7th Circuit Upholds $20 Million Verdict Against Ethicon in Pelvic Mesh Case

Casting aside Ethicon’s “broad-spectrum attack on the judgment,” the 7th US Circuit Court upheld a $20 million verdict to a woman who was permanently injured by the company’s Prolift pelvic mesh device.

Ethicon appealed in Barbara Kaiser v. Johnson & Johnson and Ethicon, Inc., No. 18-2944. An Indiana state jury had awarded $35 million to Barbara Kaiser on March 8, 2018 for negligent design defect and negligent failure to warn about the dangers of the mesh. The trial judge reduced the verdict to $20 million.

It was the latest in a long string of jury verdicts.
Kaiser had the mesh implanted in January 2009. Afterwards she experienced severe pelvic pain, bladder spasms and pain during intercourse. Although she underwent revision surgery to remove the device, it could not be completely extracted.

Kaiser sued in March 2012. She claimed the defendants offered exaggerated and misleading information about the safety of Prolift. The device was later taken off of the market in 2012 following years of complaints and U.S. Food and Drug Administration scrutiny.

Ethicon’s “Kitchen Sink” Appeal faces

The company threw in every legal argument plus the kitchen sink in its appeal, a “broad-spectrum attack on the judgment, starting with an argument about federal preemption and moving through several issues of Indiana product-liability law, a claimed evidentiary error, and challenges to the compensatory and punitive damages,” the court said.

The 7th Circuit was not impressed, criticizing Ethicon’s “flurry of arguments,” and “its highly generalized statements fall far short of satisfying the legal standard.”

“One issue in particular warrants special mention upfront,” Circuit Judge Diane Sykes wrote for the 7th Circuit, that the plaintiff does not have to produce evidence of a reasonable alternative design for the product. It applied TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 209 (Ind. 2010), which specifically rejected an alternative-design requirement.

The court also held that the plaintiff’s state-law judgment was not preempted by federal law. Ethicon started marketing Prolift in 2005 and in 2007 submitted a 510(k) premarket application for Prolift when the FDA demanded one. The trial judge rejected Ethicon’s argument that the federal regulatory scheme preempted Indiana law, and the 7th Circuit affirmed.

The 7th Circuit ruled that “On this record a reasonable jury could conclude that Prolift was unreasonably dangerous.”

“Ethicon conceded that it hadn’t conducted any human trials before releasing Prolift, so it couldn’t present a safety record. Instead, it offered testimony that Prolift was generally an improvement over its predecessor.”

Ethicon’s many losses in the courtroom

A total of 1,213 lawsuits against Ethicon have been consolidated before US District Judge Joseph R. Goodwin in MDL 2327, IN RE: Ethicon, Inc., Pelvic Repair System Products Liability Litigation.

Of all the mesh manufacturers, J&J’s Ethicon has been the slowest to offer settlements, despite many losses in the courtroom, most notably a 2019 verdict from a Philadelphia jury that awarded $120 million:

  • In February 2013, Johnson & Johnson lost the first bellwether trial involving its transvaginal mesh implants. A New Jersey jury returned an $11 million verdict against Ethicon for injuries caused by its Gynecare Prolift. Linda Gross claimed that she required 18 revision surgeries after receiving the mesh implant.
  • In September 2014, Johnson & Johnson’s Ethicon Inc. unit lost a $3.27 million verdict to a West Virginia woman who claimed she was injured by the company’s Gynecare TVT Obturator, or TVT-O, transvaginal mesh device.
  • In December 2015, Johnson & Johnson lost a $12.5 million verdict to a woman who claimed she was injured by the company’s Prolift implant. Patricia Hammons claimed complications from the device forced her to have multiple revision surgeries.
  • In August 2017, Peggy Engleman filed a lawsuit against Ethicon and claimed the company’s TVT-Secur mesh caused serious complications including infections, bleeding and severe pain. A jury awarded her $20 million.
  • In December 2017, a New Jersey jury awarded $15 million to Elizabeth Hyrmoc. The jury awarded $4 million for pain and suffering, $10 million for punitive damages and $1 million for loss of consortium.
  • In January 2019, a Philadelphia jury awarded $41 million to Suzanne Emmett and her husband, Michael. The award included $25 million in punitive damages. She had Ethicon mesh implanted in 2007 and had multiple revision surgeries for bleeding, infections and painful sex.
  • In April 2019 a Philadelphia jury awarded $120 million to Susan McFarland, including $100 million in punitive damages. McFarland had a strip of TVT-O mesh implanted in 2008. She had surgery that did not alleviate pain and constant urinary tract infections. She has not been able to have sex since she received the implant.
  • In May 2019, a Philadelphia jury awarded $80 million to Patricia Mesigian, $50 million of which was for punitive damages. Mesigian had a Prolift implanted in 2008. The mesh eroded tissue and caused pelvic pain, inflammation and infections.

Ethicon does have some success in court. In April 2014, Linda Batiste won a $1.2 million state lawsuit against Johnson & Johnson. A Texas jury found that the mesh bladder sling that Batiste received was defective. Batiste claimed the sling eroded inside of her, causing severe pain and medical problems. An appeals court judge later overturned the verdict, saying Batiste failed to prove that the sling caused her injuries.


Learn the Business of Mass Torts, How to Avoid Getting Screwed in an MDL, the Behind-the-Curtain Information on Taxotere, Truvada, Hernia Mesh, and Other Emerging and Current Litigations… Register Today for the Only Mass Tort Immersion Course.

The Mass Tort Nexus Four Days to Mass Tort Success Course gives you the knowledge, information and skills that current “mass tort insiders” learned the hard way (trial and error). It is better to learn from the mistakes of others than to make those same mistakes yourself.

If you are interested in working smarter versus harder, and achieving the financial goals you have set for yourself and your firm, the Four Days to Mass Tort Success Course is the place to start. Click on the image below to register for the November course. You may also call or email Barbara Capasso or Anne-Marie Kopek at 954-530-9892, email barbara@masstortnexus.com or annemarie@masstortnexus.com

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Attacking and Lying, Johnson & Johnson is Battered by Talcum Powder – Cancer Litigation

Ten years into the nationwide litigation over talcum powder, Johnson & Johnson is bleeding billions of dollars in settlements, legal fees, jury verdicts, and stock valuation. The company faces 15,299 cases nationwide in federal court, but all of the action so far has been in state courts.

The U.S. Justice Department started a criminal investigation in July 2019 into whether Johnson & Johnson lied to the public about the possible cancer risks of its talcum powder. A grand jury in Washington, DC, is examining documents related to what company officials knew about any carcinogens in their products.

The FDA announced on October 18, 2019, that over 33,000 bottles of Johnson’s Baby Powder were voluntarily recalled after testing positive for asbestos. Johnson & Johnson voluntarily recalled one lot of baby powder, after a sample tested positive for asbestos.

Johnson & Johnson has known about cancer-causing asbestos in its talc products since 1957. But in a deny-and-attack litigation strategy, the company has lied about it to consumers and the government, has faked research, has covered up its own findings about asbestos in talc, has bullied independent researchers and has stonewalled litigants.

Juries in state courts, where all the trials took place, have held J&J liable for failing to warn consumers that its baby powder causes fatal ovarian cancer and mesothelioma.

Through it all, J&J implausibly contends that its baby powder and talcum powder is “safe” – a claim that has been proven wrong. Meanwhile, scientists urge consumers not to use baby powder because of the cancer risk.

Plaintiff strategies

Attorney Mark Lanier of Houston, who won a $4.7 billion talc verdict against Johnson & Johnson this summer, told CNBC in December that the recent $50 billion plunge in shares of J&J plays into his hands in seeking a settlement with the company.

“This litigation, these problems can be resolved [for] much, much less than” than the $50 billion loss in J&J’s stock market value, Lanier said. “It serves my purposes as a litigator to say, ‘Yes, get their attention; keep driving the stock down.’”

Lanier represented 22 women with ovarian cancer who proved that J&J’s talc-based products, including its baby powder, contain asbestos and caused them to develop ovarian cancer. In August 2019, a Missouri judge affirmed the nearly $4.7 billion jury award.

“If the company continues to handle [the litigation] wrongly, then I think the company is going to continue to have problems that cost it two, three, four, five times what it should,” Lanier said. “Every case ultimately settles. Every case finds resolution. At some point, it’s a business decision for the litigants as well as for the company. And smart minds can prevail on that.”

The key turning point in the litigation came in 2018 when J&J finally complied with discovery requests, which disclosed damning revelations that its own tests have found asbestos in its talc for 60 years and that the company lied to the FDA about it.

Since then plaintiff lawyers have introduced the internal documents into evidence with devastating results at trial. Most of the standing verdicts have involved plaintiffs with mesothelioma.

  • $4.7 billion awarded in December 2018 to 22 women with ovarian cancer. A Missouri state jury made the award after it heard that Johnson & Johnson has known for decades about the risk of asbestos contamination in its talc.
  • $325 million awarded in May 2019 in New York to Donna Olson, whose mesothelioma was caused asbestos-laced Johnson & Johnson baby powder. The company’s damning internal documents were used as evidence.
  • $117 million awarded by a New Jersey jury in April 2018 to Steven Alonzo, who has mesothelioma.
  • $40.3 million awarded by a California jury in October 2019 to Nancy and Phil Cabibi because the company’s baby powder was tainted with asbestos. In 2017, Nancy was diagnosed with mesothelioma.
  • $37.3 million awarded by a New Jersey jury in September 2019 to four plaintiffs claiming they developed mesothelioma from inhaling asbestos allegedly present in Johnson & Johnson’s cosmetic talc products. The judge actually struck the closing argument by defense lawyer Diane Sullivan for accusing the plaintiffs’ attorneys of creating evidence and being sinister.
  • $29.4 million awarded by a California jury in a March 2019 trial involving a Teresa Leavitt, who proved that her mesothelioma is tied to her regular use of Johnson & Johnson’s talcum powder.
  • $25.75 million awarded by a California jury in May 2018 to Joanne and Gary Anderson. She was diagnosed with mesothelioma and proved that Johnson & Johnson was negligent and did not warn consumers about possible health risks from its Baby Powder.
    • Several additional verdicts are in the $25 to $20 million range. Linda O’Hagan was diagnosed with mesothelioma after using asbestos-laced baby powder and she filed suit in Oakland, CA.

Johnson & Johnson finally began settling cases in 2019, but most are hidden because the company forces plaintiffs to sign a confidentiality agreement. One settlement that went public was for $2 million on January 6, 2020.

Lawyers who won the plaintiff verdicts include Mark Lanier, Eric Holland, Christopher Placitella, Tim Meadows, Joseph Satterley, Jerome Block, David Greenstone, Mark Robinson, and Michael Miller – plus an army of others.

