Missouri Appeals Court Throws Out $72 Million Johnson & Johnson Talcum Powder Cancer Verdict

Missouri Appeals Court Throws Out $72 Million Johnson & Johnson Talcum Powder Cancer Verdict

By Mark A. York (October 17, 2017)

Mass Tort Nexus

 

 

 

 

 

 

 

 

Photo of Jacqueline Fox and her son, Marvin Salter.

   Earlier today, the Missouri Eastern District Court of Appeals threw out a $72 million state court jury verdict awarded to a woman who claimed her longtime use of Johnson & Johnson baby powder and other J&J products contributed to ovarian cancer that killed her.

The appeals court unanimously ruled that Jacqueline Fox’s lawsuit lacked jurisdiction in Missouri because of the June 2017 US Supreme Court decision, (see U.S. Supreme Court Strikes Down California Ruling in Bristol-Myers Plavix Case) that clarified where injury lawsuits can be filed based on the state where a plaintiff is a resident. The Bristol-Myers Squibb case said non-California residents could not file claims there against the New York-based maker of the blood thinner Plavix, in a ruling that established a lawsuit’s jurisdiction requiring a much clearer connection between the forum state, a corporation and a plaintiff’s claims.

Appellate Judge Lisa Van Amburg wrote “Specifically, Fox seeks to establish that J&J directed the production, packaging and distribution of its products through a Missouri company, Pharma Tech,”. and “J&J counters that Fox is precluded from supplementing the record at this stage and urges this court to dismiss the case outright with prejudice.”

Ms. Fox, 62, of Birmingham, AL, died in 2015, just four months before her trial was held in St. Louis Circuit Court. She was among 65 plaintiffs, of which only two were from Missouri, who joined in the lawsuit. A jury in February 2016 awarded her $10 million in actual damages and $62 million in punitive damages.

It was the first verdict in the country where a jury awarded damages over claims that talc contributed to cancer. Fox said in her pleadings that she used Johnson & Johnson products containing talcum powder for more than 25 years. The trial lasted more than three weeks and was the first of four multimillion dollar verdicts against Johnson & Johnson, which now total in excess of $300 million. However, the Supreme Court BMSQ Plavix ruling will have an impact on other Talc cases not only in St. Louis but across the country as well.

The plaintiffs who’ve also gone to trial here were from elsewhere — Alabama, California, South Dakota, Tennessee, and Virginia. All but one prevailed; and Johnson & Johnson has appealed all of the verdicts against the company.

Fox’s lead counsel James Onder, who represents plaintiffs in other pending talcum powder cases, said Tuesday he was disappointed by the decision but “optimistic that the Missouri Supreme Court will find otherwise.”

Onder noted that the U.S. Supreme Court sent the BMSQ Plavix case back to California state courts; he said he hopes the Missouri Supreme Court will review Fox’s case and do the same, and also look at rules allowing plaintiffs to join together to file claims in Missouri.

“I suspect this will all be decided by the Missouri Supreme Court,” Onder said.

The Bristol Myers ruling has delayed the sixth talcum powder trial that originally was set for June and was rescheduled for this week but was postponed again. It involves the first in-state plaintiff — Michael Blaes of Webster Groves — whose wife, Shawn M. Blaes, died of ovarian cancer at age 50. She was a competitive figure skater, coach and co-owner of a skate shop in Webster Groves.

Johnson & Johnson, a health care giant based in New Brunswick, N.J., had appealed the Fox verdict and has maintained that its products are safe. And stated that their talcum powder is made from talc, a mineral that has not been linked to causing cancer.

In the appeals court ruling the court vacated Fox’s complete lawsuit instead of sending it back to the circuit court, finding the court has no authority “rewind the case so as to supplement the pre-trial record to establish jurisdiction under the new standard.”

In a separate, concurring opinion, Appellate Judge Kurt Odenwald said that if Fox had anticipated introducing additional evidence establishing jurisdiction, by showing co-defendant Pharma Tech’s Missouri-based distributor of J&J products, were linked, then “she had full and ample opportunity to engage in discovery and present evidence to the trial court. She did not.”

