TAXOTERE MDL TIPPING THE SCALES OF JUSTICE

The Taxotere MDL Court continues to grant Defense motions to dismiss (on a case-by-case basis), allowing Defendants to raise matters outside of the pleadings (not previously pled in the Master Answer), without seeking leave to amend prior to filing the motions, to address the matters not previously pled, while generally limiting Plaintiffs leave to amend in anticipation of such motions (which is not required in the first instance), or to counter such motions once filed.

THE NEXUS OF THE ISSUE

The Master Complaint refers to permanent chemotherapy-induced alopecia, as an absence of incomplete hair regrowth six months after completion of chemotherapy.

The Taxotere MDL Court has construed the above as admission of fact by individual Plaintiffs adopting the Master Complaint, as an admittance on the record that that specific Plaintiff possessed this knowledge six months after completion of chemotherapy.

One might pose the question to Her Honor, prior to appointment to the Taxotere MDL, “Did you know that the failure of hair to regrow within six months after completion of chemotherapy was conclusive of the condition being permanent?”

How can it be said that the aforementioned “admission of fact” by any given Plaintiff is any more than admission that the Plaintiff was aware (knew/discovered) of this fact at any time prior to the filing of the complaint, specific to that Plaintiff. The Taxotere MDL Court has somehow reached such a conclusion.

More simply stated, admitting that a Plaintiff knew a fact on the day she filed her complaint, is not an admittance that she possessed, discovered nor reasonable would have been expected to discover, that same fact, at an earlier point in time, and thus should have filed her complaint at some earlier point in time, based on the knowledge (discovery) to avoid the complaint being SOL barred.

It is also important to note that Plaintiffs are not required to plead matters in their complaint in anticipation of any affirmative defense.
Additionally, it is important to note that Fed. R. Civ. Pro. 12 applies not only to Plaintiff pleadings, Rule 12 also applies to affirmative defenses raised by Defendants.

DEFENDANTS’ MOTIONS TO DISMISS BASED ON SOL

Defense motions to dismiss individual Plaintiffs’ cases in MDLs, based on SOL are generally brought under Rule 12(b)(6) (Failure to State a Claim Upon Which Relief Can be Granted) or Rule 12(c) Motion for Judgment on the Pleadings (see citations at the end of this article).

If a Defendant wishes to raise SOL matters under 12(b)(6), they must do so by the filing of a motion.

In the MDL context, this means that the “Master Answer” would need to adequately plead the SOL Statutes and Jurisprudence of all 50 States, as well as every possible set of Plaintiff facts that might later arise (on a case-by-case basis) relevant to those SOL Statutes and Jurisprudence of all 50 States. If the Master Answer was not plead as above, the Defendant would need to file for leave to amend, and file said amendment to the answer of the given specific Plaintiff’s case.

In that it would be impossible for a Defendant to accomplish the above in the “Master Answer”, a Defendant should be required to file a motion for leave to amend (to plead facts, law, and other matters not pled in the Master Answer) specific to the given Plaintiff against whom they move).

In this scenario, a Plaintiff Motion to Strike pursuant to Rule 12(f) should be considered, based on Defendant’s failure to adequately plead the defense in the answer. Additionally, the Defendant having raised matters (like specific state law) in the motion to dismiss, not raised in the answer (matters outside the pleadings).

If the Defendant Motion for Judgment on the Pleadings Fed R. Civ. Pro. 12(c), and raises any matter (case law citation, statute, or fact) not cited and raised in the Master Answer, the Court must treat this motion as a Motion for Summary Judgement and apply Fed. R. Civ. Pro. 56, pursuant to Fed. R. Civ. Pro. 12 (d).

Under either scenario, it would be arguably prejudicial and an abuse of discretion for a Court to allow a Defendant leave to amend their answer, for the purpose of filing a motion under 12(b)(6), and then deny the Plaintiff the same leave (to amend the complaint), once the Defendant’s motion was filed.
According to Fed R. Civ. Pro. 12(c) (which invokes Fed. R. Civ. Pro. 56), it would arguably be an abuse of discretion for the Court to deny a Plaintiff’s motion to amend, in the face of a motion under these rules. In fact, the widely held (the term “black letter case law” is apt) that leave to amend is to be freely granted, is not merely a concept, as the premise behind the concept is rooted in the right to due process granted under the U.S. Constitution.
The Taxotere Court seems to be willing to allow Defendants to file dismissal motions, raising matter (case law, statute etc.) not previously raised (matters outside the [prior] pleadings) at the late stages of the litigation, while denying Plaintiffs leave to amend, holding that it would be prejudicial (to Defendants) for the Court to allow Plaintiffs to amend their complaints at “this late stage”.

“You can’t amend your answer at this late stage, to counter a motion brought by Defendants at this late stage.” One wonders how a court of equity justifies such an inequitable holding.

AUTHORITIES

Rule 15 (a) declares that leave to amend, “shall be freely given when justice so requires”; this mandate is to be heeded. Foman v. Davis, 371 US 178 – Supreme Court 1962 id at 182.

We review the decision to deny a party leave to amend its complaint for abuse of discretion. United States ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 387 (5th Cir.2003). Leave to amend should be freely given, FED. R. CIV. P. 15(a), and outright refusal to grant leave to amend without a justification such as, “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” is considered an abuse of discretion. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see also Humana Health Plan, 336 F.3d at 386 (citing Foman for examples of permitted reasons to deny leave to amend). US ex rel. Adrian v. Regents of Univ. of Calif., 363 F. 3d 398 – Court of Appeals, 5th Circuit 2004.

It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities. “The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.” Conley v. Gibson, 355 U. S. 41, 48. Foman v. Davis, 371 US 178 – Supreme Court 1962 id at 182.

Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: (6) failure to state a claim upon which relief can be granted; (Fed. R. Civ. Pro. 12(b)(6)
Motion for Judgment on the Pleadings. After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings. Fed R. Civ. Pro. 12(c)

Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to, and not excluded by, the Court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. Fed. R. Civ. Pro. 12 (d)

Disclaimer:

This article was written by John Ray. John Ray is not an attorney. No word, statement, utterance nor implication herein, should be construed as legal advice. The expressions in this article are the thoughts and opinions of the author and should not be attributed to any third party. The Statutes, Rules and Case Law cited herein, speak for themselves.

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ROUND UP SETTLEMENT REDUX – ARE THEY FOR REAL THIS TIME?

BACKGROUND

On June 24, 2020, Bayer announced agreements to resolve major legacy Monsanto litigation. The press release, issued primarily for the benefit of nervous Bayer investors, implied that Bayer had reached settlement to resolve the majority of Plaintiff cases. Bayer claimed that the settlement would range between $10.1 billion to S10.9 billion U.S.

Although Mass Tort Nexus (MTN) had serious doubts that Bayer would accomplish substantial resolution of the litigation at a cost of $10.1 billion to S10.9 billion U.S., we waited several months before publishing our article titled, Dear Bayer, the number is $22 Billion.

It appears that Bayer has given up any hope of a global settlement of Plaintiff cases, at significantly subpar settlement values.
The latest information received from MTN sources leads us to believe that Bayer is now attempting to settle for more reasonable values, with firms considered to be a “litigation threat”, while offering firms they do not consider to be a trial threat, far lower average case values.

WILL THIS NEW STRATEGY WORK?

It is probable that Bayer will reach settlement with firms that have already scored big trial wins, by offering reasonable average case values. As is generally the case, settlement agreements with these firms are likely to include “gentlemen’s agreements”, precluding these firms bringing new cases post settlement of their existing dockets.

It is also probable that Bayer will succeed in reaching settlement, at significantly subpar values, with a number of those firms Bayer does not consider a litigation or trial threat.

The wild card for Bayer in this strategy arises from any assumption that they have correctly identified all firms that might pose serious litigation/trial threat. Even if a given firm or attorney has never brought down a jury award in excess of $100 million or $1 billion, does not mean they are incapable of such an achievement. It is important to note, among those firms that are members of this very small club, prior to their having acquired their first earth shattering (and stock price impacting) jury award, they might have been included in the group Bayer does not consider to be a threat. There is a first time for everything.

Additionally, it is never wise to insult (directly or indirectly) any Plaintiff’s attorney if you are trying to reach settlement. Many Plaintiffs’ attorneys would consider being thought of as “no threat” at trial, an insult to be addressed by disproving the assumption.