Defense successes

Defense attorneys are led by Peter Bicks of Orrick, Herrington & Sutcliffe and include Allison Brown of Skadden, Morton Dubin of Orrick, and Diane Sullivan of Weil, Gotshal & Manges.

Johnson & Johnson has found courts to overturn large plaintiff verdicts, but they are based on a jurisdictional issue – and not on the merits of the case. Most of the reversed cases are in Missouri, where an appeals court ruled that 1,000 out-of-state plaintiffs could not bring suit in the state.

The company has successfully used the June 19, 2017, US Supreme Court ruling in Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773. The Court held that California courts lacked personal jurisdiction over the defendant on claims brought by plaintiffs who are not California residents and did not suffer their alleged injury in California.

This led to several reversals of ovarian cancer verdicts:

  • A trial judge in California overturned a $417 million talc cancer verdict in October 20, 2017. Relying on the Bristol-Myers Squibb case, the judge reversed the 2016 award to Eva Echeverria, who developed ovarian cancer.
  • A Missouri appeals court threw out a $110 million verdict in October 2019, awarded to Lois Slemp, who got cancer from the company’s baby powder. The court said she should not have been allowed to bring her ovarian-cancer lawsuit to trial in St. Louis because she is a resident of Virginia.
  • A $72 million verdict in 2016 in favor of the family of a woman whose death from ovarian cancer was reversed by the Missouri Court of Appeals, Eastern District in October 2017. The court said the case over Alabama resident Jacqueline Fox’s death from ovarian cancer should not have been tried in St. Louis.
  • Plaintiffs have also suffered dismissals, hung juries and mistrials in mesothelioma and ovarian cancer cases.

Andreas Saldivar has been a leading defense expert for Johnson & Johnson, testifying up to 30 trials. The company was shocked when his lab found asbestos in Johnson’s Baby Powder in September 2019. This prompted the humiliating recall of over 33,000 bottles of Johnson’s Baby Powder in October 2019.

The lab, AMA Analytical Services, Inc. was working under a contract with the FDA, which stood by the finding. When plaintiff lawyer Nate Finch asked an Indianapolis judge to let him tell the jury about it, J&J quickly settled the case with a confidentiality agreement.

Meanwhile, when plaintiff experts testify, they lead to spectacular verdicts like the $4.7 billion award in December 2018 in Missouri state court.

They include Dr. William Longo of Suwanee, GA, who has testified for talc plaintiffs for 30 years. He is a material scientist/electron microscopist who specializes in the analysis of asbestos-containing materials. In 1983, he founded Micro Analytical Laboratories.

Other experts include James R. Millette Ph.D. of Cincinnati, an engineer who is a Fellow of ASTM-International and serves as Vice-Chair for Air Quality. He is also a Fellow of the American Academy of Forensic Scientists.

Another witness is Dr. David Egilman, who served as the editor of a journal that published his 2014 article that lawyers frequently cite as the foundation for opinions talc contains asbestos. Egilman, a clinical professor of family medicine at Brown University, said he was first retained in a talc case two years ago and has billed $1 million in the litigation since.

The litigation will continue for years to come because talc and asbestos are found together in talc mines. The elemental structure of talc and chrysotile asbestos are nearly identical. Both Talc and Chrysotile Asbestos are formed from the same four basic elements: magnesium, silicon, hydrogen, and oxygen.

“It is unlikely that any naturally occurring talc deposit would not also contain some asbestos. Combine the foregoing with the fact that there is no practicable and economical means by which to separate asbestos from talc, it is reasonable to conclude that, it is more likely than not, that all talc contains asbestos,” writes John Ray, who has been a leading consultant to the Mass Tort industry for more than a decade.


Learn the Business of Mass Torts, How to Avoid Getting Screwed in an MDL, the Behind-the-Curtain Information on Taxotere, Truvada, Hernia Mesh, and Other Emerging and Current Litigations… Register Today for the Only Mass Tort Immersion Course.

The Mass Tort Nexus Four Days to Mass Tort Success Course gives you the knowledge, information and skills that current “mass tort insiders” learned the hard way (trial and error). It is better to learn from the mistakes of others than to make those same mistakes yourself.

If you are interested in working smarter versus harder, and achieving the financial goals you have set for yourself and your firm, the Four Days to Mass Tort Success Course is the place to start. Click on the image below to register for the November course. You may also call or email Barbara Capasso or Anne-Marie Kopek at 954-530-9892, email barbara@masstortnexus.com or annemarie@masstortnexus.com

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Recalls Underway for Zantac and Axid Antacids Because of Cancer Impurity

Drug companies are recalling batches of Zantac (Ranitidine) and Axid (Nizatidine) proton-pump inhibitors because of contamination by a cancer-causing impurity.

  • Mylan Pharmaceuticals is conducting a voluntary nationwide recall, to the consumer level, of three lots of Nizatidine Capsules, (including the 150mg and 300mg strengths).
  • Appco Pharma LLC is voluntarily recalling prescription ranitidine hydrochloride capsules.
  • Northwind Pharmaceuticals is voluntarily recalling prescription ranitidine tablets (150 mg and 300 mg), manufactured by Glenmark Pharmaceutical Inc.

The antacid drugs are being recalled due to detected trace amounts of NDMA, a cancer-causing impurity. NDMA is a known environmental contaminant and found in water and foods, including meats, dairy products and vegetables. It has been classified as a probable human carcinogen, according to the International Agency for Research on Cancer.

FDA is alerting patients and health care professionals to the voluntary recalls of ranitidine and Nizatidine.

Used by millions

Zantac is a heartburn medication used by millions of Americans. OTC ranitidine is commonly used to relieve and prevent heartburn. Prescription strengths are also used to treat and prevent more serious ulcers in the stomach and intestines. Multiple companies sell generic versions of both the OTC and prescription products.

Mylan’s bottles of Nizatidine were distributed nationwide to wholesalers, mail order pharmacies, retail pharmacies, and a distributor between June 2017 and August 2018.
Nizatidine is indicated for the short-term treatment of active duodenal ulcers and active benign gastric ulcers, and for endoscopically diagnosed esophagitis and associated heartburn due to gastroesophageal reflux disease (GERD).

Both Zantac and Axid are proton pump inhibitors (PPIs) that reduce the production of acid by blocking the enzyme in the wall of the stomach that produces acid that is responsible for most ulcers in the esophagus, stomach, and duodenum.

Active litigation

As of December 16, 2019, there are 13,245 lawsuits in IN RE: Proton-Pump Inhibitor Products Liability Litigation (No. II) before US District Judge Claire C. Cecchi in MDL 2789.

The lawsuits involve people who’ve taken prescription and over-the-counter PPIs such as:

  • Dexilant (dexlansoprazole)
  • Nexium (esomeprazole) and Nexium 24Hr
  • Prevacid (lansoprazole) and Prevacid 24HR
  • Prilosec (omeprazole) and Prilosec OTC
  • Protonix (pantoprazole)

The MDL plaintiffs allege that the heartburn drugs they took damaged their kidneys. They claim that the PPI manufacturers — such as Takeda Pharmaceuticals, AstraZeneca Pharmaceuticals, Pfizer Inc. and The Procter & Gamble Co. — should have known about the risks of these drugs and warned them.

Consumers who’ve filed suit allege the blockbuster drugs have caused them to develop serious kidney problems including:

  • Acute Interstitial Nephritis (AIN)
  • Acute Kidney Injury
  • Chronic Kidney Disease (CKD)
  • End Stage Renal Disease (ESRD)

The proton-pump litigation has proceeded since the MDL was created in 2017.

Learn the Business of Mass Torts, How to Avoid Getting Screwed in an MDL, the Behind-the-Curtain Information on Taxotere, Truvada, Hernia Mesh, and Other Emerging and Current Litigations… Register Today for the Only Mass Tort Immersion Course.

The Mass Tort Nexus Four Days to Mass Tort Success Course gives you the knowledge, information and skills that current “mass tort insiders” learned the hard way (trial and error). It is better to learn from the mistakes of others than to make those same mistakes yourself.

If you are interested in working smarter versus harder, and achieving the financial goals you have set for yourself and your firm, the Four Days to Mass Tort Success Course is the place to start. Click on the image below to register for the November course. You may also call or email Barbara Capasso or Anne-Marie Kopek at 954-530-9892, email barbara@masstortnexus.com or annemarie@masstortnexus.com

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JUUL Vaping Litigation Could Be as Big as Opioid Actions

Plaintiffs in the mounting JUUL mass tort litigation docket are pursuing the same successful legal theories against the maker of addictive nicotine vape pens that are being used against the pharmaceutical companies that made addictive opioids.

With the creation of a JUUL MDL (multi-district litigation docket), the litigation is on its way to being as big as the opioid MDL.
Plaintiffs in the opioid litigation recovered $465 million in November 2019 in State of Oklahoma v. Johnson & Johnson. JUUL, just like J&J, engaged in:

  • Deceptive marketing about the benefits of its products.
  • Downplayed the addictive risks by saying the vape pens were “totally safe.”
  • Caused a public nuisance worse than the opioid crisis.

Opioids were involved in almost 400,000 overdose deaths from 1999 to 2017, according to the U.S. Centers for Disease Control and Prevention. In comparison, 5.3 million youth were current e-cigarette users in 2019, up from 3 million students in 2017, according to the 2019 National Youth Tobacco Survey.

In the JUUL litigation, plaintiffs are similarly alleging the vaping giant created a public nuisance, violated deceptive trade practice laws and RICO laws, was negligent and is strictly liable for defective design and manufacturing of its “nicotine delivery systems.”
JUUL lawsuits also allege fraudulent concealment, conspiracy with tobacco companies, intentional misrepresentation, and infliction of emotional distress.

Tobacco company influence

The JUUL litigation is also about promoting a habit-forming product that turns customers into addicts. The FDA and Surgeon General both described the underage use of e-cigarettes as an “epidemic.”

JUUL’s market value is $24 billion (down from $38 billion), and there is a deep pocket in the litigation: the cigarette company Altria, which has a $92 billion market capitalization. Altria bought a 35% stake in JUUL in December 2018, paying close to $13 billion.

A few months later the CEO of JUUL stepped down and he was replaced by a top executive from Altria. Altria discontinued its own e-cigarette products and gave JUUL prime shelf-space with its traditional Marlboro cigarettes.

It is no surprise that JUUL’s marketing and advertising targeted minors, following the classic playbook of the tobacco companies. Colorful JUUL ads depicted young people dancing, portrayed the nicotine device as cool and rebellious, and offered kid-friendly flavors like Mango, Fruit, and Crème.

Reaching critical mass

JUUL litigation is in the “litigation phase” now that the MDL was created on October 2, 2019. Many attorneys will seek clients at this point in the litigation because it has reached critical mass, and there are scores of product liability lawsuits filed in federal courts nationwide.