 

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Jury Finds AbbVie Misrepresented Risks of AndroGel and Awards $140 Million in Second Low-T Bellwether Trial

“AbbVie, Inc. Misrepresented Risks of AndroGel and Jury Awards $140 Million in 2nd AndroGel Low-T Trial”

By Mark A. York (October 17, 2017

Mass Tort Nexus

 

 

 

 

 

 

 

 

 

 

 

AbbVie loses again, a jury in Chicago ordered AbbVie, Inc. to pay more than $140 million on October 5, 2017 to a man who claimed the company misrepresented the risks of its testosterone replacement drug AndroGel prescribed for Low-T, causing him to suffer a heart attack. This is the second major loss for AbbVie in the AndroGel related MDL 2545, (Testosterone Replacement Therapy MDL 2545 Briefcase) in front of Judge Matthew Kennelly, US District Court ND Illinois, this verdict follows the July 24, 2017 verdict of $150 million in the first trial.

The verdict, handed down in federal court in Chicago, came in a lawsuit filed by Tennessee resident Jeffrey Konrad and his wife, the suit was filed in 2015. It is the second verdict against AbbVie to come out of more than 6,000 additional lawsuits against AbbVie and other companies consolidated in the Chicago court in front of Judge Kennelly. Kennelly is a long-term judge, who’s not prone to judicial errors or permitting either side in cases to stray outside the fairly conservative courtroom standards Kennelly is known for, which also relates directly to any AbbVie appeals and post-trial maneuvering.

Chicago-based AbbVie said in a statement “We are disappointed with today’s verdict and we intend to appeal,” With thousands more cases pending, AbbVie may need to look at changing legal strategy or to begin thinking settlement. The juries have stated that the company misled consumers via fraudulent misrepresentation in the “off-label” marketing campaign, which included urging men to their testosterone levels checked.

This verdict was comprised of $140 million in punitive damages, intended to deter the defendant and others from engaging in similar behavior, and $140,000 in compensatory damages, sending a message to not only AbbVie, but other Big Pharma drug makers, that consumers are now becoming aware of manipulation of prescription drug use behind the scenes via marketing campaigns including massive television advertisements.

SECOND BELLWETHER LOSS FOR ABBVIE

Konrad’s case is part of a series of bellwether trials aimed at helping plaintiffs and manufacturers of AndroGel gauge the range of damages and define a legal strategy and settlement options., losing both of the initial bellwether trials doesn’t look good for the defense, see “ANDROGEL” JURY RETURNS $150 MILLION VERDICT IN 1st TESTOSTERONE TRIAL.  That jury’s decision to award punitive damages without granting compensatory damages was unusual and both sides continue to fight over the verdict’s validity in court, but shows that the plaintiffs seem to have viable claims at trial.

Plaintiffs across the country allege AndroGel has caused heart attacks, strokes and other injuries, and the company was aware of the increase in adverse events while marketing “off-label” use. AbbVie has defended the drug and responded that its marketing of AndroGel adhered strictly to uses approved by the Food and Drug Administration and they have remained in full compliance with all FDA standards.

Konrad, 56, had been using AndroGel for two months in 2010 when he suffered a heart attack, from which he has since recovered. In court pleadings, the company contended that Konrad’s heart attack was caused by other factors, which are are not related to being prescribed AndroGel, such as obesity and high blood pressure. It also said it made no misrepresentations about AndroGel’s safety, which now two juries have disagreed with to the tune of $290 million.

ANDROGEL WAS A BLOCKBUSTER FROM FIRST RELEASE

AbbVie’s AndroGel is one of the more dominant testosterone treatments In the ever growing Low-T market, with sales of $675 million in 2016, and was declared a blockbuster drug and moved earnings and shares higher as soon as AndroGel hit the market. However, there were concerns about the drug safety as far back as 2012 and the FDA took notice not long thereafter. In 2014, the FDA convened an advisory committee to consider the adverse cardiovascular outcomes associated with testosterone replacement therapy, and the committee recommended changing the product warning labels, the FDA then required AbbVie to add a warning about cardiovascular risk to AndroGel’s label in May 2015.

