As of March 15, 2021, a report by the U.S. Judicial Panel on Multidistrict Litigation (JPML) said that it has 185 multidistrict litigation (MDL) dockets, representing 46 transferee districts and 153 transferee judges. There were 356,379 pending actions as of the report date.
In no particular order, the following provides a brief description of major MDL cases as well as litigation to watch as cases potentially culminate into MDL status.
Cases Already in MDL Status
When Bayer bought out Monsanto, the company didn’t know there were major lawsuits lurking ahead against Roundup, Monsanto’s ubiquitous glyphosate weed killer. The World Health Organization determined that Roundup and similar weed killers cause non-Hodgkin lymphoma. Roundup has had three trials so far. In each trial, the juries found that Monsanto spent years covering up the weed killer’s dangers and failed to warn users of the cancer risks. A fourth trial, Stephens v. Monsanto, began in August 2021 and is the first trial since 2019.
June 2020: Bayer agreed to a $10 billion settlement, one of the largest U.S. civil litigation settlements, and expects the settlement to resolve 75 percent of its Roundup litigation.
August 16, 2021: Bayer petitioned the U.S. Supreme Court to review its losses in the Roundup litigation. The petition argues that registration of Roundup as a pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) requires warnings on product labels that satisfy the defendants’ duty to warn users and also preempts state-law “failure to warn” claims.
In 2017, the JPML consolidated the cases against manufacturers of prescription opioids into MDL 2804. The JPML transferred the cases to the Northern District of Ohio and refers to MDL 2804 as the National Prescription Opiate Litigation.
The litigation now consists of 2,600 localities suing opioid manufacturers, distributors, insurance companies and retailers. The plaintiffs in MDL 2804 assert that these companies all used deceptive marketing tactics to promote treatments for opioid addiction.
2021 has been a busy year for settlement offers in opioid litigation:
February 2021: $641 million settlement between McKinsey consulting firm and attorneys general representing 48 states, the District of Columbia and five territories.
April 9, 2021: Judge Polster ordered five more pharmacy bellwether trials in MDL 2804 against big pharma chains like Purdue Pharma, AmerisourceBergen Drug Corporation and Cardinal Health.
June 26, 2021: Johnson & Johnson offered to settle with New York for $263 million. If New York signs into law an opioid settlement fund, the settlement offer includes an escalator clause of $30 million.
July 12, 2021: Walgreens, CVS, Rite Aid and Walmart offer to settle with New York for $26 million. This is the first pharmacy deal in the national litigation over the opioid epidemic.
July 21, 2021: Johnson & Johnson offers $5 billion; McKesson, AmerisourceBergen and Cardinal Health offer $21 billion for a total of $26 billion to resolve 3,000 opioid cases. The McKesson/AmerisourceBergen/Cardinal Health offer pays out over 18 years, and the Johnson & Johnson settlement pays out over 9 years.
Talcum Powder (Baby Powder)
The plaintiffs in the Johnson & Johnson talcum powder cases allege that millions of women used talcum baby powder on their babies and on their own bodies. The talc mined to produce the talcum powder contains asbestos, a known carcinogen. At this point, over 34,000 lawsuits are wending their way through the courts based on claims of ovarian cancer and mesothelioma. The cases allege that Johnson & Johnson knew about the dangers of the asbestos in the talcum powder since about 1971 and failed to warn customers. The JPML consolidated the talcum powder litigation against Johnson & Johnson and other manufacturers into MDL 2738.
May 2016: A jury in Missouri awarded a woman with ovarian cancer $55 million.
August 2017: A California jury awarded a woman with ovarian cancer $417 million.
June 2018: The Missouri Court of Appeals for the Eastern District overturned the award on the grounds that the case was filed in the wrong jurisdiction.
July 2018: Another jury in Missouri awarded $2.1 billion (reduced from $4.7 billion) in a group of 22 cases. Johnson & Johnson have appealed the verdict, but the U.S. Supreme Court refused to hear the appeal.
October 2020: Johnson & Johnson agreed to pay $100 million to settle 1,000 cases.
February 2021: The company set aside another $4 billion in anticipation of further settlements of pending litigation.
IVC filters are devices that doctors insert into a large vein in patients to capture and break up blood clots. This is done to prevent blood clots from migrating to the lungs and causing fatal pulmonary embolisms. IVC devices are said to have serious risks of their own when used in the long-term. In August 2010, the FDA issued warnings about IVC filters and another warning in 2014.
Lawsuits filed against the manufacturers, C.R. Bard and Cook, allege that defects in the design of the IVC filters cause them to break apart and perforate or fracture the inferior vena cava.
October 2014: The JPML consolidated IVC lawsuits against Cook into MDL 2570 and transferred the cases to the Southern District of Indiana.
August 2015: The JPML consolidated the IVC lawsuits against Bard into MDL 2641 and transferred the cases to the District of Arizona.
Bellwether cases are ongoing for both MDLs.
March 2018: A jury awarded $3.6 million in settlement of a IVC lawsuit. The company settled other lawsuits for undisclosed amounts.
July 2019: As of this date, over 14,000 IVC lawsuits against the two manufacturers work their way through the courts.
JUUL Labs is one of the major producers of e-vape cigarettes. JUUL’s e-cigarettes are especially popular among teens and adolescents. JUUL vaporizes a liquid containing flavored nicotine. The amount of nicotine in one JUUL e-cigarette is equal to about 200 puffs of regular cigarettes, or one pack.