Bayer stockholders have long ago lost patience with the company’s handling of the Round Up litigation. Bayer stock would not likely fair well if another $100 million or $1 billion dollar verdict was handed down.

Twenty-nine years ago, Mark Lanier was just another attorney, (as far as anyone knew) fast forward to 2021, and over $20 billion(ish) in jury verdicts later, Mark Lanier, is now “that Mark Lanier” . Twenty-nine years ago Bayer would not likely have considered Mark a serious threat and would have likely paid the price for their underestimation.

Jim Onder was just a down to earth unassuming fellow raised in the mid-west, and although Jim is still a down to earth unassuming fellow however, Jim Onder is now “that Jim Onder.”

Atticus Finch was not, ‘that Atticus Finch”, until he was.

THE BOTTOM LINE

Bayer plays a risky game, at very high stakes, if they fail to recognize any attorney they do not consider a serious threat, might not be the next Atticus Finch, just waiting to become “that Atticus Finch.”

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FDA REQUEST RECALL OF ALL ZANTAC/ RANTIDINE PRODUCTS. IS THIS THE TIP OF A MUCH LARGER ICEBERG? By JOHN RAY

On 04/01/2020, the FDA requested that all makers of all ranitidine drugs (Zantac and generics) remove their products from the market. The reasoning citied by the FDA “The FDA has determined that the impurity in some ranitidine products increases over time and when stored at higher than room temperatures may result in consumer exposure to unacceptable levels of this impurity”. See entire press release at this link.

The reason the FDA has requested that all ranitidine (Zantac et.al) products be removed from the market go far beyond the reasons currently stated in the FDA press release.

PRIMARY TOPICS COVERED IN THIS ARTICLE

  1. The FDA may (and arguably should) demand the recall of all ‘histamine H2-receptor antagonists’ (227 approved products in total) as the “contamination issue” is not the primary defect or danger presented by these drugs. In more simple terms, these drugs most likely cause the production of high levels of N-Nitroso compounds when introduced in the human body, especially in individuals with higher than normal levels of acid in their stomach or GI tract. Why? ‘Histamine H2-receptor antagonists are nitrosatable.Nitrosatable: Capable of being converted into nitroso compounds also referred to as n-nitroso compounds. (See list of n-nitroso compounds in appendix A below)Nitrosatable Drug: Drugs Capable of being converted into nitroso compound also referred to as n- nitroso compounds.) Generally, the conversion to or production of the n- nitroso compound occurs when the drug interacts with the acidic compounds found in the stomach and gastrointestinal tract.
  2. The litigation resulting from the current ranitidine requested recall may dramatically increase in scope over the next year, to include all ‘histamine H2-receptor antagonists without regard to whether an individual consumed a product known to have been contaminated.
  3. The litigation will be complex as under certain scenarios cases involved ANDA approved products (generics) may be foreclosed on by Pliva v. Mensing, while under other circumstances Pliva v. Mensing may not foreclose on claims involving generics (this subject will be more thoroughly covered in future articles).
  4. The injuries or adverse events caused by the n-nitroso compounds, whether through contamination in the production process, aggravated by heat or due to the inherent nitrosatable properties of Histamine H2-receptor antagonists are not limited to cancer, the n-nitroso compounds produced by consumption of these drugs (without regard to contamination, not only are believed to cause cancer. The n-nitroso compounds in question are also known to cause major organ failure, still births and birth defects. The fact that pregnant women often have issues with stomach acidity and consume ‘histamine H2-receptor antagonists” to mitigate the pain associated with this ailment, is of significant concern to this researcher. (this subject will be more thoroughly covered in future articles)

THE ELEPHANT IN THE ROOM

The FDAs reasoning behind the requested recall of all ranitidine products being that the level or amount of the N-Nitroso impurity (contamination) increases when exposed to heat higher than room temperatures begs the following question:

Why is the FDA only requesting the removal of ranitidine products and not other products such as the various blood pressure medications (ie. Valsartan) that have also been found to be contaminated with N-Nitroso compounds?

There may be a simple answer to the question posed. Ranitidine like all other ‘histamine H2-receptor antagonists’ are nitrosatable while Valsartan et.al. drugs are not nitrosatable.

Histamine H2-Receptor Antagonists
Histamine H2-Receptor Antagonists also known as H2 blockers are a group of medicines that reduce the amount of acid produced by the cells in the lining of the stomach. They include cimetidine, famotidine, nizatidine and ranitidine, and have various brand names, including Zantac. (See Appendix B1, a list of all FDA approved ranitidine and Appendix B2 for a list of all other FDA approved ‘histamine H2-receptor antagonists’ (141 products)

Individuals take H2-receptor antagonists due to pain caused lower than normal PH Levels (more acidic) stomach and gastrointestinal “juices” than normal. The lining of the stomach and other structures in the gastrointestinal tract are not designed to resist degradation by acids with lower PH (more acidic) than the normal levels found in healthy individuals.

The scientific literature supports the conclusion that the introduction of a Nitrosatable Drug in a patient with lower than normal (more acidic) PH levels in their Stomach and GI tract, produces higher levels of as n-nitroso compounds than are produced with that same drug is introduced into the body of an individual with normal PH levels (normal acid levels) in their Stomach and GI tract see:

See: N-Nitrosamines in gastric juice of patients with gastric ulcer before and during treatment with histamine H2-receptor antagonists: https://link.springer.com/article/10.1007/BF02776810

REASONABLE CONCLUSION

Reasonable Conclusion: A Nitrosatable Drug designed to treat individuals known to have lower than normal PH levels in their Stomach and GI tract, is defective in concept and design in that the drug will arguably create higher levels of n- nitroso compounds in the group of individuals that the drug is intended to treat, versus a nitrosatable Drug designed to treat individuals not known to have lower than normal PH levels in their Stomach and GI tract (such as Valsartan). More simply stated, the drugs are intended to treat individuals with pre-existing conditions that make these individuals more susceptible to the significant adverse events that can result from consumption of the drug.

THE TIP OF A VERY LARGE ICEBERG

The issue arising from contamination certain lots of Valsartan and certain Ranitidine products was first brought to the attention of the FDA by a small company relatively young company Valisure, LLC (founded in 2015) operating out of New Haven Connecticut. See the record of communications between Valisure, LLC and the FDA at this link.

Valisure’s Harvard- and Yale-trained scientists have developed laser-based technology to analyze the chemical properties and ingredients of pharmaceutical products. The novel technology employs laser-induced, quantum shift emissions to address the variability and quality problems that pervade many pharmaceutical products throughout the US.

On an unrelated note that might be of interest to investors, Valisure, currently a privately held company, filed the required documents to make a public stock offering in 2019 see documents at this link.

Shortly after Valisure filed its first petition related to its findings of NDMA and other n-nitroso compounds found in certain lots of blood pressure drugs (Valsartan et.al.) and antacid drugs (Zantac et.al) the FDA began a rapid-fire succession of actions designed to remove certain lots of these products from the market. See the relevant FDA actions at this link.

The fact that the FDA has now requested the removal of all ranitidine drugs from the market, (without regard to specific lot contamination) while not requesting the same of those non-nitrosatable drugs (Valsartan) for which contaminated lots have been discovered, lead this researcher to the conclusion that the issue with the ranitidine and other H2 blockers, goes far beyond the fact that a limited number of lots were found to be contaminated with the same harmful compounds the drug produces when introduced into the human body, without regard to additional contamination during the manufacturing process.