The Judicial Panel on Multidistrict Litigation has recognized that there are common factual issues that are sufficiently complex to merit centralized treatment. The Panel created MDL 2913, JUUL Labs, Inc., Marketing, Sales Practices, and Products Liability Litigation. It designated U.S. District Judge William H. Orrick, III of the Northern District of California to hear the cases in San Francisco, where JUUL is headquartered.

JUUL is the primary defendant because it has a 75% market share of the vaping market. However, there are eight additional defendants: Beard Vape, Direct eLiquid, Electric Lotus, Electric Tobacconist, Eonsmoke, Juice Man, Tinted Brew, and VapeCo.

When it created MDL 2913, there were only 10 cases filed in federal court in 5 states. Now there are 182 cases from across the country. Plaintiffs include school districts, states, counties and individuals.

  • School districts had to divert dollars away from classroom instruction and instead spend it on counseling and programs to help inform students of the dangers of vaping.
  • Individual customers suffered addiction, respiratory system damage, permanent brain damage, mood disorders, stroke, heart attack, and other cardiovascular injuries. The mother of an 18-year old in Florida has filed a wrongful death action, Lisa Marie Vail, individually and on behalf of the Estate of Daniel David Wakefield, deceased vs. JUUL Labs, Inc., in US District Court in the Northern District of California.

Separately, Siddharth Breja, a former senior vice president at JUUL sued the company in October 2019, alleging that JUUL sent to market at least “one million mint-flavored e-cigarette nicotine pods that it admits were contaminated, and against Mr. Breja’s insistence and protests, refused to recall those contaminated pods or even issue a product health and safety warning.”

Harvard researchers announced on January 3, 2020 that they found the microbial toxin Glucan in JUUL pods. Glucan is a component of fungal cell walls that can cause inflammation in the airways and can lead to long-term lung damage, according to the researchers.

Anemic response from the government
A Congressional hearing in July 2019 produced testimony that JUUL said in a school that:

  • JUUL “was much safer than cigarettes” and that “FDA would approve it any day.”
  • JUUL was “totally safe.”
  • A student “…should mention JUUL to his [nicotine-addicted] friend…because that’s a safer alternative than smoking cigarettes, and it would be better for the kid to use.”
  • “FDA was about to come out and say it [JUUL] was 99% safer than cigarettes…and that…would happen very soon….”

The Trump administration’s response has been anemic. The FDA merely issued a warning letter “expressing concern” and saying the agency was “troubled.” In September 2019 the FDA said, “JUUL has ignored the law,” but then it only requested documents and threatened further action.

How JUUL is more dangerous than cigarettes

Just as tobacco use of teens dropped to 5% in 2017, the launch of JUUL has pushed the number of high schoolers using tobacco products back up to nearly 30%.

“Julling” is much more dangerous and insidious than smoking cigarettes. The JUUL pods are easily hidden from parents and teachers because they look like USB drives. A JUUL pod is far less conspicuous than a pack of cigarettes and a lighter. JUUL vapor smells far less than the pungent odor of burning tobacco. Students can exhale the JUUL vapor under their shirts to avoid detection.

The JUUL vapor is much less harsh than tobacco smoke, making JUUL easy to start using. Students call JUUL the “iPhone of vapes” because of its sleek and minimalistic design.

And then there is the JUUL high.

An interview with a 15-year-old describes the kick like this:

“The first time was in the lunchroom. Everyone else was hitting it and I was like “alright, I want to try that.” I guess I knew there was nicotine in it, but I had no idea that it had so much. When I hit it for the first time it was, like, really crazy. I felt a really big buzz off of barely anything.”

“It hurt my throat more than anything else I’ve done. I hit it and coughed immediately. At first, it was just fun and it was something that you could do anywhere. It’s so easy. Then it just became something I was doing nonstop, but I still felt a buzz. Now, I go crazy if I don’t have it. I don’t even feel a buzz anymore.”

The JUUL punch comes from a mega-dose of nicotine. One JUUL pod contains at least as much nicotine as a pack of cigarettes, or 20 cigarettes.

Nicotine is a neurotoxin that is one of the most addictive chemicals in the world. Nicotine is particularly dangerous to young people, whose brains are still developing through age 25. Nicotine is not only addictive but also permanently alters the structure of the brain and causes permanent mood changes and other cognitive disorders.

The Surgeon General concluded that “The use of products containing nicotine poses dangers to youth, pregnant women, and fetuses. The use of products containing nicotine in any form among youth, including in e-cigarettes, is unsafe.”

Marketing JUUL to Kids

JUUL was first launched in summer 2015 in schools, on social media and even billboards in New York City’s Times Square. The company put up YouTube videos, advertising in Vice Magazine, sponsorship of music events, and 50 highly stylized launch parties with free JUUL starter kits.

Just as the opioid companies paid doctors to shill their addictive product, JUUL paid social media influencers to promote its e-cigarette. JUUL’s ad agency said the 2015 “Vaporized “campaign “created ridiculous enthusiasm” for the campaign hashtag, #DoIt4JUUL.

By 2017, JUULing had taken off among America’s young people.

The marketing campaign came to a crashing halt after the FDA raided JUUL’s headquarters in October 2019, seizing more than 1,000 documents about the company’s sales and marketing practice. The JUUL MDL was created the same month.

Now that Juul had a huge base of young, addicted customers, it stopped selling candy flavors, pulled down all of its social media, limited sales to its website at www.JUUL.com, claimed that buyers must be at least 21, and asserted that “JUUL was developed as a satisfying alternative to cigarettes” for adults.

The website has “age verification” screening questions, which are easily spoofed with a parent’s driver license. The age verification is easily avoided by online resellers like eBay and Craigslist that have no age verification.

A starter kit sells for $35, JUUL pods cost $10 to $16, and the device costs $15 to $20. Exactly like cigarettes, the current flavors are Virginia tobacco, classic tobacco and menthol.

Today the company says, “JUUL was developed as a satisfying alternative to cigarettes.” But the lawsuit filed by the state of North Carolina alleges, “In reality, JUUL products are doing exactly the opposite of what JUUL claims, serving not as an “off-ramp” from traditional cigarettes for experienced smokers, but as an enticing “on-ramp” for young, inexperienced, and frequently underaged users.

Once again, it is up to America’s trial lawyers to hold a giant corporation accountable for its dangerous and damaging product.


Learn the Business of Mass Torts, How to Avoid Getting Screwed in an MDL, the Behind-the-Curtain Information on Taxotere, Truvada, Hernia Mesh, and Other Emerging and Current Litigations… Register Today for the Only Mass Tort Immersion Course.

The Mass Tort Nexus Four Days to Mass Tort Success Course gives you the knowledge, information and skills that current “mass tort insiders” learned the hard way (trial and error). It is better to learn from the mistakes of others than to make those same mistakes yourself.

If you are interested in working smarter versus harder, and achieving the financial goals you have set for yourself and your firm, the Four Days to Mass Tort Success Course is the place to start. Click on the image below to register for the November course. You may also call or email Barbara Capasso or Anne-Marie Kopek at 954-530-9892, email barbara@masstortnexus.com or annemarie@masstortnexus.com

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Can the Trump/Barr Justice Department Aid Monsanto/Bayer in the RoundUp Litigation?

The news that the Trump/Barr Justice Department and EPA are attempting to come to the rescue of Monsanto in the Roundup litigation emboldened stockholders and caused concern among Roundup plaintiffs and their attorneys. Bayer stock saw its first significant uptick since the beginning of the Roundup litigation and the market reacted with general optimism after the December 20th Amicus brief was filed by the Hardeman v. Monsanto Company et. al. Trump/Barr DOJ/EPA. Apparently, Bayer stockholders are not familiar with the now common axiom “Everything Trump Touches, Fails”.

This article will clarify why Bayer stockholders have nothing to be cheer about and why Roundup Plaintiffs and there counsel should not be overly concerned with the fact that the most corrupt administration in our history has for some reason decided to come to the aide of Monsanto/Bayer.

EPA Amicus Brief: https://usrtk.org/wp-content/uploads/bsk-pdf-manager/2019/12/EPA-amicus-brief-supporting-Monsanto-in-Hardeman-appeal.pdf

Appeal: https://usrtk.org/wp-content/uploads/bsk-pdf-manager/2019/12/Hardeman-appeal-by-Monsanto.pdf

Monsanto’s appeal in the Hardeman case raises numerous issues however, it appears to MTN that Monsanto’s ultimate goal is to use the highly questionable EPA Statements from August of 2019 to argue that all plaintiffs failure to warn claims (all cases arising under all State laws) are preempted as a result of the August of 2019 EPA action.

This article will focus on dispelling the concept that the August of 2019 EPA action could serve as a “litigation killer” and dispose of all plaintiffs’ cases currently on file alleging that Roundup caused them to suffer from Non-Hodgkin’s Lymphoma.

As a preliminary matter, any attempt to use the August of 2019 EPA Statement to dispose of all plaintiffs cases would have to rely on arguments sounding in “The EPA would not have approved the label (warnings) change plaintiffs claim were needed, if Monsanto had actually filed a formal request with the EPA to add the dispute warnings language”. Arguments sounding in what a Federal Agency would or would not have done had a manufacturer actually attempted to effectuate the disputed label change were recently foreclosed on in Merck Sharp & Dohme Corp. v. Albrecht (Fosamax). Without regard to the SCOTUS ruling in Albrecht specifically, we will focus on why any “global” failure to warn defense sounding in Federal Preemption of State Law failure to warn claims fails.

THE EPA STATEMENTS FORECLOSE ON PREEMPTION DEFENSE

Below is an exact quote from the EPA Statement (link previously provided):

Exact Quote: The EPA will no longer approve (emphasis added) product labels claiming glyphosate is known to cause cancer – a false claim that does not meet the labeling requirements of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

Note: The EPA has the power to disapprove statements (on label) that are false and misleading, the EPA does not have the power to determine that a statement that is factually true as stated is a false claim simply because the EPA disagrees with any conclusion that might be drawn from the otherwise truthful statement.

The EPAs own statements provide clear and convincing evidence that the EPA would have approved some form of cancer warning on the Roundup label prior to August of 2019 had the company requested to make such an addition to their label. Any argument by the Monsanto /Bayer defendant that the EPA would not have approved any form of cancer warning prior to August of 2019 fails in as much as the EPA did in fact approve warnings on Glyphosate products prior to August of 2019. Below are three examples, two of these examples contain language that that could not be deemed to be false and misleading and the other would likely be preempted post August of 2019.

EXAMPLE OF EPA WARNING NOT FORECLOSED ON BY AUGUST 2019 EPA ACTION

May 6, 2015 Label Excerpt:
https://www.doyourownpestcontrol.com/SPEC/MSDS/Remuda%20Full%20Strength_SDS_2015-05.pdf

“Carcinogenicity / Chronic Health Effects: Prolonged overexposure to glyphosate may cause effects to the liver. EPA has given glyphosate a Group E classification (evidence of non-carcinogenicity in humans). In 2015, IARC classified glyphosate as a probable human carcinogen Group 2A based on limited human evidence and some evidence in animals.”

