MO Appeals Court Vacates $72 Million Talc Cancer Verdict for Non-Resident Plaintiff

A family photo of Jacqueline Fox and her son, Marvin Salter.

A family photo of Jacqueline Fox and her son, Marvin Salter.

The Missouri Court of Appeals vacated a $72 million verdict against Johnson & Johnson, ruling that the trial court could not take jurisdiction over the company because its activities in Missouri did not give rise to the claims of the non-residents who bought and used its products elsewhere.

In February 2016, a St. Louis Circuit Court jury awarded $72 million to the family of Jacqueline Fox of Birmingham, AL, who used Johnson’s baby powder for 35 years. She was diagnosed with ovarian cancer in 2013 and died last year.

Fox was one of 63 out-of-state plaintiffs who sued J&J under Missouri Rule 52.05, which allows non-residents to join resident plaintiffs when all their claims arise out of the same transactions or occurrences.

J&J is incorporated and headquartered in New Jersey. Missouri courts historically have exercised personal jurisdiction over defendants as to joined non-residents’ claims so long as jurisdiction exists as to the residents’ claims.

Consistent with this practice, the trial court determined that specific personal jurisdiction existed, reasoning that J&J’s alleged conduct satisfied Missouri’s long-arm statute (§506.500) and minimum contacts.

Reversal due to Bristol-Myers Ruling

The appeals court reversed and vacated the verdict based on the 2017 U.S. Supreme Court decision in Bristol-Myers Squibb Co. v. Superior Court (BMS) that a non-resident plaintiff must establish an independent basis for specific personal jurisdiction over the defendant in the state.

In BMS, a group of more than 600 plaintiffs, mostly non-residents, sued BMS in
California for injuries allegedly caused by the drug Plavix. The California courts had
rejected BMS’s challenge to personal jurisdiction on the non-residents’ claims, reasoning, similar to the Missouri trial court, that BMS’s extensive contacts in the state supported jurisdiction, particularly because the non-residents’ claims were similar to residents’ claims.

The U.S. Supreme Court reversed, holding that specific personal jurisdiction requires a connection between the forum state and the specific claims at issue. “When there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the state.” 137 S.Ct. at 1781.

The Missouri appeals court said, “The fact that resident plaintiffs sustained similar injuries does not support specific jurisdiction as to non-resident claims.”

The ruling could overturn three other recent St. Louis jury verdicts of more than $200 million combined against the New Jersey-based health care giant, which has also appealed the cases.

The plaintiffs in the talc cases allege strict liability for failure to warn, negligence, breach of express and implied warranty, civil conspiracy, concert of action, and negligent representation, alleging that Johnson & Johnson marketed and sold its talc products knowing that they increased consumers’ risk of ovarian cancer.

 

Mass Tort Judge Signals Settlement in Taxotere Hair Loss MDL

Telegraphing that there will be a settlement in Taxotere chemo drug products liability litigation, the judge in the mass tort docket ordered plaintiff attorneys to file information about all pending and anticipated claims “so that “claimants may have the opportunity to participate in any eventual resolution process.”

US District Judge Kurt D. Engelhardt directed Pretrial Order No. 60 to the Plaintiff’s Settlement Committee that he appointed shortly after the multidistrict litigation docket was created last October 2016.

To date plaintiffs have filed 1,624 lawsuits in MDL 2740, IN RE: Taxotere (Docetaxel) Products Liability Litigation, in the Eastern District of Louisiana. Hundreds of additional cases may exist.

Total, permanent hair loss

Taxotere is manufactured by Sanofi. However, half of the cases in the MDL involve generic and quasi-generic manufacturers, whose products obtained FDA approval under 21 USC Sec. 505(b)(2) and not through the more traditional generic approval under 21 USC Sec. 505(j).

The plaintiffs charge that they experienced total, permanent hair loss following treatment with the chemotherapy drug. While Taxotere was first approved to treat breast cancer in 1996, it wasn’t until December 2015 that mention of permanent alopecia (hair loss) was included on the drug’s U.S. label. t is true that alopecia is a common side effect of chemotherapy.

Temporary alopecia is a common side effect of chemotherapy, but permanent, disfiguring hair loss is not.

Attorneys have until October 16 to file spreadsheets that include the plaintiffs’:

  • Name and date of birth.
  • City and state where docetaxel was ingested.
  • Facility where docetaxel was administered.
  • Start and stop date of docetaxel use.
  • Name of manufacturer.
  • Filing state, jurisdiction and case number.