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The Definitive Guide to Opioid Litigation

The Definitive Guide to the “Opioid Litigation”

If you believe your firm is not big enough to be involved in the “Opioid Litigation”, you are wrong. If you believe it is too late to get involved in the “Opioid Litigation”, you are so very wrong. The opioid lawsuits, filed mostly by government entities thus far, represent the tip of an extremely large iceberg. A vast number of entities both public and private, with potentially viable claims against opioid defendants, remain unrepresented. Recent actions by the FDA, the Surgeon General, and the DEA support potential product liability claims on behalf of individuals harmed by opioids. These mass litigations on behalf of individuals are in the inception phase. The total number of clients with claims in the “Opioid Litigation” could rival the Tobacco Litigation.

Mass Tort Nexus announces the upcoming release of “Volume 1 of the Definitive Guide to Opioid Litigation.”  A very limited number of  “pre-release”  copies will be provided to attendees of the October 18-20, Mass Torts Made Perfect Conference in Las Vegas.

To receive one of the limited “pre-release” copies at MTMP, contact Jenny Levine jenny@masstortnexus.com or (954) 520-4494.

Over the past two years, the research and technical divisions of Mass Tort Nexus have worked in conjunction with educational institutions, government entities and private organizations, to establish a comprehensive archive of documents, data and knowledge relevant to “The Opioid Litigation”.  Thus far, we have used our archive of documents as well as our databases to educate government entities, as well as private organizations that may have claims against the manufacturers, distributors and other co-conspirators that took part in causing the “Opioid Epidemic.”

Mass Tort Nexus also uses our document archive, data and our knowledge base to assist select law firms in identifying entities, both public and private, that have incurred the most significant financial damages related to opioids. After an entity client has been retained, Mass Tort Nexus then assists with establishing the direct connection between the actions of specific opioid defendants and the damages caused by those actions specific to given state, city, county or other entity.

Using “Big Data”  in the Opioid Litigation

Between 2013 and 2015,  68,177 doctors accepted a total of $46 million dollars in payments from opioid manufacturers. Using our collection of databases, Mass Tort Nexus can identify doctors in specific cities, counties and states that accepted payments from opioid Manufacturers. Mass Tort Nexus can then cross reference that data with the specific doctor’s opioid prescribing habits, as compared to the benchmark for their specialty.

Opioids “The Trillion Dollar Epidemic”

The damages caused by the Opioid defendants to government entities, as well as private business and individuals is in excess of 1 trillion dollars by our estimates. Although we have no expectation that the defendants will pay for all of the damage they have caused, Mass Tort Nexus intends to do its part to make sure the opioid defendants do not get off easy.

Only a Fraction of Government Entities Have Filed Claims

Of the 45,789 State, City, County, Territory and reservation governments that potentially have claims against opioid manufacturers, less than one percent have filed claims to date. Of course, not all government entities were damaged equally, some cities or counties may have suffered very little financial damage. Understanding how to identify and account for damages caused by opioids to a given city or other government entity is vital for the potential entity client, as well as the lawyers that represent them.

Mass Tort Nexus Definitive Guide to the Opioid Litigation First 6 Volumes

 

Volume 1

Volume 1:  The Definitive Guide to Opioid Litigation provides the history of the defendants bad acts, statistics related to which government entities (Cities, States and Counties) suffered the most significant financial damage directly related to the opioid defendants actions. Volume 1 also critiques entity complaints to date, as well as defense strategies employed related to those complaints. (Limited Pre-Release at October MTMP)

 

Volume 2

Volume 2: The Definitive Guide to Opioid Litigation provides guidance for identifying entity clients, both government and provide sector, with significant damages  related to the actions of the opioid clients. This volume also delves into how law firms undertake retaining these entity clients.