Comment: This Statement remains true and accurate and could arguably continue to be cited by Plaintiffs as an example of a more adequate warning that the warning provided on the label of Monsanto Products. The , The Statement that “The IARC classified glyphosate as a probable human carcinogen Group 2A based on limited human evidence and some evidence in animals “ remains true to day in that the IARC did in fact make (and continues to make) the statement to this date. The fact that the EPA disagrees with the IARC statement does not render the fact that the IARC made the statement false and misleading. The Statement made on the above label example remains true to this date, the Statement is not false and misleading nor does the statement constitute a “false claim”. The IARC made the Statement, the label states that the IARC made the Statement. The label does not offer an opinion on the Statement, the label simply informs the user of the fact that the IARC made the Statement.

It would arguable be far falser and more misleading to exclude the IARC Statement, given the fact that the IARC is a worldwide recognized authority on the subject of cancer, than it would be to include the Statement. The label also includes the EPAs statements which contradict the IARC. When contradicting opinions exist between authorities, how would the end user of a product be better served (better warned) by including one authorities conclusion to the exclusion of another’s?

EXAMPLE OF WARNING SUBJECT TO PREEMPTION POST 2019

Page 6 1/10/2017 Label
https://www.doyourownpestcontrol.com/SPEC/MSDS/GlyPhoSel_Pro_Dry_75_SG_SDS.pdf

Excerpt: “California Proposition 65: This product does not contain substances known to the state of California to cause cancer and/or reproductive/developmental effects.”

The above is an example of a warning that would be impacted by the August 2019 EPA action however, any argument that the EPA would not have allowed (preempt) this warning be provided to individuals who were exposed to a Monsanto Product label fails as the EPA did in fact allow this warning prior to August 2019.

ANOTHER EXAMPLE OF EPA WARNING NOT FORECLOSED ON BY AUGUST 2019 EPA ACTION

Page 4 May of 2015
https://www.doyourownpestcontrol.com/SPEC/MSDS/Martins_Eraser_Max_MSDS.pdf

Exerpt: Carcinogenicity / Chronic Health Effects: Prolonged overexposure to glyphosate may cause effects to the liver. EPA has given glyphosate a Group E classification (evidence of non-carcinogenicity in humans). Canada PMRA has classified glyphosate as non-carcinogenic. In 2015 IARC classified glyphosate as a probable human carcinogen Group 2A based on limited human evidence and some evidence in animals. Imazapyr did not cause cancer in laboratory animals. EPA has classified imazapyr as a Group E (evidence of non-carcinogenicity for humans) carcinogen.

Comment: Again, the warning that “In 2015 IARC classified glyphosate as a probable human carcinogen Group 2A based on limited human evidence and some evidence in animals” is an absolutely true statement and therefore cannot be considered false and misleading. Had the IARC not made such statement, including this language in the warning label would be false and misleading, but this is not the case.

Monsanto is likely to continue to press the relevance and importance of the August 2019 EPA Statements by attempting to conflate the doctrine(s) of Field Preemption with the Doctrine of Express Preemption under “impossibility preemption” theories. These attempts should fail in that Congress having empowered the EPA to preempt (foreclose on) States from passing laws imposing additional labeling requirements (beyond those imposed by the EPA) does not equate to Congress having Expressly Preempting Plaintiffs from arguing that a given defendants could have (it was possible) sought approval to add different, stronger, better or more adequate warnings than those the defendant actually sought to have approved by the agency.

FIELD PREEMPTION VS EXPRESS (IMPOSSIBILITY) PREEMPTION

Field occurs when Congress, without expressly declaring that state laws are preempted, nevertheless legislates in a way that is so comprehensive as to occupy the entire field of an issue.

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) is a United States federal law that set up the basic U.S. system of pesticide regulation to protect applicators, consumers, and the environment. Through the passage of FIFRA Congress did expressly declare that no State could impose labeling requirements in addition to those imposed under FIFRA. California’s right to impose additional labeling requirements (beyond those imposed by the EPA, is arguably foreclosed on under FIFRA.

Notwithstanding the foregoing, and as expressed by SCOTUS in the seminal case of Wyeth v. Levine, 555 US 555 – Supreme Court 2009, the maker of a Federally Regulated (as to warning labels) always remains the “master of their label”. Plaintiffs remain free to argue that the manufacturer should have submitted a label to the EPA for approval which contained a different (stronger or better) warning than that contained in the label the manufacturer submitted for approval and that their failure to do so renders the warnings provided on the label which was submitted for approval inadequate under State Law. https://www.scotusblog.com/case-files/cases/wyeth-v-levine/

The only exception to the jurisprudence found in Wyeth v. Levine arises when a manufacturer submits a specific label for approval and the EPA (or the FDA) and the agency formally rejects the change sought by the manufacturer. See Merck Sharp & Dohme Corp. v. Albrecht (Fosamax Ruling). We find no argument put forth by Monsanto sounding in “ We requested the label change plaintiffs assert was necessary to “adequately warn” and the EPA rejected our request.” See: Merck Sharp & Dohme Corp. v. Albrecht (Fosamax)
https://www.scotusblog.com/case-files/cases/merck-sharp-dohme-corp-v-albrecht/

TAKE AWAYS

1. California (or others) Plaintiffs in which exposure to RoundUp occurred after August 2019 may not want to cite the language of California Prop 65 (related to Glyphosate) as an example of a more adequate warning.

2. The EPAs action of August 2019, should have no impact on cases in which exposure occurred before August 2019 without regard to California Prop 65 (relevant to the Hardeman case) as the EPA clearly did approve labels with warnings related to California Prop 65 prior to August 2019, including the time period in which Mr. Hardeman was exposed.

The argument that the EPA would not have approved any form of cancer warning prior to 2019 fails for the following reasons:

A. The language of the EPAs August 2019 statement is conclusive of the fact that the EPA would have approved some form of cancer warning prior to August 2019.
B. The EPA did in fact approve labels containing cancer warnings prior to August 2019 on labels submitted for EPA approval, when the manufacturer requested such approvals.

3. Warnings approved by the EPA for other glyphosate products prior to August 2019 which remain factually true, (not false nor misleading) taking into consideration the EPAs August 2019, remain available to plaintiffs to cite as “more adequate” than the warnings provided by Monsanto.

CONCLUSION

We do not argue that juries should not be allowed to consider any and all Statements made by the EPA. Of course, plaintiffs should also be allowed to conduct discovery to uncover any possible corruption, malfeasance or mistakes relevant to the EPAs statements and conclusions.

We do argue that there is no support under the law for any conclusion that once a Federal Agency makes a statement, expresses an opinion or conclusion, that litigants are foreclosed on entering evidence that contradicts the agency statements, conclusions or opinions under the circumstances relevant to this matter. The concept of “I have thus said, and therefore that which I sayeth is true” is the province and privilege of Kings. American citizens are free to challenge our own government’s lies and misrepresentations. The trier of fact holds the power to determine what is true and what is not.

We do not argue that the FIFRA (via the August 2019 action by the EPA) may not foreclose on the State of California’s right to impose the specific stronger label requirements than imposed by the EPA. We simply argue that the EPA could not (because it was not delegated the authority by congress) issue any Statement that could foreclose on all possible (stronger) warning language a plaintiff might allege would be required to render a label adequate under a given States laws, without the EPA having first having considered and rejected the exact language claimed by Plaintiff as necessary to provide an adequate warning.

We further argue that the two label examples, previously approved by the EPA, remain truthful (in no way false or misleading ) to this day and any plaintiff that puts forth this exact language as that which was needed to render the label adequate would not be arguing that the defendant be required to make a false and misleading statement and therefore the EPA is without the power to intercede on behalf of the defendant claiming that the agencies power to restrict manufacturers from making false and misleading statements extends to restricting statements that are factually true.

THE BURNING QUESTION

How desperate does Monsanto/Bayer have to be to turn to the Trump Administration for help. Then again, both Monsanto and Bayer have a history of being on the wrong side of things.

Bayer stockholders should all be hoping for a Trump re-election. If the U.S. elects a legitimate president later this year, the EPA could easily reverse course shortly thereafter.

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MDL Panel Sends Allergan Breast Implant Cases to the Honorary Brian Martinotti, U.S.District Court, District of New Jersey

The Judicial Panel on Multidistrict Litigation has assigned approximately 30 cases to U.S. District Judge Brian Martinotti of the District of New Jersey, under the style In Re: Allergan Biocell Textured Breast Implant Products Liability Litigation MDL No. 2921.

On December 18 2019 the Panel ruled that though the parties did not oppose centralization, they disagreed on the transferee district. The Plaintiffs had proposed the Central District of California, the Middle District of Tennessee, Southern District of Florida and the District of Kansas. Defendant Allergan had requested the District of New Jersey. The Court stated that “Defendant Allergan, USA, Inc. also has it’s headquarters and principal place of business in that district and a significant number of potential witnesses and common evidence would be located there. There are related cases pending in fourteen additional districts.

Briefly, the lawsuits allege that Allergan, based in Dublin, knew that its Biocell textured breast implants, in tens of thousands of women, increased the chances of getting anaplastic large cell lymphoma but failed to warn about those risks. Allergan recalled its implants July 24, 2019.

Recalled Products include:

Allergan Natrelle BIOCELL Textured Products:

  • Allergan Natrelle Saline-Filled Textured Breast Implants
  • Allergan Natrelle Silicone-Filled Textured Breast Implants
  • Allergan Natrelle® 410 Highly Cohesive Anatomically Shaped Silicone- Filled Textured Breast Implants
  • Allergan Natrelle 133 Plus Tissue Expander
  • Allergan Natrelle 133 Tissue Expander with Suture Tabs

Other pertinent information:

  • Lot numbers: All lots (for complete listing of all styles, see the FDA Safety Communication)
  • Manufacturing Dates: July 25, 2014 – June 21, 2019
  • Distribution Dates: September 14, 2014- July 24, 2019
  • Devices Recalled in the U.S.: 246,381
  • Date Initiated by Firm: July 24, 2019

The Court ruled that they “find that these actions involve common questions of fact, and that centralization will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. All actions arise out of Allergan’s announcement on July 24, 2019, of a voluntary worldwide recall of its BIOCELL textured breast implants and tissue expanders. The announcement followed the U.S. Food and Drug Administration’s request to initiate the recall based on the risk of breast-implant associated anaplastic large cell lymphoma (BIA-ALCL) associated with the products.4 All actions share complex factual questions arising from the allegation that Allergan’s BIOCELL textured breast implants and tissue expanders significantly increase the risk of developing BIA-ALCL, and that Allergan failed to warn the FDA, patients, and healthcare providers of this risk.” “The common factual questions include: (1) whether BIOCELL textured breast implants and tissue expanders can cause BIA-ALCL; (2) whether defendants knew or should have known of the risk of BIA-ALCL; (3) whether they provided adequate warnings as to the risk; and (4) the adequacy of defendants’ product.”

