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.

MO Supreme Court Upholds $38 Million Verdict in Depakote Birth Defect Trial

Internally, Abbott referring to Depakote as a “dirty drug.”

The Supreme Court of Missouri has upheld a $38 million award to a Minnesota woman who was born with spina bifida and other birth defects after her mother took Depakote while she was pregnant.

Abbot Laboratories makes Depakote, an anti-epilepsy drug. Plaintiff Maddison Schmidt proved that the label for Depakote, which company documents referred to as a “dirty drug,” failed to warn adequately of serious dangers of birth defects.

The Supreme Court said that “there was evidence Abbott was aware there were studies indicating Depakote was much more dangerous in terms of birth defects than its label suggested. In addition, there was evidence presented that, despite this knowledge, Abbott conducted no independent research or studies of its own to evaluate Depakote’s risks for birth defects.

Marketing a defective drug

There was evidence showing Abbott instead spent $50 million to $100 million per year marketing Depakote, sought to “squeeze every dollar and every [prescription for Depakote] out of the market.”

The Supreme Court shot down Abbott’s argument that it was prejudiced because the trial was in the City of St. Louis Circuit Court. Abbott claimed without evidence the court was biased.

Depakote’s label stated: there was clinical literature indicating “the use of antiepileptic drugs during pregnancy results in an increased incidence of birth defects;” Depakote had “a possible similar association” as other antiepileptic drugs to birth defects; and the Centers for Disease Control estimated the risk of pregnant women exposed to Depakote having children with spina bifida was only 1 or 2 percent.

Schmidt, however, presented evidence Abbott was aware of multiple studies concluding: (1) Depakote posed a considerably higher risk of overall birth defects than other antiepileptic drugs, and should be avoided by women of childbearing potential unless all other alternatives had been tried and failed; (2) the overall risk of birth defects was 10 percent or even greater; (3) the risk of spina bifida was significantly higher than 1 or 2 percent; and (4) the risk of spina bifida amounted to a twentyfold increased risk compared with the background rate in the general population.

 

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.

California Jury Awards $417 Million Against J&J in Talc Cancer Trial

A jury in Los Angeles today awarded $417 million to a 63-year-old woman who developed ovarian cancer after using the Johnson & Johnson’s talc-based products like Johnson’s Baby Powder for feminine hygiene.

The case is Eva Echeverria v. Johnson & Johnson, No. BC628228 in Los Angeles County Superior Court. The verdict included $70 million in compensatory damages and $347 million in punitive damages.

The jury held J&J liable for failing to warn Echeverria about the cancer risks of using its talcum products, which she started using when was 11. She was diagnosed with ovarian cancer in 2007.

In his opening statement, Escheverria’s attorney Mark Robinson asserted that Johnson & Johnson had known of the alleged link between talc and ovarian cancer for decades, but decided to withhold warnings from the public to protect its image.

During the trial, Jack Siemiatycki, an epidemiologist with the University of Montreal and McGill University, testified about his contributions to the 2006 monograph published by the International Agency for Research on Cancer, which said talc is a possible human carcinogen. He also testified that his stance has changed since then, and that he now thinks that it is more likely than not that talc can cause ovarian cancer.

4 record-setting verdicts

Johnson & Johnson is facing 4,800 talcum powder claims in California, Missouri, New Jersey and Delaware state courts, as well as New Jersey federal court.  Juries have found the company liable four times in record-setting verdicts:

  • In May 2017, a jury in St. Louis state court delivered a bombshell $110,000,000 verdict for the plaintiff, Lois Slemp, age 62, of Virginia. She used J&J’s baby power and Shower to Shower talc products for more than 40 years before she was diagnosed with ovarian cancer in 2012.
  • On October 27, 2016, a jury awarded more than $70 million in damages to Deborah Giannecchini, 62, of Modesto, CA, on her claim that her use of baby powder and other Johnson & Johnson talc products over 40 years caused her ovarian cancer. She was diagnosed with stage 4 ovarian cancer in 2012 and talc was found in her ovaries.
  • In February 2016 a 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.
  • In May 2016, another jury in the same courthouse awarded $55 million to Gloria Ristesund of Sioux Falls, SD. She was diagnosed with cancer in 2011 after using J&J’s talc-based feminine hygiene products for almost 40 years.