 

Volume 3

Volume 3: The Definitive Guide to Opioid Litigation takes the massive amount of statistical data, documents and other information most important to clients and their attorneys and summarizes the information for ease of use. Mass Tort Nexus has collected well over one million pages of documents and billions of data points related to the opioid litigation for our internal use, in our efforts to assist entity clients and law firms we work with directly. Although it would be impossible to provide all of these documents and data in a single resource, we hope that volume three of the guide provides a road map for those who wish to undertake the monumental task of collecting the data and documents needed to be in the best position possible, to represent any client they retain.

Volume 4

Volume 4: The Definitive Guide to the Opioid Litigation records the criminal convictions of opioid manufacturers, employees and executives that have occurred to date and makes some predictions of what may occur in the near future. Hint, unlike the three Purdue Pharma Executives that paid a $65 million dollar fine and agreed to probation to resolve criminal charges, future charges against opioid executives are likely to result in their receiving an all orange wardrobe.

On the record, admissions stemming from the criminal cases already prosecuted in addition to those to come will be very useful in the ongoing opioid civil litigations.

Volume 5

Volume 5: The Definitive Guide to the Opioid Litigation is intended to tie all of the pieces and players together referenced in Volumes 1-4.  The Mass Tort Nexus research staff has been amazed by the connections that they have uncovered between supposedly independent organization that contributed to the development of the “echo chamber” that was used to convince doctors that opioids were safe, despite the fact that over a thousand years of history indicated otherwise.

 

Volume 6

Volume 6: The Definitive Guide to the Opioid Litigation  provides a comparison and contrast between three mass litigation’s with many similarities:

  1. The Tobacco Litigation
  2.  The BP Oil Spill Litigation
  3. The Opioid Litigation

 

 

 

 

 

 

 

 

 

 

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$89 MILLION SETTLEMENT ENDS MDL 2329 WRIGHT CONSERVE HIP IMPLANT LITIGATION

Wright Medical Takes Another Step Toward Their Complete Exit From Hip Implants

Mark A. York (October 9, 2017)

Mass Mass Tort Nexus

  

 

 

 

 

 

 

Wright Medical Technology, Inc. and plaintiffs in the Conserve metal-on-metal hip implant multidistrict litigation MDL 2329, (see Wright Medical, Inc. MDL 2329 Conserve Hip Implant Litigation briefcase) have agreed on a “comprehensive” settlement to resolve the remaining claims against the company. MDL 2329 has been ongoing in the US District Court of Georgia since 2012, and soon after the hip cases were consolidated, Wright sold it’s hip and knee implant operation to Chinese medical entity MicroPort Medical for just under $300 million.

The settlement comes may have been impacted with one plaintiff winning $11 million in the first bellwether trial in Atlanta in November 2015, and after the other cases were not dismissed, and with additional bellwether trials coming, the company chose to settle versus risking additional high dollar verdicts, and further issues with insurance carriers as to who would be liable.

 $89 Million SEC Disclosure

On October 3, 2017 Wright disclosed the settlement in 3rd quarter SEC filings, where the company said its maximum liability will not exceed $89.75 million. The settlement is contingent on availability of new insurance proceeds from the company’s insurance carriers, expected to be $35 million.

The payouts will come in three agreed upon cash outlays, with the first for $7.9 million for certain claimants, the second for $5.1 for the oldest claims, and $76.75 million for the rest. The final payment is scheduled for September 2019.

 Plaintiff Eligibility

For patients to be eligible for settlement they must have a claim filed and pending and received and undergone the revision of the cup, the head, the liner, or some combination thereof, of one of the following metal-on-metal articulating bearing surface product configurations:

(a) A CONSERVE® acetabular cup paired with a CONSERVE® cobalt chromium femoral head;
(b) A DYNASTY® acetabular cup and metal liner paired with a CONSERVE® cobalt chromium femoral head; or
(c) A LINEAGE® acetabular cup and metal liner paired with a LINEAGE® or CONSERVE® cobalt chromium femoral head.

In the two-week bellwether trial, the jury awarded $11 million to Robyn Christiansen, a retired ski instructor implanted with the Conserve metal-on-metal hip implant made by the company. Christiansen received $1 million in compensatory damages and a whopping $10 million in punitive damages.