MDL No. 2921 – IN RE: Allergan Biocell Textured Breast Implant Products Liability Litigation

The Panel then ordered the actions listed on Schedule A of the Order pending outside of the District of New Jersey, be transferred there with the consent of that court.

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Xarelto Settlement Faces Legal Challenge

As the Xarelto Defendants continue to move to dismiss plaintiffs cases, utilizing the dismissal machine, created by Case Management Orders,  apparently stipulated to by certain members of the Xarelto Plaintiffs Steering Committee, other attorneys continue to aggressively fight for their clients.

Despite the fact that it appears these certain members of the Xarelto Plaintiff Steering Committees interest are now more aligned with the defendants than the Plaintiffs they purport to represent, other firms not on the PSC are pushing back.

Below is a copy of a motion that was filed challenging the propriety of  dismissals with prejudice based on the various “settlement orders” as well as the fact that the “settlement orders” have in essences created an unlawful opt in requirement. These arguments might be useful to firms in filing motions for reconsideration under FRCP 60 related to cases that have already fallen victim to the dismissal machine.

Motions have also been filed challenging the Xarelto MDL Courts subject matter jurisdiction (asserting the MDL Court lacks subject matter jurisdiction) over the private settlement agreement and thus lacks subject matter jurisdiction to enter orders to assist the parties in effectuating the terms of the settlement agreement (those orders I refer to as the “dismissal machine”.) I will cover the subject matter jurisdiction issues in other posts.

Below is the text of the motion mentioned above:

 

PLAINTIFFS’ OBJECTIONS TO SHOW CAUSE ORDERS

INTRODUCTION

In its Show Cause orders, this Court has stated that the Plaintiffs’ causes of action will be dismissed with prejudice as a penalty for Plaintiffs’ failure to submit an Enrollment Election Formand/or a Notice of Intent to Proceed. [Doc. 16218, Order Rescheduling Hearing to Show Cause; Doc. 15416, Order to Show Cause Regarding Plaintiffs Who Have Failed to Comply with CaseManagement Order 12A; Doc. 14877, Case Management Order 12A]. Pursuant to CMO 12A, only voluntary dismissals with prejudice are allowed. [Doc. 14877, Page 2 of 2.]

Plaintiffs on the attached Exhibit 1 (“Objecting Plaintiffs”), through undersigned counsel, object to the dismissal of their cases. Exhibit 1-A is a list of Plaintiffs who need more time to make an election, and Exhibit 1-B are a list of Plaintiffs who have made an election deemed deficient by BrownGreer. Objecting Plaintiffs’ cases should not be dismissed for four reasons. First, the prerequisites for the harsh remedy of dismissal with prejudice have not been met. Second, because there is no class certification, Plaintiffs are non-parties to the settlement and have no obligation to respond. Third, requiring that Plaintiffs undertake procedural hoops or face dismissal is akin to imposing an “opt in” class requirement, and as such is forbidden by operative law. Fourth, requiring a category of individuals in ill health to appear, in addition to the appearance of their counsel, as a penalty for not responding to a settlement offer not directed to them or presented in their individual cases is unreasonable.

ARGUMENT AND AUTHORITIES

The Prerequisites for Imposing the Harsh Remedy of Dismissal with Prejudice Have Not Been Met.

Federal Rule of Civil Procedure 41(b) provides, “if the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” Interpreting the Federal Rules of Civil Procedure, the jurisprudence has strictly circumscribed the instances in which a case can be dismissed with prejudice.

Dismissal with prejudice is “an extreme sanction that deprives a litigant of the opportunity to pursue his claim.” Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 247 (5th Cir.1980). “Dismissal with prejudice is appropriate only when there is ‘a showing of (a) a clear record of delay or contumacious conduct by the plaintiff, and (b) where lesser sanctions would not serve the best interests of justice.’” Griggs v. S.G.E. Mgmt., L.L.C., 905 F.3d 835, 844 (5th Cir. 2018) (quoting Gates v. Strain, 885 F.3d 874, 883 (5th Cir. 2018); further citation omitted). These are long standing requirements recognized in this Circuit. Rogers v. Kroger Co, 669 F.2d 317, 320 (5th Cir. 1982) (“This circuit has consistently held that Rule 41(b) dismissals with prejudice will be affirmed only upon a showing of a clear record of delay or contumacious conduct by the plaintiff, …, and where lesser sanctions would not serve the best interests of justice.”) (collecting cases; internal quotes omitted); Gonzalez, 610 F.2d at 247 (“we have consistently held that dismissal with prejudice is warranted only where a clear record of delay or contumacious conduct by the plaintiff exists, . . . and a lesser sanction would not better serve the interests of justice.”) (collecting cases; quotation marks omitted). “Because this test is conjunctive, both elements must be present.” Coleman v. Sweetin, 745 F.3d 756, 766 (5th Cir. 2014) (footnote omitted).

“In addition, [the appeals court] generally affirm[s] dismissals with prejudice only upon a finding of at least one of three aggravating factors: ‘(1) delay caused by [the] plaintiff himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional conduct.’” Coleman, at 766 n. 9 (quoting Price v. McGlathery, 792 F.2d 472, 474 (5th Cir.1986)); see also Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 326 (5th Cir. 2008) (“where this Court has affirmed dismissals with prejudice, it has generally found at least one of three aggravating factors: ‘(1) delay caused by [the] plaintiff himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional conduct.’”) McGlathery, 792 F.2d at 474). Put another way, “[b]efore an action can be dismissed with prejudice under Rule 41(b), two ‘requisite’ factors must be present and a third ‘aggravating’ factor usually should be present.” Springboards to Educ., Inc. v. Kipp Found., 325 F. Supp. 3d 704, 710 (N.D. Tex. 2018) (quoting Sealed Appellant v. Sealed Appellee, 452 F.3d 415, 417-18 (5th Cir. 2006)).

“Generally, where a plaintiff has failed only to comply with a few court orders or rules, [the appeals court has] held that the district court abused its discretion in dismissing the suit with prejudice.” Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1192 n.6 (5th Cir. 1992) (collecting cases); see also Vafaiyan v. Target Inc., 251 F. App’x 862, 864 (5th Cir. 2007) (quoting same and finding that dismissal was abuse of discretion where plaintiff failed to correct deficiency).

The Objecting Plaintiffs’ cases cannot be dismissed with prejudice for three, independent reasons: 1) a clear record of delay or contumacious conduct does not exist; 2) lesser sanctions would serve the best interests of justice; 3) there are no aggravating factors, making this remedy impermissibly draconian.

Plaintiffs are not guilty of clear delay or contumacious conduct.

“[D]elay which warrants dismissal with prejudice must be longer than just a few months; instead, the delay must be characterized by significant periods of total inactivity.” Bullard v. Burlington N. Santa Fe Ry. Co., 368 F. App’x 574, 581 (5th Cir. 2010) (quoting Millan v. USAA Gen. Indem., supra, 546 F.3d at 326-27; further citation and quotation marks omitted). The Bullard court found that, notwithstanding the district court’s evident frustration with plaintiffs, the court could not affirm a de facto dismissal with prejudice because there was an insufficient record of contumacious conduct. 368 F. App’x at 581-82. The court explained that “it is not a party’s negligence—regardless of how careless, inconsiderate, or understandably exasperating—that makes conduct contumacious.” 368 F. App’x at 581 (quotingMillan, 546 F.3d at 327).

The Coleman court reversed a dismissal with prejudice where the plaintiff failed to provide an address for the defendant, explaining that “negligent behavior” fails to rise to the level of material delay or contumacious conduct so as to justify dismissal with prejudice. 745 F.3d at 767. The Millan court similarly reversed dismissal, where the plaintiff failed to effect timely service, explaining that, “it is not a party’s negligence—regardless of how careless, inconsiderate, or understandably exasperating—that makes conduct contumacious; instead it is the ‘stubborn resistance to authority’ which justifies a dismissal with prejudice.” 546 F.3d at 327 (quoting McNeal v. Papasan, 842 F.2d 787, 792 (5th Cir.1988); further citation omitted).

The Gonzalez court reversed the trial court’s dismissal, reasoning that, “[t]he failure of plaintiffs counsel to obtain admission to the bar of court and to appear at the pre-trial conference did not amount to a clear record of delay or contumacious conduct.” 610 F.2d at 248 (quotation marks omitted). See also Hurman v. Port of Houston Authority, 990 F.2d 626 (5th Cir. 1993) (district court abused its discretion by involuntarily dismissing suit for failure to prosecute where plaintiff had failed to file a pretrial order and had failed to appear at docket call); Mosher v.

Keanster, 343 F. App’x 994, 995 (5th Cir. 2009) (failure to appear for a scheduling conference did not warrant dismissal; dismissal vacated and remanded).

Dismissal with prejudice does not serve the best interests of justice.

Even assuming for the sake of argument that the plaintiffs’ omissions could be characterized as “contumacious,” this does not compel the conclusion that the conduct requires immediate resort to the harshest of sanctions. Raborn v. Inpatient Mgmt. Partners Inc., 278 F. App’x 402, 406 (5th Cir. 2008) (“Even if it could be characterized as ‘contumacious,’ it is not the type of conduct that requires immediate resort to ‘the harshest of sanctions….’”) (quoting Porter v. Beaumont Enterprise and Journal, 743 F.2d 269, 272 (5th Cir.1984)). Failure to comply with a district court order does not establish that a lesser sanction would be futile. See Campbell v. Dretke, 261 F. App’x 702, 704 (5th Cir. 2008) (where plaintiff failed to comply with court order to re-file his complaint in compliance with proper form, court vacated and remanded dismissal, noting that there was no determination that lesser sanctions would not prompt diligent prosecution).

No aggravating factors exist.

There is no basis for finding that the victims of Xarelto have caused the delay here, or that they have acted intentionally. In stark contrast, they are not aware of the proceedings and/or are unable to complete the requisite paperwork due to factors other than intentional recalcitrance. See Exhibit 1, Declaration of Charlotte Long. Exhibit 1-A hereto identifies efforts to reach Objecting Plaintiffs, illustrating that their failure to comply with the Court-ordered procedures is not deliberate, and that the strong majority of these cases have only been on file for approximately six months. Exhibit 1-B hereto identifies Objecting Plaintiffs who intend to make an election that has been communicated to Brown Greer, but whose response has been deemed deficient. Under these circumstances, dismissal with prejudice as a penalty for failing to comply with the procedural requisites of the Show Cause order would be unduly harsh.