APENDIX A
LIST OF N-NITOROS COMPOUNDS

NAA N-nitrosoamino acids
NDBA N-nitrosodibutylamine
NDBZA N-nitrosodibenzylamine
NDEA N-Nitrosodiethylamine
NDMA N-Nitrosodimethylamine
NDPA N-Nitrosodipropylamine
NHMT N-nitroso-2-(hydroxymethyl)thiazolidine
NHMTCA N-nitroso-2-hydroxymethylthiazolidine-4-carboxylic acid
NHPRO N-nitroso-4-hydroxyproline
NMAMBA N-nitroso-N-(1-methylacetonyl)-3-methylbutylamine
NMEA N-Methyl-N-ethylnitrosamine
NMOCA N-nitroso-5-methyloxazolidine-4-carboxylic acid
NMOR N-nitrosomorpholine
NMTCA N-nitroso-2-methylthiazolidine-4-carboxylic acid
NPIP N-nitrosopiperidine
NPYR N-nitrosopyrrolidine
NPRO N-nitrosoproline
NSAR N-nitrososarcosine
NTCA N-nitrosothiazolidine-4-carboxylic acid
NTHZ N-nitrosothiazolidine
NTHZCA N-nitrosothiazolidine carboxylic acid and related homologues
N03 Nitrate
NO2 Nitrite

APPENDIX B1
LIST OF ALL FDA APPROVED H2 RECEPTOR ANTAGONIST CONTAINING RANITINIDINE or RANITINIDINE HYRDROCHLORIDE ( 86 Products)

ZANTAC 150 (RANITIDINE HYDROCHLORIDE) | NDA #018703 | TABLET;ORAL | GLAXO GRP LTD
ZANTAC 150 (RANITIDINE HYDROCHLORIDE) | NDA #020251 | TABLET, EFFERVESCENT;ORAL | GLAXO   GRP LTD
ZANTAC (RANITIDINE HYDROCHLORIDE) | NDA #019090 | INJECTABLE;INJECTION | TELIGENT
ZANTAC (RANITIDINE HYDROCHLORIDE) | NDA #019675 | SYRUP;ORAL | GLAXO GRP LTD
ZANTAC 25 (RANITIDINE HYDROCHLORIDE) | NDA #020251 | TABLET, EFFERVESCENT;ORAL | GLAXO GRP LTD
ZANTAC 300 (RANITIDINE HYDROCHLORIDE) | NDA #020095 | CAPSULE;ORAL | GLAXOSMITHKLINE
ZANTAC 300 (RANITIDINE HYDROCHLORIDE) | NDA #018703 | TABLET;ORAL | GLAXO GRP LTD
ZANTAC 75 (RANITIDINE HYDROCHLORIDE) | NDA #020520 | TABLET;ORAL | SANOFI US
ZANTAC 75 (RANITIDINE HYDROCHLORIDE) | NDA #020745 | TABLET, EFFERVESCENT;ORAL | SANOFI US
   ZANTAC IN PLASTIC CONTAINER (RANITIDINE HYDROCHLORIDE) | NDA #019593 | INJECTABLE;INJECTION | TELIGENT
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #074864 | TABLET;ORAL | WATSON LABS
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #075000 | TABLET;ORAL | RANBAXY
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #075094 | TABLET;ORAL | CONTRACT PHARMACAL
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #075132 | TABLET;ORAL | SUN PHARM INDS LTD
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #075165 | TABLET;ORAL | HERITAGE PHARMA
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #075167 | TABLET;ORAL | APOTEX INC
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #075180 | TABLET;ORAL | PAR PHARM
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #075208 | TABLET;ORAL | WOCKHARDT LTD
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #075212 | TABLET;ORAL | ANI PHARMS INC
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #075254 | TABLET;ORAL | RANBAXY
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #075294 | TABLET;ORAL | DR REDDYS LABS LTD
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #075296 | TABLET;ORAL | ANI PHARMS INC
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #075439 | TABLET;ORAL | SUN PHARM INDS LTD
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #075497 | TABLET;ORAL | MYLAN
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #075519 | TABLET;ORAL | SANDOZ
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #075557 | CAPSULE;ORAL | TEVA
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #075564 | CAPSULE;ORAL | MYLAN
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #075742 | CAPSULE;ORAL | DR REDDYS LABS LTD
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #074023 | TABLET;ORAL | MYLAN
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #074467 | TABLET;ORAL | SANDOZ
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #074488 | TABLET;ORAL | ANI PHARMS INC
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #074552 | TABLET;ORAL | MYLAN
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #074655 | CAPSULE;ORAL | SANDOZ
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #074662 | TABLET;ORAL | BOEHRINGER INGELHEIM
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #074680 | TABLET;ORAL | APOTEX
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #074764 | INJECTABLE;INJECTION | BEDFORD
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #074777 | INJECTABLE;INJECTION | WEST-WARD PHARMS INT
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #076705 | TABLET;ORAL | DR REDDYS LABS INC
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #076760 | TABLET;ORAL | WOCKHARDT
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #076195 | TABLET;ORAL | PERRIGO
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #076124 | SYRUP;ORAL | ACTAVIS MID ATLANTIC
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #077405 | SYRUP;ORAL | PHARM ASSOC
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #077458 | INJECTABLE;INJECTION | WEST-WARD PHARMS INT
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #077476 | SYRUP;ORAL | TARO
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #077426 | TABLET;ORAL | ANI PHARMS INC
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #078192 | TABLET;ORAL | DR REDDYS LABS LTD
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #077824 | TABLET;ORAL | AMNEAL PHARMS NY
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #078701 | TABLET;ORAL | WOCKHARDT
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #078684 | SYRUP;ORAL | BRECKENRIDGE
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #077602 | SYRUP;ORAL | APOTEX INC
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #078312 | SYRUP;ORAL | AMNEAL PHARMS
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #078448 | SYRUP;ORAL | RANBAXY
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #078542 | TABLET;ORAL | GLENMARK PHARMS INC
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #078653 | TABLET;ORAL | WOCKHARDT
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #078884 | TABLET;ORAL | WOCKHARDT
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #078890 | SYRUP;ORAL | LANNETT CO INC
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #090054 | SYRUP;ORAL | ANDA REPOSITORY
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #090102 | SYRUP;ORAL | TORRENT
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #079076 | INJECTABLE;INJECTION | MYLAN LABS LTD
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #079211 | SYRUP;ORAL | WOCKHARDT
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #079212 | SYRUP;ORAL | WOCKHARDT
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #200536 | TABLET;ORAL | STRIDES PHARMA
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #201745 | TABLET;ORAL | STRIDES PHARMA
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #091288 | SYRUP;ORAL | LANNETT CO INC
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #091534 | INJECTABLE;INJECTION | ZYDUS PHARMS USA INC
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #091078 | SYRUP;ORAL | HI TECH PHARMA
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #091091 | SYRUP;ORAL | NOSTRUM LABS INC
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #090623 | SYRUP;ORAL | AUROBINDO PHARMA LTD
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #091429 | TABLET;ORAL | PERRIGO R AND D
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #200172 | TABLET;ORAL | APOTEX INC
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #203694 | TABLET;ORAL | ACIC PHARMS
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #205512 | TABLET;ORAL | STRIDES PHARMA
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #211893 | CAPSULE;ORAL | APPCO
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #210228 | TABLET;ORAL | UNIQUE PHARM LABS
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #210243 | TABLET;ORAL | GRANULES INDIA LTD
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #210250 | TABLET;ORAL | UNIQUE PHARM LABS
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #209859 | CAPSULE;ORAL | AJANTA PHARMA LTD
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #210010 | TABLET;ORAL | STRIDES PHARMA
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #210681 | CAPSULE;ORAL | NOVITIUM PHARMA
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #211058 | CAPSULE;ORAL | AUROBINDO PHARMA LTD
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #211289 | TABLET;ORAL | VKT PHARMA PVT LTD
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #209160 | TABLET;ORAL | STRIDES PHARMA
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #209161 | TABLET;ORAL | STRIDES PHARMA
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #207578 | TABLET;ORAL | AUROBINDO PHARMA LTD
RANITIDINE HYDROCHLORIDE (RANITIDINE HYDROCHLORIDE) | ANDA #207579 | TABLET;ORAL | AUROBINDO PHARMA LTD
    RANITIDINE (RANITIDINE) | ANDA #074794 | SOLUTION; ORAL | ACTAVIS ELIZABETH

APPENDIX B2
LIST OF ALL FDA APPROVED H2 RECEPTOR ANTAGONIST (141 Products)