The information must be updated quarterly to BrownGreer’s MDL Centrality program, which is a custom-built platform designed specifically to streamline the exchange of information in MDLs and other mass tort cases. 

The Plaintiff’s Settlement Committee will use the data to analyze the strength of the cases in furtherance of a settlement. “Should this litigation advance to the point where a resolution program is underway, the Court may then address methods and vehicles for Responsible Attorneys and Covered Individuals to provide similar information to the Defendants for their review, analysis and verification,” Judge Engelhardt says.

Jury Orders AbbVie to Pay $140M in Testosterone Bellwether Trial

A federal jury in Chicago awarded more than $140 million to a man who claimed that AbbVie Inc. misrepresented the risks of its testosterone replacement drug AndroGel, causing him to suffer a heart attack

Jeffrey Konrad, 56, of Tennessee, had used AndroGel for two months in 2010 when he had a heart attack.

The jury held AbbVie liable for negligence, intentional misrepresentation and misrepresentation by concealment, and awarded $140 million in punitive damages and $140,000 in compensatory damages.

The case is Jeffrey Konrad, et al. v. AbbVie, Inc., et al., No. 15-966, N.D. Ill. Konrad’s attorneys are Christopher Seeger and David Buchanan of Seeger Weiss in New York and Matthew Teague of Beasley Allen Crow Methvin Portis & Miles in Montgomery, Ala.

In July 2017, a federal jury in another bellwether trial ordered AbbVie Inc. to pay $150 million in punitive damages to Jesse Mitchell of Oregon after finding the company liable for fraudulent misrepresentations about the safety of AndroGel.

Plaintiffs who charge that AndroGel can cause heart attacks, strokes and blood clots have filed 6,038 lawsuits in Testosterone Replacement Therapy Products Liability Litigation in MDL 2545, consolidated before US District Judge Matthew F. Kennelly in the Northern District of Illinois.

The FDA required AbbVie to add a warning about cardiovascular risk to AndroGel’s label in May 2015.

Canceling Defense Verdict, Judge Orders New Trial in DePuy Hip Implant Case

In a major success for plaintiffs, a Chicago judge granted a new trial in the case of a woman who had a defective DePuy Orthopaedics ASR XL hip implant replaced. This reversed a 2013 defense verdict.

Cook County Circuit Judge Deborah Dooling ruled that plaintiff Carol Strum was entitled to a new trial because testimony by one of her expert witnesses was wrongly excluded. Strum had the device implanted in 2008 because of arthritis in her left hip. In 2010 DePuy recalled the ASR artificial hip. After suffering pain, Strum had replacement surgery in 2011.

“The court in its pretrial ruling defined the relevant scientific community as the metrology and tribology scientists; however, that ruling was incorrect because that community designation was too restrictive,” Dooling wrote. “Here, the relevant scientific community includes all the scientists, experts, practitioners and surgeons in both the scientific and medical field associated with the implant industry.”

Strum alleged that the ASR’s defective metal-on-metal design caused the artificial hip to shed large amounts of metal debris, resulting in its premature failure.

9,000 hip replacement lawsuits

Johnson & Johnson and DePuy Orthopaedics have been named defendants in more than 9,000 hip replacement lawsuits involving an all-metal Pinnacle hip that utilizes the Ultamet liner.

Plaintiffs charge that this configuration is prone to wear, which can cause the device to shed dangerous amounts of toxic metal debris into the tissue surrounding the joint, as well as the bloodstream. This can lead to metallosis, pseudotumor formation, adverse local tissue reactions, and other debilitating complications that result in premature failure of the device.

They further allege the all-metal Pinnacle suffers from the same design flaws that prompted the 2010 recall of DePuy’s metal-on-metal ASR hip implants, and question why the Pinnacle implants were not subject to a similar recall.

In separate litigation, there are 1,641 cases against DePuy Orthopaedics over its ASR Hip Implant in Ohio federal court before US District Judge Jeffrey J. Helmick in MDL 2197.

DePuy is also facing 9,155 cases in Texas federal court involving its Pinnacle Hip Implant in MDL 2244 before US District Judge James Edgar Kinkeade in MDL 2244, IN RE: DePuy Orthopaedics, Inc., Products Liability Litigation.

The federal multidistrict litigation underway in Texas concluded its first DePuy Pinnacle bellwether trial in October 2014, with a verdict for the defense.

In March 2016, the litigation’s second bellwether trial concluded with a verdict in favor of five Pinnacle plaintiffs and a total award of $500 million. However, damages were reduced to $151 million to comply with Texas law governing punitive damages.

The litigation’s third bellwether trial concluded last December when $1 billion was awarded to six Pinnacle hip recipients. However, that verdict was reduced to $543 million.