Prior to the settlement, there were approximately 629 claims that were eligible, and approximately 710 claims (of which 630 are non-revisions) that were ineligible, to participate in the comprehensive settlement. There were also approximately 47 claims pending in U.S. courts and approximately 65 claims pending in non-U.S. courts that will not be included under the agreement.

 Metal-on-Metal Controversy Remains

Metal-on-metal hips became controversial after foreign registries showed higher than normal failure rates, often resulting in Metallosis, a condition where metal particles are absorbed in to the body due to the interaction of the various metals and at times, body fluids. This results in a chronic inflammation and onset of a myriad of severe medical conditions, that prior to metal on metal implants, was relatively unknown outside the metal working industry. In May 2011, the FDA ordered manufacturers of the devices to conduct postmarket surveillance, to determine the true dangers of metallosis and how the condition will impact the thousands of patients who’ve received metal on metal implants, not only in the USA, but around the world.

Thousands of lawsuits were filed against the largest manufacturers by patients who alleged they were injury from the implants. The multi-district cases, in addition to Wright Medical’s, include:

  • Zimmer Holding’s Durom Hip Cup (290 filed cases)
  • DePuy Orthopaedics, Inc.’s ASR Hip Implant (8, 858 filed cases)
  • DePuy Orthopaedics, Inc.’s Pinnacle Hip Implant (5, 153 filed cases)
  • Biomet, Inc.’s M2a Magnum Hip Implant (978 filed cases)

DePuy Pinnacle MDL Trial

DePuy reached a multi-billion-dollar settlement with patients implanted with the ASR system last year in MDL 2197, see DEPUY MDL 2197 ASR HIP IMPLANT Litigation Briefcase.  DePuy Orthopaedics remains deeply involved in MDL 2244, see DePuy Orthopaedics MDL 2244 Pinnacle Hip Implant Litigation Briefcase, where there’s a current federal bellwether trial underway in Houston, TX that started September 22, 2017. The last DePuy Pinnacle trial ended in a jury verdict awarding over $1 billion to a group of five plaintiffs from California, which the judge subsequently reduced to just over $500 million.

MoM Controversy Remains

The issues related to metal-on-metal hip implants,the affiliated onset of metallosis and the numerous other adverse health conditions brought on by the use of MoM devices, does not appear to be going away anytime soon, as there are new hip implant multidistrict litigation consolidations arising every year including. Within the last few months the Stryker LFIT V40 MDL 2768 (see MDL 2768 Created in Stryker LFIT Anatomic CoCR V40 Prosthetic Hip Litigation) and the Smith & Nephew BHR & R3 MDL 2775 (see Smith & Nephew MDL 2775 “BHR & R3 HIP SYSTEM” in USDC Maryland Briefcase), mass torts have started, and re just 2 of the many ongoing hip implant legal disputes where metal-on-metal health related issues will be determined.

 

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States Across The Country Are Targeting Big Pharma and Their Opiate Marketing Campaigns

Is Big Pharma The Target of Litigation Modeled After Tobacco Litigation?  

Mark A. York,  October 6, 2017

 

 

 

 

 

 

 

(Mass Tort Nexus) A bipartisan group of states and their attorneys general have started massive joint investigations into the marketing and sales practices of drug companies that manufacture opioid painkillers. These drug makers are the largest in the country and are considered at the center of the current national addiction epidemic. This includes the executive suite and boardrooms of all opiate manufacturers, as the policy and direction for the massive growth in opiate prescriptions could not have gone unnoticed by executives at the opiate drug makers, for close to 15 years. Record earnings, bonuses and SEC filings all point to “boardroom knowledge” of ever increasing opiate focused sales efforts.

Opiate Rx MDL 2804 Parallels State Claims

The state actions are now parallel to the September 25, 2017 filing of a “Motion for Consolidation in “The Opiate Prescription Litigation MDL 2804”, with the Joint Panel for Multidistrict Litigation. MDL 2804, where numerous Midwest counties in Ohio, Kentucky and West Virginia as well as the city of Birmingham, Alabama joined together to file suit against the 3 largest distributors of opiates in the country, McKesson Corp., Cardinal Health and AmerisourceBergen Corporation. Also named in the suit are the primary Big Pharma opiate manufacturers including Purdue Pharma, J&J’s Janssen Pharmaceuticals, Endo, Teva and others as additional defendants.