AXID (NIZATIDINE) | NDA #021494 | SOLUTION;ORAL | BRAINTREE
AXID (NIZATIDINE) | NDA #019508 | CAPSULE;ORAL | SMITHKLINE BEECHAM
AXID AR (NIZATIDINE) | NDA #020555 | TABLET;ORAL | GLAXOSMITHKLINE
NIZATIDINE (NIZATIDINE) | ANDA #075934 | CAPSULE;ORAL | MYLAN PHARMS INC
NIZATIDINE (NIZATIDINE) | ANDA #075616 | CAPSULE;ORAL | WATSON LABS
NIZATIDINE (NIZATIDINE) | ANDA #075668 | CAPSULE;ORAL | ANI PHARMS INC
NIZATIDINE (NIZATIDINE) | ANDA #075806 | CAPSULE;ORAL | MYLAN PHARMS INC
NIZATIDINE (NIZATIDINE) | ANDA #075461 | CAPSULE;ORAL | ANI PHARMS INC
NIZATIDINE (NIZATIDINE) | ANDA #076383 | CAPSULE;ORAL | APOTEX INC
NIZATIDINE (NIZATIDINE) | ANDA #076178 | CAPSULE;ORAL | SANDOZ
NIZATIDINE (NIZATIDINE) | ANDA #090576 | SOLUTION;ORAL | AMNEAL PHARMS
NIZATIDINE (NIZATIDINE) | ANDA #090618 | CAPSULE;ORAL | GLENMARK GENERICS
NIZATIDINE (NIZATIDINE) | ANDA #077314 | CAPSULE;ORAL | DR REDDYS LABS LTD
TAGAMET (CIMETIDINE) | NDA #017920 | TABLET;ORAL | GLAXOSMITHKLINE
TAGAMET (CIMETIDINE HYDROCHLORIDE) | NDA #017924 | SOLUTION;ORAL | GLAXOSMITHKLINE
TAGAMET (CIMETIDINE HYDROCHLORIDE) | NDA #017939 | INJECTABLE;INJECTION | GLAXOSMITHKLINE
TAGAMET HB (CIMETIDINE) | NDA #020238 | TABLET;ORAL | MEDTECH PRODUCTS
TAGAMET HB 200 (CIMETIDINE) | NDA #020951 | SUSPENSION;ORAL | GLAXOSMITHKLINE
TAGAMET HYDROCHLORIDE IN SODIUM CHLORIDE 0.9% IN PLASTIC CONTAINER (CIMETIDINE HYDROCHLORIDE) | NDA #019434 | INJECTABLE;INJECTION | GLAXOSMITHKLINE
CIMETIDINE (CIMETIDINE) | ANDA #074890 | TABLET;ORAL | HIKMA
CIMETIDINE (CIMETIDINE) | ANDA #074948 | TABLET;ORAL | APOTEX
CIMETIDINE (CIMETIDINE) | ANDA #074972 | TABLET;ORAL | PERRIGO
CIMETIDINE (CIMETIDINE) | ANDA #074961 | TABLET;ORAL | CONTRACT PHARMACAL
CIMETIDINE (CIMETIDINE) | ANDA #074963 | TABLET;ORAL | CONTRACT PHARMACAL
CIMETIDINE (CIMETIDINE) | ANDA #075122 | TABLET;ORAL | SANDOZ INC
CIMETIDINE (CIMETIDINE) | ANDA #075285 | TABLET;ORAL | L PERRIGO CO
CIMETIDINE (CIMETIDINE) | ANDA #075345 | TABLET;ORAL | IVAX SUB TEVA PHARMS
CIMETIDINE (CIMETIDINE) | ANDA #075425 | TABLET;ORAL | WATSON LABS TEVA
CIMETIDINE (CIMETIDINE) | ANDA #074316 | TABLET;ORAL | WATSON LABS INC
CIMETIDINE (CIMETIDINE) | ANDA #074329 | TABLET;ORAL | CHARTWELL MOLECULES
CIMETIDINE (CIMETIDINE) | ANDA #074151 | TABLET;ORAL | TEVA
CIMETIDINE (CIMETIDINE) | ANDA #074246 | TABLET;ORAL | MYLAN
CIMETIDINE (CIMETIDINE) | ANDA #074250 | TABLET;ORAL | SANDOZ INC
CIMETIDINE (CIMETIDINE) | ANDA #074100 | TABLET;ORAL | YAOPHARMA CO LTD
CIMETIDINE (CIMETIDINE) | ANDA #074566 | TABLET;ORAL | PLIVA
CIMETIDINE (CIMETIDINE) | ANDA #074568 | TABLET;ORAL | PLIVA
CIMETIDINE (CIMETIDINE) | ANDA #074361 | TABLET;ORAL | CYCLE PHARMS LTD
CIMETIDINE (CIMETIDINE) | ANDA #074463 | TABLET;ORAL | TEVA
CIMETIDINE (CIMETIDINE) | ANDA #074349 | TABLET;ORAL | WATSON LABS INC
CIMETIDINE (CIMETIDINE) | ANDA #074339 | TABLET;ORAL | DAVA PHARMS INC
CIMETIDINE (CIMETIDINE) | ANDA #074340 | TABLET;ORAL | DAVA PHARMS INC
CIMETIDINE (CIMETIDINE) | ANDA #074401 | TABLET;ORAL | IVAX SUB TEVA PHARMS
CIMETIDINE (CIMETIDINE) | ANDA #074402 | TABLET;ORAL | IVAX SUB TEVA PHARMS
CIMETIDINE (CIMETIDINE) | ANDA #074365 | TABLET;ORAL | TEVA
CIMETIDINE (CIMETIDINE) | ANDA #074371 | TABLET;ORAL | CYCLE PHARMS LTD
CIMETIDINE (CIMETIDINE) | ANDA #074506 | TABLET;ORAL | UPSHER SMITH LABS
CIMETIDINE (CIMETIDINE) | ANDA #074424 | TABLET;ORAL | IVAX SUB TEVA PHARMS
CIMETIDINE HYDROCHLORIDE (CIMETIDINE HYDROCHLORIDE) | ANDA #074428 | INJECTABLE;INJECTION | DAVA PHARMS INC
CIMETIDINE HYDROCHLORIDE (CIMETIDINE HYDROCHLORIDE) | ANDA #074344 | INJECTABLE;INJECTION | HOSPIRA
CIMETIDINE HYDROCHLORIDE (CIMETIDINE HYDROCHLORIDE) | ANDA #074345 | INJECTABLE;INJECTION | HOSPIRA
CIMETIDINE HYDROCHLORIDE (CIMETIDINE HYDROCHLORIDE) | ANDA #074353 | INJECTABLE;INJECTION | LUITPOLD
CIMETIDINE HYDROCHLORIDE (CIMETIDINE HYDROCHLORIDE) | ANDA #074412 | INJECTABLE;INJECTION | HOSPIRA
CIMETIDINE HYDROCHLORIDE (CIMETIDINE HYDROCHLORIDE) | ANDA #074422 | INJECTABLE;INJECTION | HOSPIRA
CIMETIDINE HYDROCHLORIDE (CIMETIDINE HYDROCHLORIDE) | ANDA #074541 | SOLUTION;ORAL | CYCLE PHARMS LTD
CIMETIDINE HYDROCHLORIDE (CIMETIDINE HYDROCHLORIDE) | ANDA #074553 | SOLUTION;ORAL | PHARM ASSOC
CIMETIDINE HYDROCHLORIDE (CIMETIDINE HYDROCHLORIDE) | ANDA #074610 | SOLUTION;ORAL | ANI PHARMS INC
CIMETIDINE HYDROCHLORIDE (CIMETIDINE HYDROCHLORIDE) | ANDA #074664 | SOLUTION;ORAL | HI TECH PHARMA
CIMETIDINE HYDROCHLORIDE (CIMETIDINE HYDROCHLORIDE) | ANDA #074005 | INJECTABLE;INJECTION | VINTAGE PHARMS LLC
CIMETIDINE HYDROCHLORIDE (CIMETIDINE HYDROCHLORIDE) | ANDA #074251 | SOLUTION;ORAL | LANNETT CO INC
CIMETIDINE HYDROCHLORIDE (CIMETIDINE HYDROCHLORIDE) | ANDA #074252 | INJECTABLE;INJECTION | TEVA PARENTERAL
CIMETIDINE HYDROCHLORIDE (CIMETIDINE HYDROCHLORIDE) | ANDA #074176 | SOLUTION;ORAL | G AND W LABS INC
CIMETIDINE HYDROCHLORIDE (CIMETIDINE HYDROCHLORIDE) | ANDA #074296 | INJECTABLE;INJECTION | HOSPIRA
CIMETIDINE HYDROCHLORIDE (CIMETIDINE HYDROCHLORIDE) | ANDA #075560 | SOLUTION;ORAL | PHARM ASSOC
CIMETIDINE HYDROCHLORIDE (CIMETIDINE HYDROCHLORIDE) | ANDA #075110 | SOLUTION;ORAL | ANI PHARMS INC
CIMETIDINE HYDROCHLORIDE (CIMETIDINE HYDROCHLORIDE) | ANDA #074757 | SOLUTION;ORAL | WOCKHARDT BIO AG
CIMETIDINE HYDROCHLORIDE (CIMETIDINE HYDROCHLORIDE) | ANDA #074859 | SOLUTION;ORAL | ANI PHARMS INC
CIMETIDINE HYDROCHLORIDE IN SODIUM CHLORIDE 0.9% IN PLASTIC CONTAINER (CIMETIDINE HYDROCHLORIDE) | ANDA #074269 | INJECTABLE;INJECTION | HOSPIRA
CIMETIDINE HYDROCHLORIDE IN SODIUM CHLORIDE 0.9% IN PLASTIC CONTAINER (CIMETIDINE HYDROCHLORIDE) | ANDA #074468 | INJECTABLE;INJECTION | HOSPIRA
PEPCID (FAMOTIDINE) | NDA #019462 | TABLET;ORAL | VALEANT PHARMS NORTH
PEPCID (FAMOTIDINE) | NDA #019510 | INJECTABLE;INJECTION | MERCK
