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 …

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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 …

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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 …

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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 …

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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 …

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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 …

Cited by 147 How cited Related articles All 2 versions

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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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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Should Taxotere Plaintiffs be Concerned After First Bellwether Trial? Absolutely Not.

Taxotere Trial Defense Strategy

“The Devil Did It”

A jury in Louisiana federal court handed the defendant a victory in the first Taxotere Bellwether presided over by U.S. District Judge Jane Triche Milazzo in New Orleans. The case, filed in December 2016 by Louisiana resident Barbara Earnest, had been designated as a Bellwether in a multidistrict litigation consolidated before Judge Milazzo.

http://www.laed.uscourts.gov/case-information/mdl-mass-class-action/taxotere

https://www.reuters.com/article/products-liability-taxotere/sanofi-wins-first-bellwether-trial-in-taxotere-litigation-idUSL2N26I1P6

Should other Taxotere Plaintiffs be concerned about this initial trial loss? Not really, and we will explain why.
Barbara Earnest’s case was unusual in that she required more than one round of chemotherapy to treat her cancer. She received a round of Taxotere and round of Doxorubicin.

Doxorubicin is a cytotoxic chemotherapy drug and an antitumor antibiotic; it deservedly has been nicknamed the Red Devil. Doxorubicin is a bright, almost florescent, red color.

Despite Doxorubicin not being associated with significant incidents of permanent hair loss, unlike Taxotere, defense counsel took full advantage of the Doxorubicin nick name “Red Devil” and was able to persuade the jury that it was not Taxotere that caused Barbara Earnest permanent hair loss, it was the Devil that did it.

The next Taxotere case up for trial does not involve a dual Taxotere followed by Doxorubicin or vice versa, circumstance. Defense counsel will not be able to claim the devil did it, in the next case.

So, in answer to the question, “Should other Taxotere Plaintiffs be concerned about this initial trial loss?” the answer is no. There are more trials to come and the “facts” of the first case tried are, by no means, the same as those in the majority of other Taxotere plaintiffs’ cases.

If making reference to Bayer’s past connection to Nazis is so inflammatory and prejudicial to be uttered before a jury, where Bayer is a defendant, one would think that using the term “Red Devil” to describe Doxorubicin, the drug’s actual name, in the Barbara Earnest case should equally qualify as too inflammatory and prejudicial for the jury to hear. Plaintiffs counsel objected to the use of “Red Devil”; however, Judge Milazzo nonetheless allowed the Louisiana jury to be led to believe that the Devil had worked some Voodoo, and that was the actual cause of Barbara Earnest’s permanent disfigurement, vs the drug Taxotere, that has actually been shown to cause the type of injuries suffered by Barbara Earnest.

If Judge Milazzo presides over another Taxotere trial in which Doxorubicin was also administered, the Honorable Judge may consider making the defendant refer to the drug by its proper name rather than leading a jury to believe the devil did the deed.

In light of the recent $8 Billion dollar verdict in a Risperdal trial, and multiple other recent Billion Dollar verdicts in mass litigation cases, Sanofi, the maker of Taxotere, may want to think twice about how many times it rolls the dice with a jury trial. If they can’t blame the devil in other cases, they may find that one or more juries find them liable and award more to a single plaintiff that it would take to settle the entire litigation, disposing of all plaintiffs’ cases.

Read the ALM Taxotere Defense Verdict

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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The 3 Keys to Success in Mass Torts

Multi-billion dollar jury verdicts are becoming common in Mass Tort litigations, and these verdicts make headlines and create “hype”; however, the majority of “Mass Tort Billionaires” did not achieve their success from individual jury verdicts, these firms “made it big” through involvement in numerous mass tort cases over many years.

Over 50% of the entire Federal Judiciary Docket is within Multidistrict Litigation cases. Most of these individual client cases are essentially plucked from the “State Court Litigation Market Place”. This fact alone has generated an ever-increasing interest in Mass Torts, from personal injury firms, at least in part wanting to “reclaim” a portion of the client cases being “plucked” from their “State Court”, market.

