In April and May 2016, a Missouri court awarded $72 million and $55 million, respectively, for claims against Johnson & Johnson for ovarian cancer linked to its talcum powder products. At that time, over 100 other cases were pending in Missouri, along with a growing number of cases in other states. The New Jersey Supreme Court had already ruled that the cases should be consolidated in a Multicounty Litigation (MCL), under Judge Nelson C. Johnson. However, unlike the judge in Missouri, who sent the cases to the jury, Judge Johnson disqualified the same expert witnesses used in those winning cases, ruling that, although the experts were “eminently qualified” to give testimony, the evidence was not grounded in “objective science.”
On September 2, 2016, New Jersey Superior Court Judge Nelson Johnson issued an Order and Opinion barring Plaintiffs’ experts in the ongoing litigation involving claims against Johnson & Johnson, alleging ovarian cancer caused by the drug maker’s talc products. For those that follow Mass Tort litigation in New Jersey, that decision was significant, but not particularly surprising.
The 5th District court in Texas recently denied a petition by defendants, Johnson & Johnson and DePuy Orthopedics, Inc., to grant an expedited appeal and to halt the next round of bellwether trials in the Pinnacle multidistrict litigation (MDL), which are currently scheduled to begin in early September 2016. The defendants filed the petition after losing the last bellwether trial earlier this year and getting hit with a jury award of $498 million dollars for five plaintiffs, who were injured from their metal-on-metal Pinnacle implants. The award was later reduced to $150 million dollars to meet the punitive damage caps in Texas.
On August 17, 2015, the United States Judicial Panel on Multidistrict Litigation (“JPML”) consolidated the Bard IVC lawsuits, as part of a Multidistrict Litigation (“MDL”), in the United States District Court for the District of Arizona. Case Management Plans and Case Management Orders for this MDL are described below.
On October 30, 2015, the MDL court issued Case Management Order #1, appointing leadership council, including Lead/Liaison and Steering Committee, and designating their duties and responsibilities for Case Management. According to the Order, the “Lead/Liaison will be (a) the only attorneys permitted to file in the Master Docket as to all actions, and (b) the only attorneys receiving Notices of Electronic Filing for pleadings and orders filed in the Master Docket for all actions.“
Over the course of many months, counsel for Plaintiffs and Defendants worked tirelessly to identify 20 cases to be selected for the Xarelto bellwether pool. Each side was permitted to choose 10 cases for the pool, while the Court added another 20 cases that were randomly selected based on certain eligibility requirements. (See December 17, 2015, Case Management Order for eligibility requirements)
Courts often use the bellwether approach when a large number of plaintiffs are pursuing the same general theory of liability. Otherwise, it would be impossible for the various courts to handle the massive caseload. In essence, the bellwether cases act as a representative for the remaining cases in hopes of eventually reaching a global settlement.
On October 15, 2014, the United States Judicial Panel on Multidistrict Litigation (“JPML”) designated the Cook IVC Multidistrict Litigation (“MDL”) in the United States District Court for the Southern District of Indiana. That Court has issued multiple Case Management Plans and Case Management Orders to guide and control the MDL.
On November 25, 2014, the MDL Court issued a comprehensive Case Management Plan, which designated Plaintiffs’ leadership structure (including lead counsel, liaison counsel, Plaintiffs’ Executive Committee, and Plaintiffs’ Steering Committee) and Defendants’ counsel. The MDL Court further set forth a description of the claims and defenses at issue and procedures for: pretrial pleadings and disclosures, general case discovery, bellwether selection criteria, case-specific discovery, motion practice and trial. Shortly thereafter, a form of Master Consolidated Complaint and a form of Short-Form Complaint were agreed upon and issued.
Xarelto (rivaroxaban) is a blood thinner that was approved by the U.S. Food & Drug Administration (FDA) in July 2011 to prevent strokes in patients who received hip and knee replacements. In November 2011, the approval was expanded to any patients with atrial fibrillation (irregular heartbeat). Xarelto has been widely prescribed, with millions of people taking the medication since it entered the market.
The number of lawsuits alleging injuries associated with ingestion of Xarelto continues to grow in the United States. Many of the pending lawsuits are centralized in federal court before the Honorable Eldon E. Fallon, in the Eastern District of Louisiana (“EDLA”), as part of MDL 2592. As we have previously reported, Judge Fallon has entered a series of Case Management Orders that continue to maximize the efficient management of the litigation.
On November 20, 2015, the EDLA issued Case Management Order #3, setting forth the general criteria for selecting the 40 discovery pool plaintiffs. These plaintiffs are jointly selected by the plaintiffs and defendants’ attorneys, for purposes of trial preparation.
On December 17, 2015, the EDLA issue Case Management Order #4, which provided more detailed instruction on the selection of the 40 discovery pool plaintiffs. The Order provides for
- The selection of discovery pool plaintiffs;
- The eligibility criteria of discovery pool plaintiffs; and,
- The categories of discovery pool plaintiffs.