PEPCID (FAMOTIDINE) | NDA #019527 | FOR SUSPENSION;ORAL | SALIX PHARMS
PEPCID AC (FAMOTIDINE) | NDA #020902 | TABLET;ORAL | J AND J CONSUMER INC
PEPCID AC (FAMOTIDINE) | NDA #020801 | TABLET, CHEWABLE;ORAL | J AND J CONSUMER INC
PEPCID AC (FAMOTIDINE) | NDA #020325 | TABLET;ORAL | J AND J CONSUMER INC
PEPCID COMPLETE (CALCIUM CARBONATE; FAMOTIDINE; MAGNESIUM HYDROXIDE) | NDA #020958 | TABLET, CHEWABLE;ORAL | J AND J CONSUMER INC
PEPCID PRESERVATIVE FREE (FAMOTIDINE) | NDA #019510 | INJECTABLE;INJECTION | MERCK
PEPCID PRESERVATIVE FREE IN PLASTIC CONTAINER (FAMOTIDINE) | NDA #020249 | INJECTABLE;INJECTION | MERCK SHARP DOHME
PEPCID RPD (FAMOTIDINE) | NDA #020752 | TABLET, ORALLY DISINTEGRATING;ORAL | MERCK
FAMOTIDINE (FAMOTIDINE) | ANDA #201695 | FOR SUSPENSION;ORAL | NOVEL LABS INC
FAMOTIDINE (FAMOTIDINE) | ANDA #201995 | FOR SUSPENSION;ORAL | HI-TECH PHARMA CO
FAMOTIDINE (FAMOTIDINE) | ANDA #206530 | TABLET;ORAL | AUROBINDO PHARMA LTD
FAMOTIDINE (FAMOTIDINE) | ANDA #206531 | TABLET;ORAL | AUROBINDO PHARMA LTD
FAMOTIDINE (FAMOTIDINE) | ANDA #077146 | TABLET;ORAL | WOCKHARDT
FAMOTIDINE (FAMOTIDINE) | ANDA #077351 | TABLET;ORAL | PERRIGO R AND D
FAMOTIDINE (FAMOTIDINE) | ANDA #077352 | TABLET;ORAL | PERRIGO R AND D
FAMOTIDINE (FAMOTIDINE) | ANDA #077367 | TABLET;ORAL | DR REDDYS LABS LTD
FAMOTIDINE (FAMOTIDINE) | ANDA #075942 | INJECTABLE;INJECTION | APOTEX INC
FAMOTIDINE (FAMOTIDINE) | ANDA #076101 | TABLET;ORAL | SANDOZ
FAMOTIDINE (FAMOTIDINE) | ANDA #078641 | INJECTABLE;INJECTION | MYLAN LABS LTD
FAMOTIDINE (FAMOTIDINE) | ANDA #078916 | TABLET;ORAL | ALEMBIC PHARMS LTD
FAMOTIDINE (FAMOTIDINE) | ANDA #091020 | FOR SUSPENSION;ORAL | NAVINTA LLC
FAMOTIDINE (FAMOTIDINE) | ANDA #090283 | TABLET;ORAL | SUN PHARM INDS LTD
FAMOTIDINE (FAMOTIDINE) | ANDA #090837 | TABLET;ORAL | WOCKHARDT
FAMOTIDINE (FAMOTIDINE) | ANDA #090440 | FOR SUSPENSION;ORAL | LUPIN LTD
FAMOTIDINE (FAMOTIDINE) | ANDA #075062 | TABLET;ORAL | WATSON LABS
FAMOTIDINE (FAMOTIDINE) | ANDA #075192 | INJECTABLE; INJECTION | MARSAM PHARMS LLC
FAMOTIDINE (FAMOTIDINE) | ANDA #075193 | INJECTABLE; INJECTION | MARSAM PHARMS LLC
FAMOTIDINE (FAMOTIDINE) | ANDA #075194 | INJECTABLE; INJECTION | MARSAM PHARMS LLC
FAMOTIDINE (FAMOTIDINE) | ANDA #075302 | TABLET;ORAL | PLD ACQUISITIONS
FAMOTIDINE (FAMOTIDINE) | ANDA #075311 | TABLET;ORAL | TEVA
FAMOTIDINE (FAMOTIDINE) | ANDA #075312 | TABLET;ORAL | TEVA
FAMOTIDINE (FAMOTIDINE) | ANDA #075400 | TABLET;ORAL | PERRIGO
FAMOTIDINE (FAMOTIDINE) | ANDA #075404 | TABLET;ORAL | WATSON LABS
FAMOTIDINE (FAMOTIDINE) | ANDA #075457 | TABLET;ORAL | MYLAN PHARMS INC
FAMOTIDINE (FAMOTIDINE) | ANDA #075511 | TABLET;ORAL | IVAX SUB TEVA PHARMS
FAMOTIDINE (FAMOTIDINE) | ANDA #075512 | TABLET;ORAL | P AND L
FAMOTIDINE (FAMOTIDINE) | ANDA #075607 | TABLET;ORAL | SANDOZ
FAMOTIDINE (FAMOTIDINE) | ANDA #075610 | TABLET;ORAL | APOTEX
FAMOTIDINE (FAMOTIDINE) | ANDA #075611 | TABLET;ORAL | APOTEX
FAMOTIDINE (FAMOTIDINE) | ANDA #075639 | TABLET;ORAL | SUN PHARM INDUSTRIES
FAMOTIDINE (FAMOTIDINE) | ANDA #075650 | TABLET;ORAL | ACTAVIS ELIZABETH
FAMOTIDINE (FAMOTIDINE) | ANDA #075651 | INJECTABLE;INJECTION | ATHENEX INC
FAMOTIDINE (FAMOTIDINE) | ANDA #075488 | INJECTABLE;INJECTION | WEST-WARD PHARMS INT
FAMOTIDINE (FAMOTIDINE) | ANDA #075674 | TABLET;ORAL | MYLAN
FAMOTIDINE (FAMOTIDINE) | ANDA #075684 | INJECTABLE;INJECTION | ATHENEX INC
FAMOTIDINE (FAMOTIDINE) | ANDA #075704 | TABLET;ORAL | MYLAN
FAMOTIDINE (FAMOTIDINE) | ANDA #075705 | INJECTABLE;INJECTION | HOSPIRA
FAMOTIDINE (FAMOTIDINE) | ANDA #075707 | INJECTABLE;INJECTION | APOTHECON
FAMOTIDINE (FAMOTIDINE) | ANDA #075709 | INJECTABLE;INJECTION | FRESENIUS KABI USA
FAMOTIDINE (FAMOTIDINE) | ANDA #075715 | TABLET, CHEWABLE;ORAL | PERRIGO
FAMOTIDINE (FAMOTIDINE) | ANDA #075718 | TABLET;ORAL | DR REDDYS LABS LTD
FAMOTIDINE (FAMOTIDINE) | ANDA #075793 | TABLET;ORAL | SANDOZ
FAMOTIDINE (FAMOTIDINE) | ANDA #075799 | INJECTABLE;INJECTION | WEST-WARD PHARMS INT
FAMOTIDINE (FAMOTIDINE) | ANDA #075805 | TABLET;ORAL | CARLSBAD
FAMOTIDINE (FAMOTIDINE) | ANDA #075786 | TABLET;ORAL | CELLTRION
FAMOTIDINE (FAMOTIDINE) | ANDA #075870 | INJECTABLE;INJECTION | HOSPIRA
FAMOTIDINE (FAMOTIDINE) | ANDA #075905 | INJECTABLE;INJECTION | HOSPIRA
FAMOTIDINE PRESERVATIVE FREE (FAMOTIDINE) | ANDA #075813 | INJECTABLE;INJECTION | FRESENIUS KABI USA
FAMOTIDINE PRESERVATIVE FREE (FAMOTIDINE) | ANDA #075825 | INJECTABLE;INJECTION | ATHENEX INC
FAMOTIDINE PRESERVATIVE FREE (FAMOTIDINE) | ANDA #075708 | INJECTABLE;INJECTION | APOTHECON
FAMOTIDINE PRESERVATIVE FREE (FAMOTIDINE) | ANDA #075669 | INJECTABLE;INJECTION | HOSPIRA
FAMOTIDINE PRESERVATIVE FREE (FAMOTIDINE) | ANDA #075622 | INJECTABLE;INJECTION | ATHENEX INC
FAMOTIDINE PRESERVATIVE FREE (FAMOTIDINE) | ANDA #075486 | INJECTABLE;INJECTION | WEST-WARD PHARMS INT
FAMOTIDINE PRESERVATIVE FREE (FAMOTIDINE) | ANDA #078642 | INJECTABLE;INJECTION | MYLAN LABS LTD
FAMOTIDINE PRESERVATIVE FREE (FAMOTIDINE) | ANDA #075789 | INJECTABLE;INJECTION | WEST-WARD PHARMS INT
FAMOTIDINE PRESERVATIVE FREE (FAMOTIDINE) | ANDA #076324 | INJECTABLE;INJECTION | APOTEX INC
FAMOTIDINE PRESERVATIVE FREE (PHARMACY BULK) (FAMOTIDINE) | ANDA #076322 | INJECTABLE;INJECTION | APOTEX INC
FAMOTIDINE PRESERVATIVE FREE IN PLASTIC CONTAINER (FAMOTIDINE) | ANDA #075591 | INJECTABLE;INJECTION | BAXTER HLTHCARE
FAMOTIDINE PRESERVATIVE FREE IN PLASTIC CONTAINER (FAMOTIDINE) | ANDA #075729 | INJECTABLE;INJECTION | ABBVIE
FAMOTIDINE, CALCIUM CARBONATE, AND MAGNESIUM HYDROXIDE (CALCIUM CARBONATE; FAMOTIDINE; MAGNESIUM HYDROXIDE) | ANDA #077355 | TABLET, CHEWABLE;ORAL | PERRIGO R AND D
FAMOTIDINE, CALCIUM CARBONATE, AND MAGNESIUM HYDROXIDE (CALCIUM CARBONATE; FAMOTIDINE; MAGNESIUM HYDROXIDE) | ANDA #204782 | TABLET, CHEWABLE;ORAL | PERRIGO R AND D

