Nebraska, Ohio, and South Dakota corn producers.  Numerous other state class action lawsuits in this matter are awaiting certification.

Nationwide, losses to U.S. corn growers due to the loss of the Chinese market are estimated to exceed $5 billion.

SOURCE Hare, Wynn, Newell & Newton LLP of Birmingham, AL.

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First on the House Agenda: HR 985 Raises the Bar Class on Actions

The House of Representatives moves quickly to curtail victims’ rights.

By Jesse Jensen, Esq. Reprinted with permission.

As recognized by the Supreme Court, class action lawsuits play an invaluable role in protecting investors, consumers, and employees by “overcom[ing] the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.” Amgen Inc. v.
Conn. Ret. Plans & Tr. Funds, 133 S. Ct. 1184, 1202 (2013).

Yet even after the wave of populist outcry that dominated the
2016 election, the newly-elected majority in the US House of Representatives passed as one of its first acts this year a bill striking at the heart of people’s rights to class action litigation.

The bill — the so-called “Fairness in Class Action Litigation Act of 2017” (H.R. 985) — seeks to frustrate class actions brought by consumers, employees, and investors while tipping the scales in favor of corporate defendants.

A remarkable coalition of consumer rights groups, civil rights advocates, and members of the legal community have united in opposition to H.R. 985. Nonetheless, the House majority passed H.R. 985 without permitting even a single hearing on its merits, and this dangerous and much-criticized legislation now resides with the Senate.

H.R. 985’s radical effects

Author Jesse Jensen is an attorney in the New York office of Bernstein Litowitz Berger & Grossman LLP
Author Jesse Jensen is an attorney in the New York office of Bernstein Litowitz Berger & Grossman LLP

Close examination of H.R. 985 reveals that, far from promoting “fairness,” the bill relies on creative methods to delay, and ultimately dismantle, class action lawsuits.

For example, courts currently permit lawsuits to proceed as class actions only if (among other requirements) the proposed class representative shows that its claims, including its injury, are “typical” of the class’s claims. H.R. 985, however, would prohibit class actions unless the plaintiff demonstrates that each proposed class member suffered “the same type and scope of injury.”

In many types of class actions, this provision could radically pare down what a “class” could be, because the same wrongdoing may injure large groups of consumers or workers to different degrees. For instance, the same dangerous prescription medication may manifest side effects that differ in scope.

While one patient may suffer a lethal heart attack, another may suffer a debilitating stroke. This provision of H.R. 985, however, could be interpreted to rob from the victims of that defect their ability to band together against the pharmaceutical company, even though all suffered from the same faulty medication.

Moreover, H.R. 985 does not explain how precisely a class representative could demonstrate that all of the class members suffered “the same type and scope of injury.” Ultimately, courts could spend years of litigation attempting to settle on an accepted meaning of this restrictive requirement — preventing adjudication of the merits, and any relief to pending classes, in the meantime.

Other provisions of the bill also transparently seek to manufacture delay. For instance, while appellate courts currently have discretion as to when they will hear appeals of class certification decisions, H.R. 985 would require appellate courts to hear all appeals of class certification decisions, no matter how frivolous.

This element of H.R. 985 caught experienced legal scholars and practitioners by surprise, as little-to-no commentary had suggested that appellate courts have failed to oversee appropriately district court rulings on class certification. By unnecessarily burdening appellate courts, this provision of H.R. 985 would add further time and expense to the class certification process.

Near-universal criticism

Other than the US Chamber of  Commerce — the highest-spending lobbying group in the United States — H.R. 985 has received no notable endorsement. Instead, the bill has faced widespread denunciation, including by dozens of consumer, labor, environmental, disability, investor and civil rights advocacy groups, all of whom expressed concern with how the bill would stymie the enforcement of individual legal rights. This disparate alliance includes such prominent organizations as:

  • The AFL-CIO
  • National Disability Rights Network
  • Southern Poverty Law Center

Even beyond this pervasive concern over the bill’s impact, several legal commentators have criticized the bill for fundamentally disregarding Congress’s own acknowledgment that federal courts themselves are best positioned to make rules governing their procedures.

For example, on March 8, 2017, the American Bar Association — a prominent nonpartisan professional association of legal professionals — noted in a public letter to members of the House that H.R. 985 would interfere with the efforts to improve class action procedures already in progress by the policy-making body for the federal courts, the Judicial Conference of the United States, all while wasting judicial resources and unnecessarily delaying and denying claims.