Attorney Generals from Massachusetts, Tennessee, Texas, Illinois, New Jersey, Missouri and Pennsylvania have launched full investigations, following the lead of Ohio Attorney General Mike DeWine, who sued five drug manufacturers for misrepresenting the risks of opioids. Other states are also beginning the review of opioid manufacturers and will decide if they are joining the others in filing legal claims.

“We are looking into the role of marketing and how related corporate business practices might have played into increasing prescriptions and use of these powerful and addictive drugs,” District of Columbia Attorney General Karl Racine, a Democrat, said in a statement.

Its currently unclear exactly how many states are involved in the probe, though officials said a majority of attorneys general are part of the coalition. Among those leading the probe is Tennessee Attorney General Herbert Slatery, a Republican.

Officials did not specify which companies were under investigation, but suffice it to say, any company that made and marketed opioids products over the last 10 years will be scrutinized.

Opioid drugs, including prescription painkillers and heroin, killed more than 33,000 people in the United States in 2015, more than any year on record, according to the U.S. Centers for Disease Control and Prevention.

Separate lawsuits by attorneys general in Ohio, Tennessee, New Jersey and Mississippi, are pursuing opioid-related cases as of September 2017, with many more following suit very soon. They are have targeting Purdue Pharma LP, Johnson & Johnson(JNJ.N), Endo International Plc(ENDP.O), Teva Pharmaceutical Industries Ltd (TEVA.TA) and Allergan Plc(AGN.N) as well as leaving the door open to add additional defendants, based on the information revealed in the ongoing multi-state investigations.

New Jersey Files Against Insys Therapeutics

New Jersey recently filed suit against Insys Therapeutics, Inc over marketing scheme for its Fentanyl product known as “Subsys”, and the massive off-label marketing campaign for uses other than FDA approved “cancer pain” treatments. The entire executive board of Insys was indicted in December 2016, along with many of its sales staff and numerous doctors across the country, with at least to physicians being sentenced to 20 years in prison by the US District Court in Alabama. See Insys Therapeutics, Inc Executives Indicted Over Fentanyl Sales Campaign.

Teva in a statement said on Thursday it is “committed to the appropriate promotion and use of opioids.” Representatives for the other companies did not immediately respond to requests for comment.

The companies have denied wrongdoing, saying the U.S. Food and Drug Administration approved their products as safe and effective and saying that they carried warning labels that disclosed their risks. The specific allegation focus more on “off label” and doctor targeting and marketing practices that repeatedly encouraged over-writing of opiate prescriptions for patients with minimal pain issues.

Ohio Filed First

In announcing his office’s lawsuit in May 2017, Ohio Attorney General DeWine said the drug companies helped unleash the crisis by spending millions of dollars marketing and promoting such drugs as Purdue’s OxyContin, without consideration of the long term effects of the related addiction, which Purdue was absolutely aware of throughout the years of profits that now total billions of dollars.

The lawsuit said the drug companies disseminated misleading statements about the risks and benefits of opioids as part of a marketing scheme aimed at persuading doctors and patients that drugs should be used for chronic rather than short-term pain.  Pain centers and medical practices across the country started writing an ever increasing number of high dose opioid prescriptions for what would be considered low to mid-level pain treatment.

Similar lawsuits have been filed by local governments, including those in several California counties, as well as the cities of Chicago, Illinois and Dayton, Ohio, three Tennessee district attorneys, and nine New York counties have also filed individual suits.

It is unknown at this time, if all of the legal actions filed by governmental entities across the country will be consolidated into MDL 2804, which may be the most effective way to manage the soon to be massive number of legal claims against Big Pharma and their long term opiate profit centers. Municipalities across the country seeking to recoup the enormous financial losses brought on by the opioid crisis.

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