There is no showing of prejudice to the Defendants. The mere fact that reinstatement of the plaintiff’s case will require defendants to “expend funds necessary to present a defense” is not sufficient to establish prejudice. Raborn, 278 F. App’x at 407 (court abused its discretion in dismissing claim effectively with prejudice). See also Raymond v. Univ. of Houston, 275 F. App’x 448, 450 (5th Cir. 2008) (finding no aggravating factor and reversing dismissal notwithstanding negligence and a period of inactivity from April 16, 2006 to November 27, 2006; and from January 10, 2007 to March 26, 2007).

Because There Is No Certified Class, There Is No Obligation for Plaintiffs in Individually Filed Cases to Respond to a Global Settlement Agreement that Was Not Entered in, and Is Not Specific to, Them or Any of their Individual Cases.

Here, each Plaintiff has filed an individual case. The settlement is not a class action settlement. Moreover, there are serious constitutional impediments to certifying a class of individuals who have sustained personal injuries and/or death. See, generally, Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997); Ortiz v. FibreboardCorp., 527 U.S. 815 (1999).

In the absence of a certified class, the settlement documents at issue are not binding on these individual plaintiffs. Indeed, the Objecting Plaintiffs are non-parties to the settlement. The Defendants in the individually filed cases have not filed or presented a settlement offer addressed to, tailored to, or specific to the individual Objecting Plaintiffs or their cases. The settlement provides a grid. The Objecting Plaintiffs have not been informed where, on that grid, they fall according to the Defendants and according to BrownGreer. Therefore, there is no sum certain offer made to them at this time. There is no authority allowing dismissal as a penalty for failing to complete certain paperwork, to BrownGreer’s satisfaction, in response to a settlement offer that was not entered into the individual cases.

The Procedural Requirements Are Akin to Imposing an Opt-In Class Requirement, which Is Forbidden.

The Show Cause orders seek to punish the Objecting Plaintiffs for not satisfying the procedural requirements of a one-sided settlement offer that was not specifically directed toward any of the Objecting Plaintiffs, or their cases, individually. The law does not allow for certification of an “opt in” class imposing procedural hoops for class inclusion. Ackal v. Centennial Beauregard Cellular L.L.C., 700 F.3d 212, 216 (5th Cir. 2012) (quoting Kern v. Siemens Corp, 393 F.3d 120, 124 (2d Cir. 2004)). See also Clark v. Universal Builders, Inc., 501 F.2d 324, 340 (7th Cir. 1974) (“The requirement of an affirmative request for inclusion in the class is contrary to the express language of Rule 23(c)(2)(B).”); Shepardson v. Midway Indust., Inc., No. 3:18-CV-3105, 2019 WL 2743435, at *3 (W.D. Ark. July 1, 2019) (citing Ackal and Clark, and refusing to approve class settlement and notice); Dallas County, Tex. v. MERSCORP, Inc., 2012 WL 6208385, No. 3:11-cv-02733-0 (N.D. Tex. Dec. 13, 2012) (denying certification and citing Ackal as controlling authority); Maciel v. Bar 20 Dairy, LLC, No. 117CV00902DADSKO, 2018 WL 5291969, at *8 (E.D. Cal. Oct. 23, 2018) (applying Ackal, Kern, and Clark, and rejecting the plaintiffs’ argument that class members could be required to opt in to the Rule 23 action). The failure of the Objecting Plaintiffs to comply with the procedural hoops promulgated in this Court’s orders cannot be a basis for dismissal, because this is akin to imposing affirmative procedural actions to “opt in” to a class.

  1. The Appearance of Counsel at the Hearing Should Be Sufficient.

The Objecting Plaintiffs are elderly individuals in ill health, and it would not be easy, if even possible, for them to travel to New Orleans for a hearing. See Exhibit 1, Declaration of Charlotte Long. Even were each Objecting Plaintiffs’ individual case subject to a pretrial conference in his or her individual case, under Federal Rule of Civil Procedure 16, “the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences.” FED. R. CIV. P. 16(a) (emphasis added). “If appropriate, the court may require that a party or its representative be present or reasonably available by other means to consider possible settlement.” Fed. R. Civ. P. 16(c)(1) (emphasis added). The Court’s Show Cause orders do not accept reasonable availability in that they require personal presence. This is not appropriate, particularly considering that the Defendants have not appeared in their individual cases to make an individual settlement offer in the first instance. Moreover, dismissal with prejudice is an unduly draconian penalty for a failure to appear in person. See, e.g., Hurman v. Port of Houston Authority, 990 F.2d 626 (5th Cir. 1993) (district court abused its discretion by involuntarily dismissing suit for failure to prosecute where plaintiff had failed to file a pretrial order and had failed to appear at docket call).

CONCLUSION AND PRAYER FOR RELIEF.

Wherefore, Objecting Plaintiffs on the attached Exhibit 1 respectfully request that this Honorable Court not dismiss their actions with prejudice, and for such other relief to which they may be entitled.

The case law cited in the motion can be accessed at the links below:

Amchem Products, Inc. v. Windsor

521 US 591, 117 S. Ct. 2231, 138 L. Ed. 2d 689 – Supreme Court, 1997 – Google Scholar

The United States District Court for the Eastern District of Pennsylvania certified the class for
settlement only, finding that the proposed settlement was fair and that representation and notice
had been adequate. That court enjoined class members from separately pursuing asbestos-related
personal-injury suits in any court, federal or state, pending the issuance of a final order. The Court
of Appeals for the Third Circuit vacated the District Court’s orders, holding that the class certification
failed to satisfy Rule 23’s requirements in several critical respects. We affirm the Court of …

Cited by 7392 How cited Related articles All 3 versions

 

Ortiz v. Fibreboard Corp.

527 US 815, 119 S. Ct. 2295, 144 L. Ed. 2d 715 – Supreme Court, 1999 – Google Scholar

Like Amchem Products, Inc. v. Windsor, 521 US 591 (1997), this case is a class action prompted
by the elephantine mass of asbestos cases, and our discussion in Amchem will suffice to show
how this litigation defies customary judicial administration and calls for national legislation.
[1] In 1967, one of the first actions for personal asbestos injury was filed in the United States District
Court for the Eastern District 822 of Texas against a group of asbestos manufacturers. App. to
Pet. for Cert. 252a. In the 1970’s and 1980’s, plaintiffs’ lawyers throughout the country, particularly …

Cited by 2364 How cited Related articles All 3 versions

 

Ackal v. Centennial Beauregard Cellular LLC

700 F. 3d 212 – Court of Appeals, 5th Circuit, 2012 – Google Scholar

On September 11, 2001, a group of cellular telephone customers filed suit in Louisiana state
court against its members’ respective service providers, including Defendants-Appellants Centennial
Beauregard Cellular LLC and its related entities (“Centennial“). The suit — which alleges causes …

Cited by 13 How cited Related articles All 2 versions

 

Kern v. Siemens Corp.

393 F. 3d 120 – Court of Appeals, 2nd Circuit, 2004 – Google Scholar

Rudolph KERN, And on behalf of the Estate of Erich Kern, Angela Kern, And on behalf of the
Estate of Erich Kern, John S. Habblett, LTC (Ret.), and on behalf of the Estates of Jennifer Kirkpatrick
Habblett Goodridge, Michael Jonclair Goodridge and Kyle William Goodridge, Suzanne K …

Cited by 91    How cited Related articles

 

 

Clark v. Universal Builders, Inc.

501 F. 2d 324 – Court of Appeals, 7th Circuit, 1974 – Google Scholar

… 1970), cert. denied, Universal BuildersIncvClark, 400 US 821, 91 S.Ct. 40, 27 L.Ed.2d
49 (1970) … Diamond v. Terminal Railway Alabama State Docks, 421 F.2d 228, 235-236 (5th
Cir. 1970) … [1] The builder of the homes was Universal BuildersInc …

Cited by 367 How cited Related articles

 

Clark v. Universal Builders, Inc.

706 F. 2d 204 – Court of Appeals, 7th Circuit, 1983 – Google Scholar

… See Clark, 501 F.2d at 337-39 … V … [1] Because of our acceptance of the district court’s finding as
to lack of comparability, we need not reach defendants’ contention that the Deerfield homes were
sold by a company which was not a predecessor of the defendant Universal …

Cited by 47 How cited Related articles

 

Clark v. Universal Builders, Inc.

409 F. Supp. 1274 – Dist. Court, ND Illinois, 1976 – Google Scholar

… The Court of Appeals, in Clark vUniversal BuildersInc., 501 F.2d 324 (7th Cir. 1974), reversed
Judge Perry and accepted Judge Will’s “exploitation theory” of § 1982 … Clark vUniversal
BuildersInc., 419 US 1070, 95 S.Ct. 657, 42 L.Ed.2d 666 (1974)) …

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Shepardson v. MIDWAY INDUSTRIES, INC.

Dist. Court, WD Arkansas, 2019 – Google Scholar

… the classes’ FLSA and AMWA claims, the Settlement Agreement notes that Midway agrees to …
being allocated to settlement class members, $2,000.00 being allocated to Dale Shepardson
as a … See, eg, Thompson v. Costco Wholesale Corp., 2017 WL 697895, at *8 (SD Cal. Feb …

 

Shepardson v. MIDWAY INDUSTRIES, INC.

Dist. Court, WD Arkansas, 2019 – Google Scholar

DALE SHEPARDSON, Individually and on Behalf of All Others Similarly Situated Plaintiff,
vMIDWAY INDUSTRIESINC.; TOOL STEEL SERVICE, INC; and TOOL STEEL SERVICE
OF CALIFORNIA, INC., Defendants. Case No. 3:18-CV-3105 …

 

Gonzalez v. Firestone Tire & Rubber Co.

610 F. 2d 241 – Court of Appeals, 5th Circuit, 1980 – Google Scholar

610 F.2d 241 (1980). Herman GONZALEZ, etc., Plaintiff-Appellant, vFIRESTONE TIRE &
RUBBER CO. et al., Defendants-Appellees. No. 77-3170. United States Court of Appeals, Fifth
Circuit. January 21, 1980. 242 David T. Lopez, Houston, Tex., for plaintiff-appellant …

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Gonzalez v. Firestone Tire & Rubber Co.