Public outcry

Fortunately, public outcry forced the elimination of one of the bill’s most onerous (and arguably unconstitutional) provisions. The bill’s sponsor, House Judiciary Committee Chairman Bob Goodlatte (R-VA), voluntarily removed from the legislation a provision that would have forbidden any class representative from being represented by any counsel who had previously served as counsel for the class representative in a different class action.

Nonetheless, even this pared-back version of the bill could not garner a single Democratic vote in the House, and even failed to capture over a dozen Republican votes. Ultimately, however, the substantial GOP House majority advanced the bill to the Senate in March 2017, where it has since been referred to the Senate Committee on the Judiciary.

Since that time, the Senate has apparently shown no urgency with respect to the legislation, leaving unclear H.R. 985’s fate. Last year, the Senate Judiciary Committee refrained from acting on similar anti-class action legislation, also introduced by Rep. Goodlatte. Many commentators believe that, even if H.R. 985 moves forward to the Senate floor, it will face greater scrutiny — and likely revision — than it did in the House.

Ultimately, perhaps the biggest wildcard facing H.R. 985 is whether the new President will attempt to play any role in its future, and what that role would be.

H.R. 985 threatens to erect unnecessary,  costly, and time-consuming barriers to class actions nationwide, and the House of Representatives disappointed the country in making its passage one of its first priorities this year. With the bill now in the Senate’s control, legal experts, advocacy groups, institutional investors, and others should remain vigilant regarding this anti-consumer legislation.


Jesse Jensen is an Attorney in the New York office of Bernstein Litowitz Berger & Grossmann LLP (www.blbglaw.com). He can be reached at jesse.jensen@blbglaw.com and 212.554.1584.

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C.R. Bard Settles 75 Transvaginal Mesh Lawsuits

C.R. Bard, Inc. has reportedly settled another batch of transvaginal mesh lawsuits that were part of the federal multidistrict litigation underway in West Virginia federal court. Terms of this agreement remain confidential.

Some 5,700 product liability claims are pending against C.R. Bard in the U.S. District Court, Southern District of Western Virginia, where federal lawsuits involving the company’s transvaginal mesh devices are before U.S. District Judge Joseph R. Goodwin. Judge Goodwin is also presiding over multidistrict litigation involving pelvic mesh devices manufactured by:

  • American Medical Systems, Inc.
  • Ethicon, Inc.,
  • Boston Scientific Corp.,
  • Cook Medical, Inc.
  • and Coloplast Corp.

Judge Goodwin dismissed 75 C.R. Bard vaginal mesh lawsuits on Monday, all with prejudice.  Court records show that the dismissed cases have been “compromised and settled” for an undisclosed amount, according to Law360.com.

This is just the most recent transvaginal mesh settlement reported in the C.R. Bard litigation. In April, Judge Goodwin dismissed 149 cases that were also compromised and settled for undisclosed amounts.

Bloomberg News reported in July 2015 that C.R. Bard had spent $200 million to resolve 3,000 transvaginal mesh lawsuits. Plaintiffs involved in that accord each reportedly received $67,000. A smaller group of cases had been settled the previous year for about $43,000 per plaintiff.

TVM Dangers

Transvaginal mesh is used to surgically treat women suffering from pelvic organ prolapse and stress urinary incontinence.  In 2008, the  U.S. Food & Drug Administration (FDA) warned that such devices had been implicated in more than 1,000 serious injury reports during the previous three-year period.

In July 2011, the agency disclosed that it had received more than 2,800 more adverse event reports related to the products, including cases of injury, death, and malfunction. Over 1,500 incidents were associated with pelvic organ prolapse repairs, while 1,371 were associated with stress urinary incontinence repairs.

The FDA’s 2011 alert also noted that the agency no longer considered transvaginal mesh complications following prolapse repair to be rare, the reverse of its previous position. The FDA also expressed doubt that prolapse repair with transvaginal mesh offered any added benefits compared to traditional non-mesh repair.

Just last year, the FDA issued new rules that, among other things, made transvaginal mesh implants ineligible for the agency’s 510(k) clearance program. This program allows a medical device to come to market in the absence of human clinical trials when a manufacturer can show a device is “substantially equivalent” to another product previously approved by the FDA.

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