More simply stated, PI firms are increasingly interested in Mass Torts because that is where the clients are.

Mass Torts, however, is not a get rich quick scheme. As with any other “business”, understanding the keys to success as well as the keys to avoiding failure is of paramount importance when considering expanding your personal injury practice to include mass torts. You do not want to be the firm that jumps into the mass tort practice area blind and ends up disappointed.

 

Mass Tort Success Key #1

Ignore the Cheerleaders or At Least Take the Cheers with A Grain of Salt

It is common for leadership firms, the firms that generally file the first claims and assume leadership positions in Multidistrict Litigations to hold conferences in which they encourage other law firms to get involved in the “their” litigations. Generally, firms conducing these “Mass Tort” conferences hope to receive referrals from other firms they convince to follow them into a litigation. This comment is no way meant to be disparaging, simply factual.

The inherent problem with deciding to become involved in a mass tort based on information provided by firms already involved in a litigation is not difficult to understand. Once a law firm is involved in a litigation, they are advocates for the cause (cause of action). It would be unreasonable to expect any law firm involved in a mass litigation to be anything less than a “cheer leader”. Again, this comment is no way meant to be disparaging, simply factual.

To be clear, there is value in hearing what the cheerleaders for a litigation have to say however, deciding to take a financial risk on a given litigation based solely on the “cheers” voiced by those already advocating for the litigation, is unwise.

 

Mass Tort Success Key #2

Conduct Independent Reasoned Analysis

Undertaking an, independent, systematic, reasoned analysis of the legal and business metrics relevant to a given mass litigation, is the key to success in mass torts. This process does not differ, in principle from the “due diligence” that should be employed prior to making any type of business investment.

Applying basic business principles to Mass Torts by identifying metrics and factors specific to the business and financial aspects of Mass Torts.

There are certain immutable laws of business, if you think they do not apply to your specific business, you are wrong, you simply have yet to realize how these immutable laws of business apply to your specific business.

Recognizing how the immutable laws of business apply to a specific type of business, and then applying those laws to their fullest advantage is how billionaires are made. The “Mass Tort Practice Area” has produced more billionaire attorneys than any other. The primary difference in these “Mass Tort” billionaires and other attorneys has little to do with their skills as an attorney and far more to do with their understanding of how to apply the business metrics relevant to mass torts.

 

Mass Tort Success #3

Take The Course

The Mass Tort Nexus Four Days to Mass Tort Success Course is designed to provide Personal Injury attorneys with the knowledge and tools used by “Mass Tort Billionaires” as well as a road map for applying the knowledge and using these tools.

The Course begins at the most rudimentary level, beginning with explaining the difference in a Class Action and MDL. Once the basics are covered, we quickly move to defining and providing an understanding of the basic metrics which must be considered prior to making an investment in each mass tort case.

The goal of the Mass Tort Nexus Four Days to Mass Tort Success Course is to demystify the practice area and provide not only the tools and knowledge needed to be successful in Mass Torts but also the confidence that comes from having a base of knowledge that “levels” the playing field.

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JUUL MDL 2913 DESIGNATED BY JPML

“E-cigarette docket transferred to USDC ND California”

Mark A. York (October 3, 2019)

See Mass Tort Nexus Briefcase MDL 2913 for the full docket:

https://www.masstortnexus.com/Briefcases/JUUL-MDL-2913-(E-Cigarettes)-USDC-ND-California-(Judge-William-Orrick)/5160/Court-Orders/Documents

 

 

 

 

 

 

(MASS TORT NEXUS MEDIA) The JPML heard Juul arguments on Sept. 26 in Los Angeles, and on October 2, 2019 they issued the MDL 2913 transfer order, consolidating the Juul e-cigarette docket in the U.S. District Court, Northern District of California in front of Judge William Orrick.