For example, to be eligible for the discovery pool, a plaintiff must satisfy the criteria in one of the following categories: a) plaintiff, between the ages of 50 and 90, must have taken Xarelto to reduce the risk of stroke and systemic embolism due to nonvalvular atrial fibrillation and allege a gastrointestinal bleed or death; or b) plaintiff, between the ages of 40 and 80, must have taken Xarelto to treat deep vein thrombosis or pulmonary embolism and allege a gastrointestinal bleed or death; or c) plaintiff, between the ages of 50 and 90, must have taken Xarelto to reduce the risk of stroke and systemic embolism due to nonvalvular atrial fibrillation and allege rectal bleeding or death; or d) plaintiff, between the ages of 40 and 80, must have taken Xarelto to treat deep vein thrombosis or pulmonary embolism and allege rectal bleeding or death; or e) plaintiff, between the ages of 50 and 90, must have taken Xarelto to reduce the risk of stroke and systemic embolism due to nonvalvular atrial fibrillation and allege a brain bleed/hemorrhagic stroke or death; or f) plaintiff, between the ages of 40 and 80, must have taken Xarelto to treat deep vein thrombosis or pulmonary embolism and allege a brain bleed/hemorrhagic stroke or death.
The attorneys at Stark & Stark continue to pursue all legal redress available in the federal action, as well as state actions in Pennsylvania and New Jersey, for the benefit of its clients that have suffered injuries resulting from their use of Xarelto.
If you feel you have experienced any side-effects from taking Xarelto, you can contact Stark & Stark and speak to one of the Mass Tort/Pharmaceutical Litigation attorneys, free of charge, who can help assess any claims that you might have against the manufacturers of Xarelto.
Stark & Stark attorneys Martin P. Schrama and Stefanie Colella-Walsh, members of the Litigation and Mass Torts Groups, co-authored the article Monitoring Medical Surveillance Claims in New Jersey, which was published in the New Jersey Law Journal on December 9, 2015.
The article better explains the concept of medical monitoring, which is sometimes better known as “medical surveillance.” This theory is that plaintiffs who had been exposed to harmful chemicals but had yet to develop any bodily injuries could benefit from a program of specialized medical examinations. With that kind of program in place, patients would theoretically receive the earliest possible diagnosis of their chemically induced illness, which in turn would improve their prospects for treating, curing, and prolonging their lifespan.
New Jersey was one of the first states to identify this concept in 1987, when the New Jersey Supreme Court declined to “recognize increased risk of harm, absent bodily injury, as a tenable cause of action,” but did introduce “the independent claim of medical monitoring for plaintiffs who had not yet exhibited compensable bodily injuries was firmly established and defined.”
Additionally, in order for any plaintiffs to make a case for medical monitoring, they must “essentially demonstrate, through reliable expert testimony, significant and extensive exposure to chemicals, the toxicity of the chemicals, the serious diseases for which the plaintiff is at risk, the relative increase in the chance of the onset of those diseases in the exposed plaintiff, and the value of early diagnosis through medical monitoring.”
To read the full article, please click here.
The United States Judicial Panel on Multi-District Litigation (JPML) recently assembled to determine whether the cases known as In Re: Zofran (ondansetron) Products Liability Litigation should be given Multi-District Litigation (MDL) treatment, and if so, where the litigation should be consolidated. Granting MDL treatment consolidates all federal lawsuits filed across the United States into one centralized district. This consolidation streamlines the pretrial discovery process, allowing the parties to avoid duplicative discovery and inconsistent rulings from different judges.
Plaintiffs in the Zofran litigation allege that GlaxoSmithKline (GSK), the manufacturer of Zofran, fraudulently misrepresented the safety of its anti-nausea drug for pregnant women to prescribing doctors, resulting in unsuspecting pregnant women ingesting the drug and unknowingly harming their unborn babies. The most common birth defects include cleft palate, spina bifida and heart defects. It is further alleged that GSK marketed Zofran to pregnant women without FDA approval, as the FDA only approved the drug to treat post-operative surgery patients and certain patients undergoing cancer treatments.
On October 13, 2015, the JMPL agreed with the parties that the cases should be consolidated for discovery purposes and ordered all federal cases to be transferred to the District of Massachusetts before US District Judge F. Dennis Saylor. There are currently about 60 cases before Judge Saylor, but with the establishment of MDL No. 2657, additional cases are expected to be filed shortly.
Anyone affected should seek legal counsel immediately.
Since the United States Judicial Panel on Multidistrict Litigation (“JPML”) designated the Multidistrict Litigation (“MDL”) on December 17, 2014, the United States District Court for the Eastern District of Louisiana (“EDLA”) has issued numerous Pretrial Orders and Case Management Orders to guide and control the MDL.
On December 17, 2014, the EDLA issued Pretrial Order #1, which set the initial pretrial conference before Judge Eldon E. Fallon, U.S.D.J., and solicited nominations for Liaison Counsel and Plaintiffs’ Steering Committee (“PSC”).
On January 16, 2015, the EDLA issued Pretrial Orders #2 and #3, which appointed Gerald E. Meunier and Leonard A. Davis as Co-Plaintiffs’ Liaison Counsel, and James B. Irwin as Defendants’ Liaison Counsel.