512 F. Supp. 1101 – Dist. Court, ED Texas, 1981 – Google Scholar

… within 90 days of the second right to sue letter, and that it was an abuse of discretion to dismiss
the plaintiff’s Section 1981 claim because his neglect did not amount to a “`clear record of delay
or contumacious conduct.'” Gonzalez vFirestone Tire & Rubber Co., 610 F.2d 241 …

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Griggs v. SGE MANAGEMENT, LLC

905 F. 3d 835 – Court of Appeals, 5th Circuit, 2018 – Google Scholar

… If the district court had not dismissed the case, it is unlikely that the parties would have understood
that Grigg’s response to … district court was well within its discretion to dismiss this case for want
of prosecution in response to Griggs’s disobedience to … [1] See Torres vSGE Mgmt …

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Griggs v. SGE MANAGEMENT, LLC

Court of Appeals, 5th Circuit, 2018 – Google Scholar

… If the district court had not dismissed the case, it is unlikely that the parties would have understood
that Grigg’s response to … district court was well within its discretion to dismiss this case for want
of prosecution in response to Griggs’s disobedience to … [1] See Torres vSGE Mgmt …

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Maciel v. BAR 20 DAIRY, LLC

Dist. Court, ED California, 2018 – Google Scholar

… Bar 20 DairyLLC, a California limited liability company, Defendant, represented by Jared Hague,
Sutton Hague Law Corporation, PC, Joseph Vidal Macias, Sutton Hague Law Corporation, PC,
S. Brett Sutton, Sutton Hague Law Corporation, PC & Wesley Lawrence Carlson …

 

Maciel v. BAR 20 DAIRY, LLC

Dist. Court, ED California, 2019 – Google Scholar

… Bar 20 DairyLLC, a California limited liability company, Defendant, represented by Jared Hague,
Sutton Hague Law Corporation, PC, Joseph Vidal Macias, Maxim Integrated Products, Inc., S.
Brett Sutton, Sutton Hague Law Corporation, PC & Wesley Lawrence Carlson, Sutton …

Coleman v. Sweetin

745 F. 3d 756 – Court of Appeals, 5th Circuit, 2014 – Google Scholar

Freddie R. COLEMAN, Plaintiff-Appellant v. David SWEETIN; Gregory Oliver; Richard
Cowan; Roy Brown, Sued in his official and individual capacity; Shelia Dale, Sued in her official
and individual capacity; Mae Cobbs, Sued in her official and individual capacity; Debbie
Erwin, Sued in her official and individual capacity; Craig Fisher, Sued in his official and individual
capacity; Blake Lamb, Sued in his official and individual capacity; Unknown McManus, Sued
in her official and individual capacity; Brenda Hough, Sued in her official and individual …

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Coleman v. Sweetin

Dist. Court, ED Texas, 2011 – Google Scholar

The lawsuit concerns the Plaintiff falling in the shower and his efforts to obtain medical care for
his injuries. The Plaintiff initially fell in the shower at the Eastham Unit trusty camp on June
14, 2009. He fell again in the same shower on June 20 and June 23, 2009. He testified that the
floor to the shower was slimy and unsafe. Before he ever fell, he submitted letters (“I-60s”) to
Maintenance Specialist Richard Cowan and Maintenance Supervisor Roy Brown about the conditions
in the showers, but they did not take steps to correct the problem. Wardens Sweetin and Oliver …

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Coleman v. Sweetin

Dist. Court, ED Texas, 2011 – Google Scholar

On October 5, 2011, the Plaintiff was ordered to submit the current address for McManus. He
was given twenty days from the receipt of the order to comply with it. He was informed that the
claims against McManus would possibly be dismissed if he failed to comply with the order. The
Court received an acknowledgment from the Plaintiff indicating that he received the order on
October 12, 2011. The Plaintiff was obligated to provide the current address for McManus by
November 1, 2011. He has not, however, provided her current address … On October 24 …

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Port of Houston Auth. v. INTERNATIONAL ORG. OF M., M. & P.

456 F. 2d 50 – Court of Appeals, 5th Circuit, 1972 – Google Scholar

… Bertram Perkel, New York City, Herman Wright, W. Arthur Combs, Houston, Tex., Schulman,
Abarbanel, Perkel … The exception sought by the Port Authority here is not within any existing
exception and is … freely to come with their vessels and cargoes to all places, ports and waters …

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Mosher v. KEANSTER

Dist. Court, SD Texas, 2010 – Google Scholar

Pending before the Court is pro se Plaintiff Gary Mosher’s (“Mosher“) motion for recusal.
(Doc. 36.) Also before the Court is pro se Defendant Douglas Jones’ (“Jones”) motion to dismiss
(Doc. 6), as well as Plaintiff Mosher’s response (Doc. 9) and Jones’ reply (Doc. 10). Although …

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Mosher v. KEANSTER

Dist. Court, SD Texas, 2010 – Google Scholar

Although Mosher’s motion for reconsideration requests relief pursuant to Rule 60 of the Federal
Rules of Civil Procedure, because Mosher filed his motion for reconsideration within twenty-eight
days of the Court’s order dismissing the case, the Court will apply the more liberal standard of …

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Mosher v. KEANSTER

Court of Appeals, 5th Circuit, 2011 – Google Scholar

The timing of Mosher’s notice of appeal raises an issue regarding this court’s jurisdiction, which
we must examine sua sponte. See Bailey v. Cain, 609 F.3d 763, 765 (5th Cir. 2010), cert.
denied, 131 S. Ct. 931 (2011). In a civil case, the filing of a timely notice of appeal is a jurisdictional …

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Mosher v. KEANSTER

Court of Appeals, 5th Circuit, 2009 – Google Scholar

We review a sua sponte dismissal for want of prosecution, which is authorized by Rule 41 of
the Federal Rules of Civil Procedure, for abuse of discretion. See McNeal v. Papasan, 842
F.2d 787, 789-90 (5th Cir. 1988). Because the judgment of dismissal did not specify whether …

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Dallas County, Tex. v. MERSCORP, INC.

2 F. Supp. 3d 938 – Dist. Court, ND Texas, 2014 – Google Scholar

Before the Court are the parties’ cross-motions for summary judgment filed November 12,
2013, on Plaintiffs’ request that this Court issue a declaratory judgment interpreting Section 192.007
of the Texas Local Government Code, the only remaining claim in this lawsuit. See Plaintiffs Harris …

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Coleman v. Sweetin

745 F. 3d 756 – Court of Appeals, 5th Circuit, 2014 – Google Scholar

Freddie R. COLEMAN, Plaintiff-Appellant v. David SWEETIN; Gregory Oliver; Richard
Cowan; Roy Brown, Sued in his official and individual capacity; Shelia Dale, Sued in her official
and individual capacity; Mae Cobbs, Sued in her official and individual capacity; Debbie
Erwin, Sued in her official and individual capacity; Craig Fisher, Sued in his official and individual
capacity; Blake Lamb, Sued in his official and individual capacity; Unknown McManus, Sued
in her official and individual capacity; Brenda Hough, Sued in her official and individual …

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Coleman v. Sweetin

Dist. Court, ED Texas, 2011 – Google Scholar

The lawsuit concerns the Plaintiff falling in the shower and his efforts to obtain medical care for
his injuries. The Plaintiff initially fell in the shower at the Eastham Unit trusty camp on June
14, 2009. He fell again in the same shower on June 20 and June 23, 2009. He testified that the
floor to the shower was slimy and unsafe. Before he ever fell, he submitted letters (“I-60s”) to
Maintenance Specialist Richard Cowan and Maintenance Supervisor Roy Brown about the conditions
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Dist. Court, ED Texas, 2011 – Google Scholar

On October 5, 2011, the Plaintiff was ordered to submit the current address for McManus. He
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claims against McManus would possibly be dismissed if he failed to comply with the order. The
Court received an acknowledgment from the Plaintiff indicating that he received the order on
October 12, 2011. The Plaintiff was obligated to provide the current address for McManus by
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Will $33.7 Million IVC Filter Verdict Expedite Mass Settlement?

On October 28, 2019 a Philadelphia Jury awarded $33.7 Million Dollars to plaintiff Tracy Reed-Brown (In Re: Reed-Brown v. Rex Medical)

The Jury awarded Tracy Reed-Brown $1,045,764 million in future medical expenses, $2,322,650 million in future pain and suffering and $30,315,726 in punitive damages.

The trial, which was overseen by Philadelphia Court of Common Pleas Judge Michael Erdos, presided over the Reed case. This was the first case involving a Rex Medical IVC filter to go before a jury in the Philadelphia Court of Common Pleas.

Earlier this year jury in Indianapolis awarded $3 Million to plaintiff Tonya Brand alleged that she pulled a part of her Cook IVC filter out of her thigh in 2011 after it fractured leaving parts of the device lodged in her body which could not be removed.

On March 30, 2018  a $3.6 million jury verdict was awarded against Bard on to Plaintiff Sherri Booker, who was injured by a fractured Bard IVC filter.

 

Emerging Surgical Staplers and Staples Litigation

Similarities in the IVC Filter litigation and the Emerging Surgical Stapler Litigation are significant. MTN believes that the Surgical Stapler Litigation is still developing and may grow to involve as many or more plaintiffs than the IVC Filter Litigation.

Attendees of the Mass Tort Nexus Four Days to Mass Tort Success Course (Friday, November 8 – Monday, November 11, 2019)  will benefit from a comparison and contrast presentation related to the differences and similarities between the IVC Filter Litigation and the Emerging Surgical Stapler Litigation.  Contact Anne Marie Kopek by email at annemarie@masstortnexus.com, or call her at 954-837-3432 for more information. You may also request course information by filling out the form at https://www.masstortnexus.com/Course/Enroll.

 

Will Defendants Fear of Additional Multi-Million Dollar Awards Lead to Mass Settlement?

The $33.7 Million jury verdict could potentially motivate Bard, Cook and Cordis to bring more to the settlement table when verdicts in the $3 Million range did not seem to provide adequate motivation. The fact that the Philadelphia Jury saw fit to award $33.7 Million should make all IVC Filter defendants realize that the next jury might award hundreds of millions or verdicts in excess of $1 Billion.

The threat of the “Billion Dollar Verdict” is a recent phenomenon in Mass Tort cases however, the fact that multiple juries in different mass litigations have handed down massive verdicts over the past several years, should make any defendant realize that a “Billion Dollar Verdict” is not a realistic possibility in any jury trial they face.

Moving forward, the IVC Filter defendants may prevail at trail in certain cases however, Plaintiffs have already demonstrated that they will prevail in a number of cases as well. The cumulation of multiple verdicts in the $3 Million Dollar Range, the $30 Million range and higher will rapidly add up to an amount that is greater than the amount these defendants could put on the table to settle these cases in mass. In addition to the foregoing, the defendant’s litigation costs for each case tried can easily reach the 7-figure range (Mass Tort Defense Counsel does not come cheap).

 

IVC Filter Litigation Settlement Progress

Rex Medical is a minor player in the IVC Filter market and therefore faces far fewer individual complaints than Cook, Cordis and Bard (now Becker Dickinson) however, there is little doubt that the three major players in the IVC Filter market took note of the verdict against Rex. Given the relatively small number of cases filed against Rex, this defendant may elect to continue allow cases to proceed to jury trials however, Cook, Cordis and Bard are in a very different position.