In 2013, DuPuy announced a $2.5 billion settlement resolving about 8,000 cases of patients who had revision surgeries as of Aug. 21, 2013. It does not cover the Strum case, because it went to trial before the settlement was announced.

45 Government Plaintiffs Seek Mass Tort Docket for Cases Against Opioid Manufacturers

Plaintiffs including 45 cities, counties and government agencies that are suing the makers of opioid painkiller filed a motion with the Judicial Panel on Mulitidistrict Litigation seeking to consolidate lawsuits nationwide in a central multidistrict litigation docket in Ohio or Illinois.

Presently, there are at least 66 federal actions filed for the local governments in 11 different federal district courts alleging similar wrongful conduct on by McKesson Corporation, AmerisourceBergen Corporation, and Cardinal Health, Inc. for illegally distributing opiods and creating a nationwide epidemic.

90 people die each day from opioids

Also named as defendants are the opioid manufacturers Purdue, Teva and Cephalon, Janssen, Endo, Actavis, and Mallinckrodt.

Every day, more than 90 Americans die after overdosing on opioids, according to the National Institute on drug abuse. The most commonly abused drugs are hydrocodone (e.g., Vicodin), oxycodone (e.g., OxyContin and Percocet), oxymorphone (e.g., Opana), morphine (e.g., Kadian and Avinza), codeine, fentanyl, and others.

Attorney James C. Peterson of Hill, Peterson, Carper, Bee & Deitzler, PLLC, in Charleston, WV filed the motion seeking pre-trial proceedings before US District Judge Edmund A. Sargus, Jr. in the Southern District of Ohio or US District Judge Staci M. Yandle in the Southern District of Illinois.

The plaintiffs will prosecute civil claims under the Federal Racketeer Influenced and Corrupt Practices Act (“RICO”), 18 U.S.C. §§1961, and state corrupt or unfair trade practices laws, public nuisance and negligence laws.

They seek an injunction relief to prevent the further unlawful distribution of opioid drugs, as well as damages including costs to abate the public nuisance.

Cases brought by government entities against the opioid manufacturers are pending in federal courts in the Southern District of Ohio (14 cases), the Southern District of Illinois (3), the Eastern District of Kentucky (19), the Southern District of West Virginia (17), the Western District of Kentucky (5), the Northern District of Ohio (2), the Western District of Washington (2), the Northern District of Alabama (1), the Eastern District of California (1), the District of New Hampshire (1), and the Eastern District of Tennessee (1).

“Defendants were responsible for maintaining effective controls against diversion of their controlled substances, designing and operating a system to disclose suspicious orders of controlled substances, reporting suspicious orders of controlled substances to the DEA and halting those orders,” the motion says.

According to the motion, the opioid manufacturers and distributors deliberately ignored their duty under the Controlled Substances Act of 1970 to report and halt suspicious orders of opioids.

Further, it says the opioid manufacturers:

  • Had a lack of real-time monitoring and reporting, stripping the Drug Enforcement Agency of its ability to identify, investigate, and prevent the diversion of the highly addictive drugs, causing an epidemic of misuse and abuse of prescription opioids and a large number of opioid-related drug overdoses and deaths.
  • Launched a campaign to falsely deny the inherent danger of crippling addiction posed by the opioid prescription pills that they falsely marketed as allegedly safe for chronic pain.
  • Used front organizations and paid “key opinion leaders” to deceive prescribing doctors and government regulators.

PA Woman Recovers $57 Million Verdict in Ethicon Pelvic Mesh Case

“I had five children and that’s what weakened my pelvic floor muscles,” Ella tells CBS3’s Stephanie Stahl.

“I had five children and that’s what weakened my pelvic floor muscles,” Ebaugh told CBS TV.

In a record-setting verdict, a jury in Philadelphia awarded more than $57.1 million to a Manchester, PA, mother of five for injuries she suffered from two vaginal mesh devices manufactured by Ethicon, a Johnson & Johnson subsidiary.

Doctors implanted the devices into Ella Ebaugh in 2007 to treat her stress urinary incontinence, according to her attorney, Kila Baldwin of Kline & Specter in Philadelphia.

“My urethra is mangled and I will suffer for the rest of my life,” she told CBS 3. “I feel like I’m on fire you know down there.”

Baldwin represents Ebaugh and other women in Philadelphia lawsuits against Johnson & Johnson. “The company was reckless and the company totally ignored the real serious risk of permanently injuring women,” Baldwin said.