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

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

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

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

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

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

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

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

THE EPA STATEMENTS FORECLOSE ON PREEMPTION DEFENSE

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

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

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

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

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

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

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

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

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

EXAMPLE OF WARNING SUBJECT TO PREEMPTION POST 2019

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

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

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

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

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

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

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

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

FIELD PREEMPTION VS EXPRESS (IMPOSSIBILITY) PREEMPTION

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

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

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

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

TAKE AWAYS

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

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

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

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

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

CONCLUSION

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

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

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

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

THE BURNING QUESTION

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

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

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Xarelto Settlement Faces Legal Challenge

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

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

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

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

Below is the text of the motion mentioned above:

 

PLAINTIFFS’ OBJECTIONS TO SHOW CAUSE ORDERS

INTRODUCTION

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

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

ARGUMENT AND AUTHORITIES

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

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

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

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

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

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

Plaintiffs are not guilty of clear delay or contumacious conduct.

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

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

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

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

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

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

No aggravating factors exist.

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

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

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

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

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

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

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

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

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

CONCLUSION AND PRAYER FOR RELIEF.

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

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

Amchem Products, Inc. v. Windsor

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

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

Cited by 7392 How cited Related articles All 3 versions

 

Ortiz v. Fibreboard Corp.

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

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

Cited by 2364 How cited Related articles All 3 versions

 

Ackal v. Centennial Beauregard Cellular LLC

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

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

Cited by 13 How cited Related articles All 2 versions

 

Kern v. Siemens Corp.

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

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

Cited by 91    How cited Related articles

 

 

Clark v. Universal Builders, Inc.

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

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

Cited by 367 How cited Related articles

 

Clark v. Universal Builders, Inc.

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

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

Cited by 47 How cited Related articles

 

Clark v. Universal Builders, Inc.

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

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

Cited by 26 How cited Related articles

 

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 …

Cited by 13 How cited Related articles All 2 versions

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 …

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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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 …

Cited by 5 How cited Related articles

 

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 …

Cited by 15 How cited Related articles All 2 versions

 

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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Will $33.7 Million IVC Filter Verdict Expedite Mass Settlement?

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

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

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

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

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

 

Emerging Surgical Staplers and Staples Litigation

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

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

 

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

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

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

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

 

IVC Filter Litigation Settlement Progress

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

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

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

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

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

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

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

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

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Understanding the Expanding Talcum Powder and Asbestos Litigation

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

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

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

 

RECENT BACKGROUND

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

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

 

LIVE TESTING HAND GRENADES

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

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

 

FEELING LUCKY?

 

RETAILERS PULL SOME TALCUM POWDER FROM SHELVES

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

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

 

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

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

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

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

 

Understanding the Link Between Talc and Asbestos

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

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

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

Talc Mineral: Mg3Si4O10(OH)2

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

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

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

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

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

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

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

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

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

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

Does the Problem End With A Single Lot?

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

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

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

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

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

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

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

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

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

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

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

 

 

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Mass Tort Billionaires

 

Mass Tort Billionaires

What do they know that you don’t?

 

Fact: Mass Torts have made more plaintiff lawyers billionaires (or billionaire adjacent) than any other practice area.

Myth: Most Mass Tort billionaires made their money from the massive trial verdicts we hear about in the news (RoundUp, Talcum Powder etc.).

Fact: The majority of Mass Tort billionaires (or billionaire adjacent) did not reach this lofty status from major trial verdicts, they built their practice over time, accumulating the knowledge and skills required to independently evaluate a mass tort litigation before taking a financial risk.

Most Successful Mass Tort Firms Learned by Trial and Error

There is an easier way!

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.

You may not be willing to take the risk required to become a “mass tort billionaire”, however, if you are interested in working smarter vs harder and reaching 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 get more information about the September Course.

You may also simply call or email Barbara Capasso or Anne Marie Kopek at 954-530-9892, email- barbara@masstortnexus.com or annemarie@masstortnexus.com

How Most Lawyers Get Started in Mass Torts

One Lawyer, we will call him Mr. Mass Tort Big Bucks, gives another lawyer, we will call Mr. Mass Tort Outsider, an inside tip on a great new mass tort in which Mr. Big Bucks is involved. Mr. Outsider takes the tip and runs with it.

One of two things happen:

Scenario A: The litigation does South and Mr. Outsider thinks “Mass Torts is just a big gamble”, I am never doing that again.

Scenario B: The litigation pays off big and Mr. Outsider becomes overly optimistic, thinking, “Wow this Mass Tort thing is great”, I am going to bet on every new case that come along.

Neither Scenario Is Good for Mr. Outsider

In Scenario A, now “mass tort pessimistic” Mr. Outsider is likely to take himself out of the game (mass tort plaintiff law) that has created more plaintiff lawyer billionaires than any other practice area.

In Scenario B, now “mass tort overly optimistic” Mr. Outsider is likely to throw money at every mass tort litigation that comes along and is at risk of eventually losing his shirt.

  1. Big Bucks, who is already sold on a litigation, is not an objective source of information.
  2. Big Bucks can probably afford to lose money that Mr. Outsider may not be able to afford to lose.

Become a Mass Tort Insider!

Instead of relying on tips from other lawyers or the mass tort rumor mill, gain the “insider knowledge“ that will allow you to evaluate mass tort litigation’s objectively. The next time you get a tip from another lawyer, have the information and knowledge that will allow you to do your homework before taking a leap into a mass tort litigation.

The course starts at the most basic level, discussing the difference between Class Actions and Multi-district Litigation and then progresses to providing the tools needed to evaluate the “metrics” relevant to all mass tort litigation’s which need to be considered before taking a financial risk. The basic metrics (below) are explained in detail before the course progresses to how firms can apply these metrics to make decisions and develop strategies that lead to success.