Settlement talks with Bard/ Becker Dickinson began as early as 10/30/15, however Becker Dickinson has yet to offer settlement terms acceptable to Plaintiffs Leadership and now face remand of Bard IVC Filter Cases. Becker Dickinson is not an “experienced” defendant in mass medical device litigation and this lack of experience may explain why the company may have overplayed their hand at the negotiating table a now face the prospect of remand and trial of potentially hundreds of individual Bard IVC Filter cases. On a side not, Kudos to the Bard IVC Filter MDL Plaintiffs leadership for sticking to their guns in vigorously fighting for all plaintiffs in the litigation.  The attorneys appointed to leadership in Bard MDL 2641 are to be commended.

Cook Medical, (MDL 2570) a privately held company, has settled numerous individual IVC filter cases but like Bard, has yet to offer settlement terms enough to resolve complaints in mass.

The majority of cases on file against Cordis (a Johnson and Johnson Company) are consolidated in in Alameda County California under Rule of the Judicial Council of California Civil Case Cordination Proceedings (JCCP).

Whether or not the $33.7 Million verdict handed down in the Rex case will motivate the major defendants to get serious about mass settlement is yet to be seen however, the verdict definitely gives plaintiffs more clout in the negotiations.

Learn the Business of Mass Torts, How to Avoid Getting Screwed in an MDL, the Behind-the-Curtain Information on Taxotere, Truvada, Hernia Mesh, and Other Emerging and Current Litigations… Register Today for the Only Mass Tort Immersion Course.

The Mass Tort Nexus Four Days to Mass Tort Success Course gives you the knowledge, information and skills that current “mass tort insiders” learned the hard way (trial and error). It is better to learn from the mistakes of others than to make those same mistakes yourself.

If you are interested in working smarter versus harder, and achieving the financial goals you have set for yourself and your firm, the Four Days to Mass Tort Success Course is the place to start. Click on the image below to register for the November course. You may also call or email Barbara Capasso or Anne-Marie Kopek at 954-530-9892, email barbara@masstortnexus.com or annemarie@masstortnexus.com

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Understanding the Expanding Talcum Powder and Asbestos Litigation

The original Asbestos litigation began with a small number of defendants and grew to become the largest product liability litigation in history. MTN believes the Talcum Powder litigation may expand in similar manner. This article will focus on potential retailer liability in the expanding Talcum Powder litigation.

If you did not read our prior article, click here to get up to speed: Will the Recall of J&J Baby Powder Breathe New Life into Asbestos Litigation?

Attendees of the Mass Tort Nexus Four Days to Mass Tort Success Course (Friday, November 8 – Monday, November 11, 2019)  will receive and in depth presentation as well all of the information needed, including Qualifying and Disqualifying criteria, to start accepting Talcum Powder Mesothelioma Cases as well as other types of Talcum Powder clients.  Contact Anne Marie Kopek by email at annemarie@masstortnexus.com, or call her at 954-837-3432 for more information. You may also request course information by filling out the form at https://www.masstortnexus.com/Course/Enroll.

 

RECENT BACKGROUND

On October 18, 2019, the FDA announces that Johnson and Johnson has recalled a single lot of its Talcum powder after https://www.fda.gov/news-events/press-announcements/baby-powder-manufacturer-voluntarily-recalls-products-asbestos

“Since 2018, the FDA has been conducting an ongoing survey of cosmetic products for asbestos and to date has tested approximately 50 cosmetic products. As part of this testing, two samples of Johnson’s Baby Powder were tested: one sample from lot #22318RB was found to be positive for asbestos a second Johnson’s Baby Powder sample, lot #00918RA, tested negative for asbestos.”

 

LIVE TESTING HAND GRENADES

The FDAs method of testing sample from individual lots of Baby Powder is akin to pulling the pin on a sample of hand grenades from a box, and determining that the entire box are all “duds” because no grenade from which the pin was pulled blew up and killed everyone in the room.

The only way to be certain that any given bottle of baby powder sitting on a retail shelf or on the bathroom counter of a Talc user is completely free of asbestos would be to test every single bottle.

 

FEELING LUCKY?

 

RETAILERS PULL SOME TALCUM POWDER FROM SHELVES

After the FDA announced the single lot voluntary recall of one lot of J&J Talcum Powder, major retailers, including Walmart, Target, CVS and Right aide began pulling 22-ounce bottles of J&J Talc from their shelves. The recall involved this size bottle of Talcum Powder.

https://www.cnbc.com/2019/10/24/cvs-pulls-all-jj-22-ounce-baby-powder-from-shelves-after-fda-finds-sub-trace-levels-of-asbestos.html

 

HOW DO THESE RETAILERS KNOW THAT OTHER SIZE BOTTLES DO NOT CONTAIN ASBESTOS?

The short answer to the above question is that retailers have no means by which to know if the Talcum Powder remaining on their shelves, do not also contain asbestos.

Although retailers are already potentially liable under a “Strict Liability”  theory form simply conveying these products into the stream of commerce, one could argue, that with all that is now known, these retailers crossed the line into “negligent liability” when they failed to pull all Talcum Powder products from

Putting Aside the evidence that Talc itself can cause cancer, including but not limited to Ovarian Cancer, this article will focus on why every retailer that offers Talc Products should know that it is more likely than not, that every bottle of Talc they sell, contains asbestos and why retailers should assume the foregoing to be true.

 

Understanding the Link Between Talc and Asbestos

Asbestos is a commercial name assigned by industry to a group of minerals. The most common type of asbestos found in commercial products is Chrysotile Asbestos.

Both Talc and Chrysotile Asbestos are formed from the same four basic elements. Magnesium (8th most common element in the Earths rust) , Silicon (Most Common Element in the Earths crust)  Hydrogen and Oxygen (in the form of water).

The elemental structure of Talc and Chrysotile Asbestos are nearly identical.

Talc Mineral: Mg3Si4O10(OH)2

Chrysotile Asbestos:  Mg3Si2O5(OH)4 (most common type of asbestos in commercial use)

All that is required for given Talc deposit to initiate formation of asbestos as well, is a change in the temperature of the water supply necessary for the formation of both minerals. It may be useful to think of the earth crust as a “mineral factory”. The same individual factories (deposits) that produce Talc can also produce Chrysotile Asbestos, all that is required for the naturally occurring Talc factor to being producing Chrysotile Asbestos is for someone (something) to change the thermostat.

Talc and Chrysotile Asbestos deposits form over thousands and in some cases, over millions of years. Earth is a highly thermodynamic planet, the temperature of any given water supply found in the earths crust if far more increase and decrease over these long periods of time versus remaining stable.

In that it is unlikely that any naturally occurring Talc deposit would not also contain some asbestos. Combine the foregoing with the fact that there is no practicable and economical means by which to separate Asbestos from Talc, it is reasonable to conclude that, it is more likely than not, that all Talc contains Asbestos.

Given that the foregoing is basic science and geology, easily understood by any high school student, it would be difficult for any retailer of Talcum Powder products to claim ignorance of the fact that it is highly probable that any given bottle of Talcum Powder on their shelves, likely contains Asbestos.

Which Grenade is live and which one is a dud?  Nobody knows. Would you want to be the one to pull the pin and find out?

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Will the Recall of J&J Baby Powder Breathe New Life into Asbestos Litigation?

Will the Johnson and Johnson Talcum Powder Asbestos issue breath new life into “Asbestos Mesothelioma Practice Area”? The events of the past few days may lead one to believe that it is very possible that the need for plaintiffs lawyers to represent mesothelioma victims who allege their cancer was caused by Johnson and Johnson Talcum Powder, may breath new life into a practice area that was in decline.

On October 18, 2019 the FDA Announced” Johnson’s Baby Powder voluntarily recalled after testing positive for asbestos: Johnson & Johnson voluntarily recalled one lot of baby powder, after a sample tested positive for asbestos. The recalled product is Johnson’s Baby Powder Lot #22318RB. The lot number can be found on the back of the bottle, directly underneath the cap. https://www.fda.gov/cosmetics/cosmetics-recalls-alerts/fda-advises-consumers-stop-using-certain-cosmetic-products.

The FDA is inspecting other lots of Johnson & Johnson talcum powder and MTN expects further recalls to be forth coming.

Does the Problem End With A Single Lot?

Johnson & Johnsons problems are not likely to end with one or even a few recalled lots of baby powder.

It may (likely will be) possible to prove that Johnson & Johnson products, sold at specific retail locations over the past few decades contained asbestos. So, no, it is not likely that Johnson & Johnsons problems arising from a small number of recalled lots will represent the extent of their potential liability.

Would You Like to Be Ahead of the Curve This Time?

Attendees of the Mass Tort Nexus Four Days to Mass Tort Success Course (Friday, November 8 – Monday, November 11, 2019)  will receive and in depth presentation as well all of the information needed, including Qualifying and Disqualifying criteria, to start accepting Talcum Powder Mesothelioma Cases.  Contact Anne Marie Kopek a by email at annemarie@masstortnexus.com, or call her at 954-837-3432 for more information. You may also request course information by filling out the form at https://www.masstortnexus.com/Course/Enroll.

Qualifying (or disqualifying) Talc Mesothelioma cases will be particularly challenging given that the disqualifying factors are more numerous that the qualifying factors however, considering the likely jury verdicts that may arise from meritorious, Talc Mesothelioma cases are worth the extra effort. The average Mesothelioma verdict comes in at approximately $2.4 million and the largest Mesothelioma Verdict Mass Tort Nexus is aware of to date was $250 million. Given the b

Not all-natural Talc deposits contain asbestos. The geological circumstances under which the talc was formed, determine whether any given Talc deposit also contains asbestos. Mass Tort Nexus will provide November Course attendees with the information they need to determine whether an individual potential client used Talc likely sourced from a mine containing asbestos.  In most cases, it should be possible to determine if an individual was exposed to Talc containing asbestos even if the exposure occurred decades in the past.

Does the Stock Market Think the Problem Ends with a Single Lot?

On October 8, the market got the news that Johnson & Johnsons was hit with an 8-Billion-dollar verdict, the pharma giants stock took a down word turn.

On October 15th Johnson & Johnson announced 3rd quarter results that exceeded market expectations and their stock began to trend upward.

On October 18th, the FDA announces the recall of a single lot of Johnson & Johnson Talcum Powder.  By 3:50 pm the Pharma Giants stock had dropped by 5.89% and by 4:00 (closing bell) the stock had sunk by 6.23% to $127.72 per share as compared to the previous day’s closing price of $136.18.  If we have our math right, Johnson & Johnson took a hit to their market capitalization of around $18 billion, in a single day, after the FDA recall of a single lot of Johnson and Johnson Baby powder due to asbestos found in the individual lot.

So, no, it does not appear that the market believes that Johnson and Johnson’s Talc/ Asbestos problem begins nor ends with a single recalled lot and if you are a plaintiffs lawyer, you may want to get ahead of the curve on the new breath of life that may have been given to the asbestos mesothelioma practice area.

 

 

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