In a move to get out in front of plaintiffs, JUUL Labs Inc. filed a motion on Aug. 29 to stay all cases in the litigation and requested the JPML assign the docket to the court in California

JUUL is accused of deceptive marketing practices and failing to warn consumers about the risks of its e-cigarette products. Lawsuits allege JUUL unlawfully marketed its products to teens, and failed to disclose the true amount of nicotine contained in its products.

See Mass Tort Nexus Briefcase MDL 2913 for the full docket

https://www.masstortnexus.com/Briefcases/JUUL-MDL-2913-(E-Cigarettes)-USDC-ND-California-(Judge-William-Orrick)/5160/Court-Orders/Documents

FDA WARNING ISSUED

FDA Warning Letter to JUUL Labs, Inc. (September 9, 2019)  https://www.fda.gov/news-events/press-announcements/fda-warns-juul-labs-marketing-unauthorized-modified-risk-tobacco-products-including-outreach-youth

In November 2018, the FDA revealed that vaping had increased nearly 80% among high schoolers and 50% among middle schoolers since a year earlier. Public health experts have said that Juul has largely propelled the rise, commanding about 75% of the e-cigarette market in the United States.

There were communications between FDA officials in mid-October 2018, which detailed allegations of seizures related to Juul use The FDA found “no proof of causality, but at a minimum, an association with Juul,” Mitch Zeller, the director of the FDA’s Center for Tobacco Products, wrote to Scott Gottlieb, the FDA commissioner at the time. In an interview, Zeller said that the FDA had not been able to confirm that Juul use was associated with the seizures in two of the three initially reported cases

Although Juul demands age verification upon navigating to its website and holds a firm stance against minors’ use of Juuls, these vapes are still wildly popular with teens.

Depending on the state, no one under 18 or 21 is supposed to be able to purchase e-cigarettes or any tobacco products. But according to a report from the CDC, e-cigarette use is rising among middle school and high school students, and more than 3.5 million of them used e-cigarettes in 2018.

  1. Juul delivers massive doses of nicotine, putting youth users at greater risk of addiction
    The manufacturer has stated that each Juul “pod” (cartridge of nicotine) delivers as much nicotine as a pack of 20 cigarettes. However, research by Truth Initiativehas found that many young Juul users don’t know the product always contains nicotine.
  2. Nobody ever disclosed this comparative and now there are thousands of addicted young people who had no clue.
  3. In addition to the patented formula, juul pods contain a greater amount of benzoic acid, 44.8 mg/mL, compared to other e-cigarette brands, which are in the range of 0.2 to 2 mg/mL.

Advertising is part of the problem. According to the CDC, more than 18 million high school and middle school students combined were exposed to e-cigarette ads in 2014. And Stanford researchers point out that Juul’s marketing hasn’t been congruent with its adults-only stance.

PHILLIP MORRIS SHUTS DOWN JUUL MERGER

What had once looked like a smart pair-up to rejoin the international cigarette giant with its former domestic parent has now crumbled under the weight of doubts about where the regulatory fist would fall. Altria owns a 35% stake in Juul Labs, the leading e-cig maker by far and the primary scapegoat for industry criticism because it is the face of the vaping market.

After careful consideration, Philip Morris CEO Andre Calantzopoulos said in a statement that it and Altria “have agreed to focus on launching IQOS in the U.S. as part of their mutual interest to achieve a smoke-free future.” All that other stuff they were discussing could be forgotten.

Juul said it’s suspending all broadcast, print and digital product advertising in the U.S., and will refrain from lobbying the Trump administration on its draft guidance. The announcement comes after a crackdown on e-cigarettes by the U.S. Food and Drug Administration, that has accelerated following a recent outbreak of severe lung disease that appears to be related to vaping. More than 530 Americans have been diagnosed with the illness and at least eight people have died. Juul is now the subject of a criminal probe in California.

FDA investigators are looking at the use of vitamin E acetate, a compound often used as a cutting agent to allow black market operators to use less pure cannabis oil when filling cartridges. While vitamin E is considered to be safe as a dietary or health supplement ingested in capsule or pill form, it can cause respiratory illness including pneumonia when inhaled.

About 55 lawsuits brought against Juul across the country were among the matters before the JPML panel at the hearing.