 

On the third day of the course, lead litigators step in and give presentations on various mass torts in which they are currently involved. Course attendees will be armed with the knowledge developed in the first two days of the course, to ask the lead litigators informed questions and use the metrics and other information they have gained thus far in the course to make decisions about which litigation they may be interested in.

The relatively small class size allows course attendees to interact with the lead litigators in the classroom as well as during the outside activities “up close and personal”.

What do past course attendees have to say?

 

 

Visit our YouTube Channel to hear what other past attendees have to say about the course.

https://www.youtube.com/channel/UC8I9zGYo3YC5BhulgxthCOw/videos

 

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Xarelto Settlement Not So Fast Gentlemen

Those Aggrieved by the Proposed Xarelto Settlement

May Still Get a Chance to be Heard

Thus far firms representing absent plaintiffs (those not represented by leadership) have yet to be given an opportunity to be heard by the court regarding any aspect of the proposed Xarelto settlement.  I previously addressed this issue in another article.

https://www.masstortnexus.com/mass-torts-news/xarelto-settlement-judicial-activism-vs-judicial-tyranny/

Due Process Refresher 

The Fifth and Fourteenth Amendments to the United States Constitution each contain a due process clause. Due process deals with the administration of justice and thus the due process clause acts as a safeguard from arbitrary denial of life, liberty, or property by the government outside the sanction of law. The Supreme Court of the United States interprets the clauses broadly, concluding that these clauses provide four protections: procedural due process (in civil and criminal proceedings), substantive due process.

The core of these requirements is notice and a hearing before an impartial tribunal.

Fuentes v. Shevin, 407 U.S. 67, 81 (1972). At times, the Court has also stressed the dignitary importance of procedural rights, the worth of being able to defend one’s interests even if one cannot change the result.

Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “Parties whose rights are to be affected are entitled to be heard.” Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1863).

Picking Up Where We Left Off

Without Regard to the points made in the prior article, even if the proposed Xarelto settlement agreement reaches the required participation numbers, it should not be a done deal. For Judge Fallon to grant specific common benefit fee requests, it will arguably be necessary to form a “Settlement Class Action” under FRCP 23. Once this occurs, his honor will not have the option of ignoring FRCP 23(e), the requirement to conduct fairness hearings before final approval of the settlement. This will be the time at which firms representing absent plaintiffs may get their chance to be heard and I believe these firms will have much to say.

If Judge Fallon allows the proposed Xarelto settlement to impact plaintiffs, without ever having engaged in any act to protect the rights of absent parties, this egregious failure may well define his legacy, overshadowing and otherwise admirable judicial career.

Note: Nothing would prevent a firm representing a non-settling client from moving to form a Class Action for non-settling plaintiffs, aggrieved by the settlement.

Due to the fact that the proposed Xarelto Settlement did not follow the “opt in” reasoning (see article by Judge Fallon below), the only way the necessity of creating a settlement class could be avoided would be if 100% of all Xarelto plaintiffs accepted the settlement. Even under this circumstance, jurisdictional issues would still exist. I will address this subject more thoroughly later in this article.  First, I will cover recent developments.

Latest Spin on the Xarelto Settlement

I have learned that leadership claims that 26,000 enrollment packages have been received by Brown Greer and they are very confident that they will reach 98% participation. MTN can not verify leaderships statements with Brown Greer as they seem to have been gagged by leadership. Regardless, the proposed settlement only covered 25,000 plaintiffs. The total number of complaints on file in the MDL and Philadelphia Court of Common Pleas has ballooned to over 31,339 plaintiffs since the proposed settlement was first announced. The foregoing begs the question “98% of what”.  26,000 is 82.96% of 31,339. If we take leadership at their word and believe 26,000 plaintiffs have accepted the settlement, then we must assume that the settlement is going to include more than 25,000 plaintiffs and base on “participation calculus” on the total number of cases on file, which is at least 31,339.

Settling 26,000 cases would leave 5339 remaining. I do not believe that the defendants can sell a settlement to their stockholders that leaves 5339 cases (unknown risks) unresolved.

A reliable source has informed me that the “98% participation claim” was based on 98% of the 70% of plaintiffs that have returned the enrollment package, not 98% of all plaintiffs. Maybe leadership is counting on using the “dismissal machine” they have arguably created in co-operation with defense, to get rid of the non-enrollers and therefore do not think these plaintiffs need be counted.

Though I can not verify the foregoing (Brown Greer gagged), I believe the 26,000-enrollment number may be significantly exaggerated or at minimum skewed. Leading non leadership firms to believe the proposed settlement will consummate would be a good way to get firms reluctant to encourage plaintiffs to except the settlement to change course. A self-fulfilling prophecy (stated as fact) if you will.

The Chance and Right to be Heard

I stated, in the previous article (link above) that Judge Fallon arguably lacks subject matter jurisdiction to issue orders related to an MDL settlement. I also stated that since Judge Fallon is an MDL judge that subscribes to the MDLs as Quasi  Class Actions theory and therefore should have held FRCP 23(e) fairness hearings before or currently with issuing in order related to settlement as His Honor did in Vioxx and other MDLs in the past.

Putting aside the above, absent Xarelto plaintiffs (those not represented by leadership firms) may still have a chance to be heard.

How an MDL Judge can properly involve  themselves in settlement:

  1. Plaintiff Leadership and Defense reach a settlement agreement without seeking orders from the court.
  2. Plaintiff Leadership presents the settlement to firms representing absent plaintiffs and if enough those plaintiffs opt into the settlement to meet the required participation threshold, then the settlement can be consummated (only for those that opted in).
  3. Only after the foregoing, would it be proper for the court to become involved. Plaintiff Leadership and Defense can present the consummated agreement (with all opt ins) to the Judge and seek to form a Settlement Class Action (under FRCP 23).

Obviously the ship has sailed with regard to Judge Fallon conducting FRCP 23(3) fairness hearings before or concurrently with issuing orders related to settlement however, it would be inconceivable for His Honor to issue orders granting specific Leadership and PSC Firms common benefit fees without a “Settlement Class Action” being formed.

Why? Without a Settlement Class Action in place, Judge Fallon will have no control over or authority to grant any order related to the global proceeds of the mass settlement.

The Opportunity to Be Heard- Finally?

If the proposed Xarelto Settlement reaches the required participation numbers and is consummated, Judge Fallon will only be able to take control of the global proceeds (in order to grant common benefit fees) via a Settlement Class Action. This will be the point at which firms representing absent plaintiff firms will (as required FRCP 23(e) to be heard). If Judge Fallon neglects to conduct fairness hearings before granting fees, an appellate court is likely to overturn any order granting common benefit fees.

The link below is from a 9th Circuit in the Hyundai Kia MDL. A settlement was reached in this MDL and a Settlement Class Action was granted by the MDL Judge. Suit was filed by firms representing absent plaintiffs related to the common benefit fees awarded arising from the settlement. The

https://www.consumerfinancialserviceslawmonitor.com/wp-content/uploads/sites/501/2019/06/In-re-Hyundai.pdf

Excerpts from Ruling:

On December 23, 2013, the settling parties sought preliminary approval of the nationwide class settlement and moved to certify a settlement class. The district court ordered multiple rounds of briefing concerning the fairness of the settlement, sufficiency of the class notice, the claims process, class certification, choice of law, and other issues. At four hearings held between December 2013 and August 2014, the parties addressed concerns raised by the court sua sponte as well as by objectors and other non-settling plaintiffs. In response to these concerns, the settling parties twice revised the settlement agreement and notice provisions.

After issuing several detailed written rulings, the district court granted preliminary approval of the settlement and certified the class for settlement purposes on August 29, 2014. The court appointed Hagens Berman and McCuneWright as settlement class counsel. In September and October 2014, the district court held four additional hearings, at which it requested that the parties make additional changes to the settlement notices and website, such as adding information about the Reimbursement Program, and rewording the notices to make them easier to understand.

A binding settlement must provide notice to the class in a “reasonable manner” and otherwise be “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(1), (2)

Before the district court approves a class settlement under Rule 23(e), it is “critical” that class members receive adequate notice. Hanlon, 150 F.3d at 1025. To satisfy Rule 23(e)(1), settlement notices must “present information about a proposed settlement neutrally, simply, and understandably.” Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 962 (9th Cir. 2009). “Notice is satisfactory if generally describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come forward and be heard.’” Id. (quoting Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004)).

Rule 23(e) ensures that unnamed class members are protected “from unjust or unfair settlements affecting their rights.” Amchem, 521 U.S. at 623 (1997).