Incriminating company emails

The TVT and TVT-Secur mesh devices eroded into Ebaugh’s urethra, which required three separate surgeries to remove. Her injuries include extensive scarring to her urethra, intrinsic sphincter deficiency, chronic urinary tract infections, chronic pelvic pain and dyspareunia, or chronic pain during sex.

Baldwin told Law.com that J&J’s internal emails were particularly persuasive to jury members. “It showed there were many attempts to manipulate the literature … and they continued to sell them knowing this information,” she said. “They made the case almost indefensible.”

The case is the fifth successful pelvic mesh lawsuit filed in Philadelphia Court of Common Pleas, where more than 100 cases are pending in its pelvic mesh mass tort program. Ebaugh’s award is the largest of those five.

The award included $7.1 million in compensatory and $50 million punitive damages. Though Ebaugh has been unable to return to work because of her injuries, Baldwin said they did not seek economic damages.

Mass Torts: Study Doubts the Value of Abilify for Depression

In a report published by the Journal of the American Medical Association (JAMA), researchers at the Veterans Affairs found that the benefits of the antidepressant add-on drug Abilify were minor.

Meanwhile, the FDA has received 164 reports of pathological gambling caused by Abilify from November 2002 through January 2016.

Since October 2016, 234 mass tort lawsuits have been consolidated before Chief US District Judge M. Casey Rodgers in the Northern District of Florida, in MDL 2734, IN RE: Abilify (Aripiprazole) Products Liability Litigation. They charge that Bristol-Myers Squibb and Otsuka Pharmaceuticals Bristol-Myers Squibb knew about the side effect but failed to warn consumers, downplaying risks to protect billions in sales.

Question the use of Abilify

The researchers questioned the use of Abilify for depression: “Given the small effect size and adverse effects associated with aripiprazole, further analysis including cost-effectiveness is needed to understand the net utility of this approach.”

In a 12-week follow-up of a randomized clinical trial of 1,522 patients with major depressive disorder (85% men) unresponsive to previous antidepressant treatment, only 29% achieved remission after adding Abilify with their antidepressant.

It was not until the FDA ordered stronger labels in May 2016 that American patients and doctors were finally warned about uncontrollable urges to gamble, eat, shop, or have sex.

Europe required BMS and Otsuka to add a warning label about “pathological gambling” from Abilify in November 2012, as well as recommending caution in patients with a history of gambling addiction.

Abilify is one of the top-selling medications in the U.S., with sales of more than $6 billion per year. It is an antipsychotic drug that the FDA approved in 2002 for schizophrenia, bipolar disorder, and major depressive disorders. Today, Abilify is widely used “off-label” to treat irritability, aggression, and mood swings.

Philadelphia Jury Awards $57.1 Million in Ethicon Pelvic Mesh Verdict

Mesh manufacturer knowingly continued use of resin dangerous to human bodies.

A jury in Philadelphia awarded more than $57 million to a woman who was internally scarred and left incontinent by a defective Ethicon pelvic mesh implant made by Johnson & Johnson. The award, the largest so far in several recent mesh injury trials in the state, includes $50 million in punitive damages.

The jury found in favor of plaintiff Ella Ebaugh, determining that two of Ethicon’s mesh devices had caused internal mutilations permanently impairing her urinary system. The case is In Re: Pelvic Mesh Litigation, Case No. 140200829.

Attorneys in the case said the verdict sends a message to J&J and Ethicon about the impropriety of their conduct surrounding the design and marketing of the dangerous surgical mesh devices. Of the two mesh devices that were the subject of the lawsuit, one has been recalled but the other, Ethicon’s TVT product, remains on the market even as substantial numbers of mesh injury lawsuits continue to move through the courts.

29,905 federal lawsuits

In separate litigation, Ethicon faces 29,905 federal lawsuits consolidated before US District Judge Joseph R. Goodwin in MDL 2327, IN RE: Ethicon, Inc., Pelvic Repair System Products Liability Litigation.

The previous highest-result mesh injury case from the series ongoing in Pennsylvania was $20 million. Ethicon has stated it intends to appeal the jury’s decision in Ms. Ebaugh’s case.

The previous highest-result mesh injury case from the series ongoing in the Philadelphia  Court of Common Pleas was $20 million. Some 130 pelvic mesh lawsuits are pending there in a mass tort program. Ethicon has stated it intends to appeal the jury’s decision in Ms. Ebaugh’s case.

Ethicon and Johnson & Johnson have prevailed in a single Pennsylvania pelvic mesh trial.  Four Philadelphia juries have awarded Ethicon plaintiffs $12.5 million, $13.6 million, 17.5 million, and $20 million in damages.