Recently,  Juul announced that CEO Kevin Burns would step down immediately and the company would suspend all advertisements of its products. The new CEO, K.C. Crosthwaite, comes from Philip Morris USA parent corporation Altria Group Inc., which has a 35% stake in Juul.

Recent developments include stores like Walmart have stopped selling e-cigarettes and vaping products and cities and states have banned the products. Juul also faces mounting regulatory pressure from the U.S. Food and Drug Administration, which is investigating Juul’s marketing claims to children, as have many state attorneys general.

JPML panel chairwoman Sarah Vance, who sits on the Eastern District of Louisiana, started by announcing this would be her last hearing as head of the MDL panel. U.S. District Judge Karen Caldwell of the Eastern District of Kentucky a current panelist, will be the new chairwoman.

Juul counsel, Austin Schwing, a partner at Gibson, Dunn & Crutcher in San Francisco, argued for the cases go to a court near his client’s headquarters in San Francisco before U.S. District Judge William Orrick of the Northern District of California, but was also open to U.S. District Judge Brian Martinotti of the District of New Jersey, while some plaintiffs counsel also supported Orrick.

In briefs before the panel, there was an initial request for two MDL’s to be created, with plaintiff’s counsel initially advocating for Orrick to oversee the Juul litigation related to misleading marketing that failed to disclose the nicotine in its products. While also requesting that Judge  Martinotti  hear the personal injury cases whose claims focused on pulmonary disease, seizures and other serious health problems.

Judge Vance clarified the denial quickly in the hearing, stating the cases were too massive and complex to be divided. “Events in the past few minutes have overtaken me,” she said.

Andy Birchfield, of Beasley Allen, also changed his mind about dividing the cases, said “we need an experienced hand” as a judge. He initially supported Martinotti, a judges who had overseen dockets New Jersey state court’s Multicounty Litigation Center before his appointment to the federal bench.

MDL No. 2913 – IN RE: Juul Labs, Inc., Marketing, Sales Practices, and Products Liability Litigation JPML Initial Transfer Order

Judge Orrick entered Pretrial Order No. 1 on the same day the JPML designated his court as the home of MDL 2913.

See Mass Tort Nexus Briefcase MDL 2913 for the full docket

https://www.masstortnexus.com/Briefcases/JUUL-MDL-2913-(E-Cigarettes)-USDC-ND-California-(Judge-William-Orrick)/5160/Court-Orders/Documents

JUUL Changed Nicotine Disclosures

Juul measures nicotine content by weight, which is different from most brands, which usually measure by volume. Juul originally only sold pods with 5% nicotine by weight, but started offering 3% pods in August 2018.

According to an older version of Juul’s FAQ page, one 5% pod contains roughly the same amount of nicotine as one pack of cigarettes, or about 200 puffs. However, this information is no longer available on Juul’s website, and there’s no precise information about 3% pods, either. However, an article in the New England Journal of Medicine says that the 5% pods contain a concentration of 59 milligrams of nicotine per milliliter of liquid.

In contrast, prior to the Juul frenzy most vapes contained roughly 1 to 3% nicotine by volume. A study in the journal Tobacco Control notes that the new average seems to be rising to that 5% mark. Juul’s creators increased the nicotine because they felt other vapes on the market couldn’t compare to the sensations delivered by regular cigarettes.

In the FDA warning letter to JUUL Labs, Inc. of September 9, 2019 the following “unauthorized marketing claims” were cited:
The warning letter identifies several statements, including statements discussed in testimony from a July 2019 Congressional hearing on JUUL. According to that testimony, a JUUL representative speaking with students at his presentation in a school stated 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….”

Additionally, a “Letter from the CEO” that appeared on JUUL’s website, and also in an email that JUUL sent to a parent in response to her complaint that the company sold JUUL products to her child, states: “[JUUL’s] simple and convenient system incorporates temperature regulation to heat nicotine liquid and deliver smokers the satisfaction that they want without the combustion and the harm associated with it.”

 

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