Over the course of several years, the district court performed an admirable job of managing this complex litigation. After the settlement was announced, the district court held multiple status conferences and requested several rounds of briefing to ensure that all of the litigants’ concerns were heard and addressed.

Note: The 9th circuit ruling leave little doubt that had the settlement court failed to comply with FRCP 23(e), that courts grant of attorney’s fees  to “Class Counsel”  would not have withstood appeal.

End Excerpts

 

 

Moving Forward -Two Possible Outcomes

  1. Judge Fallon moves forward with a settlement class (if the settlement consummates) without the required FRCP 23 (e) fairness hearings, in which case any grant of common benefit fees arising from the court would likely be overturned on appeal.

 

  1. Judge Fallon moves forward with a settlement class and does (as required) conduct fairness hearings per FRCP 23(e). Although belated, this would give firms representing absent class members to object to the terms of the settlement as well as any common benefit fees being awarded from the settlement proceeds. Even those plaintiffs that rejected the settlement or were subject to dismissal arising from a settlement related order would arguably have standing (the right to be heard).

 

  1. Leadership Self-Dealing (subject of a future article).
  2. Leadership Conclusion with defense to create a “dismissal machine.
  3. Unwarranted Discounts.
  4. Overly Complex processes created by settlement orders, leading to denial of due process.
  5. Settlement related orders issued absent jurisdiction over the subject matter.

The article below, written by Judge Fallon

COMMON BENEFIT FEES IN MULTI-DISTRICT LITIGATION

https://judicialstudies.duke.edu/sites/default/files/centers/judicialstudies/mdl2014/Common_Benefit_Fees.pdf

By: The Honorable Eldon E. Fallon

Note:. In the article, Judge Fallon, as he has on numerous occasions, referred to “private mass tort settlements” as opt in (vs class actions which are opt outs). His Honors reference to these settlements as Opt In vs Opt Out seems to imply that his jurisdiction over settlement arises from the agreement of the parties that Opt In. By Implication this would mean that any party that does not opt in should not be negatively impacted by the given settlement. This has obviously not held true in the proposed Xarelto Settlement.

The following excerpt from the article by His Honor express the same view he expressed in Vioxx, which involved a settlement very similar to the proposed Xarelto Settlement (with 4 billion additional dollars for roughly the same number of plaintiffs) . In Vioxx, Judge Fallon conducted the Rule 23(e) hearing he references below to allow absent plaintiffs a voice in the settlement. I have yet to discern why His Honor believes Xarelto plaintiffs are less deserving of due process than Vioxx Clients.

Excerpt

The argument used by the courts supporting their equitable authority to review attorneys fees is that Rule 23 of the Federal Rules of Civil Procedure expressly provides that a district court presiding over a class action has a duty to scrutinize the attorneys fees of class counsel to assure that they are reasonable. The transferee judge in MDLs should have the same responsibility because MDLs are quasi class actions since their purpose and function is the same as the traditional class action namely efficiency and coordination before a single court. Furthermore, many MDLs contain multiple class actions along with the individual claims and it is not unusual to utilize the settlement class vehicle provided by Rule 23(e) to resolve the entire Thus Rule 23 is often an integral part of the MDL process.

End Excerpt

 

Has Judge Fallon Became to Chummy with Xarelto Leadership?

Just out of curiosity I have submitted a Form A0 10A to the Judicial Committee on Financial Disclosures, requesting Judge Fallon’s financial disclosures for 2013-2018. I already have copies of his disclosures through 2012 and His Honor discloses that his travel and other expenses are paid by third parties when he attended conferences 2012 and prior. I am curious to find out if MTMP paid Judge Fallon’s expenses when he attended MTMP conferences over the past few years. Paying for trips to lavish resorts in sin city for a Federal Judge before whom a firm currently has matters subject to litigation, is something I find worth exploring.

 

Required Reading for those wanting to improve their knowledge of all things MDL settlement.

Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation

But this book, it may shock even the most cynical!

https://www.amazon.com/Mass-Tort-Deals-Bargaining-Multidistrict-ebook/dp/B07S7DMN7Z

By: Elizabeth Chamblee Burch

Elizabeth Chamblee Burch is the Fuller E. Callaway Chair of Law at the University of Georgia. Her teaching and research interests include mass torts, class actions, and civil procedure. She has been a Visiting Professor at Harvard Law School.

Other worthwhile reading authored by Professor Burch:

Monopolies in Multidistrict Litigation

https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2113&context=fac_artchop

Repeat Players in Multidistrict Litigation

https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4737&context=clr

DISAGGREGATING

https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=6002&context=law_lawreview

Judging Multidistrict Litigation 

https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1993&context=fac_artchop

Morphing Case Boundaries in Multidistrict Litigation Settlements

By: Margaret S. Thomas

http://law.emory.edu/elj/_documents/volumes/63/6/responses/thomas.pdf

About Professor Thomas: https://www.law.lsu.edu/directory/profiles/margaret-s-thomas/

 

Once Size Doesn’t Fit All: Multidistrict Litigation, Due Process and the Dangers of Procedural Collectivism

http://www.bu.edu/bulawreview/files/2015/02/REDISH.pdf

By: MARTIN H. REDISH & JULIE M. KARABA

Martin H. Redish is the Louis and Harriet Ancel Professor of Law and Public Policy at the Northwestern University Pritzker School of Law. Redish has written 19 books and over a hundred law review articles in the areas of civil procedure and constitutional law.

About Professor Redish: http://www.law.northwestern.edu/faculty/profiles/MartinRedish/

Julie Karaba (Siegal is) currently a Clerk for Chief Justice John Roberts, United States Supreme Court.

https://www.sesp.northwestern.edu/news-center/news/2018/03/sesp-alumna-to-clerk-for-chief-justice-of-the-united-states-john-g.-roberts,-jr..html

 

Judicial Review of Private Mass Tort Settlements

By: Jeremy T. Grabill

https://scholarship.shu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1418&context=shlr

About Jeremy Grabill: https://www.phelps.com/jeremy-grabill

TAKING A SECOND LOOK AT MDL PRODUCT LIABILITY SETTLEMENTS: SOMEBODY NEEDS TO DO IT

https://kuscholarworks.ku.edu/bitstream/handle/1808/25557/Mueller_FINAL.pdf;jsessionid=DFE28872C148C01DAF73FED1CD91E292?sequence=1

By: Christopher B. Mueller

About Professor Mueller: https://lawweb.colorado.edu/profiles/profile.jsp?id=38

 

DUBIOUS DOCTRINES: THE QUASI-CLASS Action

https://scholarship.law.uc.edu/cgi/viewcontent.cgi?article=1095&context=uclr

By: Linda S. Mullenix

 

AGGREGATE LITIGATION AND THE DEATH OF DEMOCRATIC DISPUTE RESOLUTION

https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1063&context=nulr

Also by: Linda S. Mullenix

About Professor Mullenix: https://law.utexas.edu/faculty/linda-s-mullenix

Books by Professor Mullenix: https://www.amazon.com/Linda-S.-Mullenix/e/B001HML766

Managing Related Proposed Class Actions in Multidistrict Litigation

https://www.fjc.gov/sites/default/files/materials/21/Managing_Related_Proposed_Class_Actions_in_Multidistrict_Litigation.pdf

By: Catherine R. Borden

Government of the United States of America – Federal Judicial Center

GLOBAL SETTLEMENTS IN NON-CLASS MDL MASS TORTS

https://www.fjc.gov/sites/default/files/materials/21/Managing_Related_Proposed_Class_Actions_in_Multidistrict_Litigation.pdf

 

https://law.lclark.edu/live/files/25156-saackreadyforwebsitepdf

By: Amy L. Saack

About Amy Sacck: http://www.davisrothwell.com/attorney/amy-saack/

 

 

STANDARDS AND BEST PRACTICES FOR LARGE AND MASS-TORT MDLS

BOLCH JUDICIAL INSTITUTE, DUKE LAW SCHOOL

https://judicialstudies.duke.edu/wp-content/uploads/2018/10/standards_and_best_practices_for_large_and_mass-tort_mdls-Bolch-Judicial.pdf+

 

Disclaimer: The author of this article, John Ray, is not an attorney. Nothing in this article should be considered legal advice. The opinions expressed in this article are those of John Ray. Publication of this article by any third party should not be considered endorsement of nor agreement with the opinions expressed by the author.

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