 

 

Defense Wins 3rd Xarelto Mass Tort Bellwether in a Row

XareltoA jury in federal court in Missouri returned the third verdict in favor of Janssen Pharmaceuticals and Bayer in a bellwether trial over the blood-thinner Xarelto. The companies are facing 18,000 similar lawsuits charging that the drug causes uncontrollable bleeding.

Juries in the multidistrict litigation docket, MDL 2592 before U.S. District Judge Eldon E. Fallon in the Eastern District of Lousiana, also returned defense verdicts on May 3 and June 12 this year.

The plaintiff Dora Mingo of Summit, Mississippi, alleged under Miss. Code Ann. Sec. 11-1-63 that Xarelto was defectively designed because there is no antidote and that it is unreasonably dangerous because of an inadequate warning to physicians about uncontrollable bleeding.

Mingo, a 69-year-old retired schoolteacher, suffered acute gastrointestinal bleeding and severe blood loss after taking Xarelto for a month in 2015 to prevent blood clotting after surgery. Plaintiff attorney Andy Birchfield of Beasley, Allen, Crow, Methvin, Portis & Miles of Montgomery, AL, said the companies should have instructed doctors to conduct a simple Prothrombin Time (PT) blood test, to assess a patient’s risk of bleeding.

As in the previous trials, the jury returned the verdict after a few hours of deliberation.

Xarelto is Bayer’s best-selling drug and in 2016 it generated $3.41 billion in revenues to the German company. Johnson & Johnson, the parent company of Janssen, reported $2.2 billion in revenues from Xarelto.

The FDA approved the drug in 2011 for patients with a heart rhythm disorder known as atrial fibrillation and to treat the risk of deep vein thrombosis and pulmonary embolisms.

Representing Janssen was Richard Sarver of Barrasso Usdin Kupperman Freeman & Sarver in New Orleans, who was involved in the first Xarelto trial. Bayer was represented by Lyn Pruitt of Mitchell Williams in Little Rock, Arkansas, and Walter T. Johnson at Watkins & Eager in Jackson, Mississippi.

Nexium, Priosec and PrevAcid Mass Tort Litigation Consolidated in New Jersey

The US Judicial Panel on Multidistrict Litigation consolidated 161 proton-pump inhibitor (PPI) products liability lawsuits into new federal MDL No. 2789 in federal court in New Jersey.

It was the second, successful try by the plaintiffs. In January, the Panel denied a motion that also sought centralization of the claims. At the time, it cited the small number of filings (only 15), the differing heartburn drugs involved and the need to protect trade secrets among the various defendants.

Since then, the size of the litigation has grown. Further, two defendants, AstraZeneca and Pfizer, had also changed course, and now supported consolidation. There are 34 tag-along actions in addition to the 161 cases consolidated by the Panel.

US District Judge Claire C. Cecchi, who is already managing PPI cases in the district, will oversee the MDL litigation. Heartburn drugs in the MDL:

  • Nexium
  • Nexium 24HR
  • Prilosec
  • Prilosec OTC
  • PrevAcid
  • PrevAcid 24HR
  • Dexilant
  • Protonix

Causes kidney damage

The defendants are AstraZeneca Pharmaceuticals LP, Pfizer, Inc., Wyeth Pharmaceuticals Inc., Wyeth LLC, Wyeth-Ayerst Laboratories, Procter & Gamble Company, Takeda, Novartis Consumer Health, Inc., Novartis Pharmaceuticals Corporation, Novartis Vaccines and Diagnostics, Inc. and Novartis Institute for Biomedical Research Inc.