Misleading Regulators, Monsanto Secretly Wrote Bogus Reports Calling Roundup Safe

When the Environmental Protection Agency declared that Roundup weed killer was safe for humans, it relied on scientific reports that were secretly ghostwritten by Monsanto employees, according to company emails.

The emails were released by plaintiff attorneys suing Monsanto on behalf of farmers who claim they got cancer of the lymph nodes from working with Roundup, which contains the herbicide glyphosate.

The bogus “reports” were designed to rebut The World Health Organization’s International Agency for Research on Cancer (IARC) finding in March 2015 that glyphosate is “probably carcinogenic to humans.”

Monsanto was also working with a corrupt EPA official, who bragged to Monsanto that he deserved a medal if he could kill an investigation of whether the company’s Roundup herbicide causes cancer.

A total of 220 mass tort lawsuits have been filed against Monsanto in Roundup Products Liability Litigation before US District Judge Vince Chhabria in MDL 2741 in the Northern District of California.

Dupe the scientific journal

Dozens of internal Monsanto emails, released on Aug. 1 by plaintiffs’ lawyers from Baum, Hedlund, Aristei & Goldman of Los Angeles, reveal how Monsanto worked with a consulting firm to dupe the scientific journal Critical Reviews in Toxicology to publish a supposedly “independent” review of Roundup’s effect on health. The review was published along with four subpapers in September 2016.

According to a Bloomberg report, the emails show that Monsanto’s chief of regulatory science, William Heydens, and other Monsanto scientists were heavily involved in reviewing and editing drafts submitted by the outside experts.

Other emails show that Monsanto’s lead toxicologist, Donna Farmer, who was a co-author of a 2011 study on glyphosate’s reproductive effects, made substantial changes and additions to the paper behind the scenes.

The paper’s Acknowledgment and Declaration of Interest falsely stated that Monsanto did not participate in editing the report, despite the editor’s insistence that the authors make clear how they were hired.

Jury Deliberations Underway in Pennsylvania’s 6th Transvaginal Mesh Trial

law news, legal news, verdict, settlement

Pelvic mesh has been found to cause serious and permanent internal damage, significant pain, urinary incontinence, and repeated cases of pelvic organ prolapse.

Jury deliberations are now underway in Philadelphia, Pennsylvania, where testimony has concluded in the state’s sixth trial involving a transvaginal mesh lawsuit filed against Johnson & Johnson and its Ethicon, Inc. subsidiary.

The case, which is among more than 130 pelvic mesh lawsuits pending in a mass tort program now underway in the Philadelphia Court of Common Pleas, was filed on behalf of a woman who says Ethicon’s TVT mesh devices mangled her urethra and left her to endure life-long incontinence.

Like others pursuing transvaginal mesh lawsuits against Ethicon and Johnson & Johnson, she claims that the implants were defectively designed and alleges that the companies failed to warn doctors and patients about their potential risks. (In Re: Pelvic Mesh Litigation, Case No. 140200829.)

“We look forward to the verdict, as it may provide some clues as to how other juries might decide similar cases involving TVT transvaginal mesh devices,” says Sandy A. Liebhard, a partner at Bernstein Liebhard LLP, a nationwide law firm representing victims of defective drugs and medical devices.

Ethicon Transvaginal Mesh Litigation

Ethicon and Johnson & Johnson have so far prevailed in just one Pennsylvania transvaginal mesh trial.  Four Philadelphia juries have awarded Ethicon plaintiffs $13.6 million, 17.5 million, and $20 million in damages.

Transvaginal mesh implants are approved for use in women who suffer from pelvic organ prolapse and stress urinary incontinence. In 2008, the U.S. Food & Drug Administration (FDA) warned the implants had been associated with at least 1,000 reports of serious injuries and complications over a three-year period. In July 2011, the agency reported that complications related to transvaginal prolapse repair had tripled since 2008 and reversed its stance that such complications were rare.

In 2016, the FDA finalized regulations that reclassified pelvic mesh indicated for transvaginal prolapse repair as Class III (high risk) medical devices. The agency also made the implants ineligible for its 510(k)-clearance program, which had previously allowed transvaginal mesh manufacturers to market the products without first conducting human clinical trials.

Johnson & Johnson and Ethicon are facing more than 55,000 transvaginal mesh lawsuits in courts nationwide. Women involved in this litigation are alleged to have suffered a wide range of painful complications, including the erosion of mesh into the vaginal wall, adhesions and scarring, chronic infections, permanent pain, and incontinence, following implantation of the companies’ products.