In the 161 personal injury and wrongful death actions, plaintiffs allege that as a result of taking one or more proton-pump inhibitors (PPIs), they or their decedents suffered kidney injury (e.g., chronic kidney disease (CKD), acute interstitial nephritis, end stage renal disease, or kidney failure). Plaintiffs allege that defendants failed to adequately warn of the negative effects and risks associated with PPIs.

“Although several of the grounds on which we denied centralization in Proton-Pump I remain largely valid, we find that the significantly larger number 6 of involved actions, districts, and counsel, the concomitant increase in burden on party and judicial resources, and the opportunity for federal-state coordination, coupled with most defendants’ change in position to now support centralization, tip the balance in favor of creating an MDL,” the Panel said. “Centralization will facilitate a uniform and efficient pretrial approach to this litigation, eliminate duplicative discovery, prevent inconsistent rulings on Daubert and other pretrial issues, and conserve the resources of the parties, their counsel, and the judiciary,” the Panel said.

New On-Demand Webinar: Summer 2017 Mass Torts Update

Overview:

  • US Supreme Court decision limiting personal jurisdiction for mass torts in state courts. SCOTUS kicks out 592 non-resident plaintiffs.
  • The best path forward for mass tort plaintiffs.
  • 3 Mass torts heading for settlement:
    • Taxotere: 1,272 cases filed before Chief US District Court Judge Kurt D. Engelhardt, in the Eastern District of Louisiana, MDL 2740.
    • IVC filter: 2,342 cases before Chief US District Court Judge Richard L. Young, in the Southern District of Indiana, MDL 2570.
    • Fluoroquinolones (FLQs): 752 cases before Chief US District Court Judge John R. Tunheim in the District of Minnesota, MDL 2642.
  • Case to watch – Xarelto: 17,593 cases filed before US District Judge Eldon E. Fallon, Eastern District of Louisiana, MDL 2592, In re: Xarelto (Rivaroxaban) Products Liability Litigation
  • Using the 5 W’s to generate new business online
    Watch 20now
  • Watch now. It’s free. No registration required.

$300 Million Settlement for Benicar Blood-Pressure Drug

Daiichi Sankyo Company announced a $300 million settlement related to its blood pressure drug Benicar. Despite this, the company admitted no liability for any wrongdoing.

Patients who have been injured by Benicar can take part in the $300 million settlement if they have a retainer in place with a qualified Benicar attorney by August 23, 2017.


See our earlier report Picking 6 Winners in Mass Torts Litigation.


A total of 1,942 lawsuits have been filed in MDL 2606, IN RE: Benicar (Olmesartan) Products Liability Litigation, before US District Judge Robert B. Kugler in New Jersey as of July 15.

Benicar, Benicar HCT, Azor, and Tribenzor are angiotensin II receptor blockers that lower blood pressure associated with hypertension. It is also linked to severe gastrointestinal injuries, including:

  • Sprue-like enteropathy, which has symptoms similar to those of celiac disease.
  • Lymphocytic colitis, microscopic colitis, and collagenous colitis.
  • Patients may suffer from chronic diarrhea, vomiting, nausea, abdominal pain, kidney failure, and significant weight loss.

Starting in January 2014, plaintiffs began filing Benicar-related injury lawsuits, and in March 2015, the Judicial Panel on Multidistrict Litigation created the Benicar MDL. On August 1, 2017, Judge Kugler approved the $300 million settlement.

Patients who experienced Benicar-related side effects can still take part in the settlement, but only if they are represented by a Benicar attorney by the August 23, 2017, deadline.

According to the master settlement agreement, the fund will start to be paid out when 95 percent of all eligible litigants and claimants opt into the settlement under various conditions. Once the thresholds are met, claimants who meet specified criteria will receive compensation from the settlement fund.