Plaintiffs filed the first vaping wrongful death suit in California in October 2019 on behalf of an 18-year-old boy who died in his sleep. The plaintiffs argue that the boy died as a result of using JUUL cigarettes for years. The plaintiffs allege that JUUL violated California’s unfair business practices in marketing JUUL cigarettes and proclaiming them safer than cigarette smoking. In addition to nicotine addiction, JUUL and other e-cigarettes are linked to heart attacks, strokes, serious lung injury, seizures and nicotine poisoning.
June 2021: JUUL agreed to pay North Carolina $40 million to settle the first of the state cases filed against JUUL. Nine other state cases are still pending.
July 15, 2021: The JPML consolidated the 2,339 lawsuits consisting of class action and individual lawsuits into MDL 2913. As of July, the judge supervising MDL 2913 hasn’t scheduled any bellwether trials.
Teva introduced Paragard to the U.S. markets in 1988 following the device’s approval from the FDA. Paragard is an intrauterine device (IUD) designed to prevent unwanted pregnancies. In addition to common side effects, Paragard’s serious effects include ectopic pregnancies, sepsis, pelvic inflammatory disease, perforation of the cervix and uterus, and IUD parts embedded in the uterine wall.
2010: 1,600 consumers lodged broken device complaints against Paragard with 700 serious injuries. Plaintiffs argue that Teva knew as early as 2010 about the complaints and the possibility for serious injury.
May 2020: Plaintiffs filed several lawsuits against Teva.
December 2020: The JPML consolidated 80 individual cases into MDL 2974 and transferred the cases to the Northern District of Georgia. Paragard remains on the market. MDL 2974 has no settlements to date.
The FDA approved Elmiron as the only oral drug to treat interstitial cystitis, a painful bladder condition. Janssen Pharmaceuticals introduced Elmiron to U.S. markets in 1996. The issues for long-term users began in 2018 with indications that long-term use of the drug caused retina injuries and irreversible eyesight damage. In general, the most serious injuries result from retinal maculopathy caused by, pentosan polysulfate sodium, or PPS, an ingredient in Elmiron.
December 2020: The JPML consolidated 63 lawsuits in federal court, as well as 65 potentially-related cases into MDL 2973. The JPML transferred the federal cases to the U.S. District Court for the District of New Jersey.
June 2020: The FDA announced a new label for Elmiron, warning about the dangers of vision damage.
March 2021: MDL 2973 consisted of 196 claims against Elmiron. The claims grew to 209 by April 2021 and to 225 by May 2021. The court set the first bellwether trial on or about January 2023.
3M, the maker of Dual-Ended Combat Arms Earplugs, Version 2, supplied the U.S. military with 2.2 million of these earplugs between 2003 and 2015 to protect military personnel from damaging noise related to combat. In practice, the earplugs were too short which made them loose, causing hearing loss and, for some users, tinnitus.
July 2018: The Department of Justice (DOJ) announced that 3M agreed to pay $9.1 million to settle claims against the defective earplugs. The DOJ sued 3M under the qui tam (whistleblower) provision of the False Claims Act. The case did not determine liability. Private parties, however, are entitled to bring individual legal actions for damages suffered through the use of the 3M earplug product.
April 3, 2019: The JPML consolidated eight lawsuits and related cases into MDL 2885, the largest MDL in the U.S. court system. The JPML transferred the cases to the Northern District of Florida, noting that there are 635 tag-along cases in 33 other districts.
August 2021: MDL 2885 supervising judge ordered 1,358 cases moved closer to trials to clear the backlog of about 250,000 cases. Subsequent orders will move another 20,000 cases.
Five veteran lawsuits moved to trial. The first jury awarded $7.1 million in April 2021 to three Army vets. The second trial in May decided in favor of 3M. The third trial in June 2021 awarded one veteran $1.05 million in a trial that found 3M partially at fault. The judge found a fourth trial unrelated to 3M’s earplug device and dismissed the case.
September 2019: This was an active period for (ranitidine) manufacturers. On September 13, 2019, the FDA published an alert that a potential carcinogen is in ranitidine heartburn products. The carcinogen is called n-nitrosodimethylamine, or NDMA. Two weeks later on September 26, 2019, the FDA announced a voluntary recall of over-the-counter ranitidine products by Apotex Corp., sold by Walmart, Walgreens and CVS.
The next manufacturer affected by NDMA was Sanofi Aventis US, LLC, the producer of Zantac. The first plaintiff was a man who claimed his breast cancer resulted from his use of Zantac.
October 2019: Other lawsuits followed, claiming injuries from cancers of various internal organs, such as bladder, testicular, stomach, kidney and liver. Plaintiffs accused Sanofi of knowing about the potential for cancer from NDMA and failing to warn users.
November 2019: Plaintiffs petitioned the JPML to consolidate the cases for purposes of discovery and pretrial matters. The JPML agreed and, on February 6, 2020, consolidated the individual cases and class-action lawsuits into MDL 2024. The cases were transferred to the Southern District of Florida where parties face an order to complete all fact discovery by December 2021. After discovery closes, the judge may determine a schedule for bellwether cases, and trials may begin in 2022.
December 2020: Nearly 50,000 Zantac cases remained active.
For decades, doctors prescribed Viagra and Cialis to treat male erectile dysfunction. The makers of Viagra faced many lawsuits over the years alleging the drug caused heart attacks, strokes and sudden blindness. Lawsuits were usually dismissed; however, in the case of melanoma and skin cancers the potential exists for significant jury awards.
2014: A study by the Journal of American Medicine found a link between Viagra and melanoma, the most serious skin cancer.
2016: The parties requested that the JPML consolidate the Viagra cases for purposes of discovery and pretrial matters. The JPML consolidated almost 1,000 cases into MDL 2691.
2018: The JPML folded the Cialis cases into MDL 2691 on the basis that they alleged a similar connection to melanoma. The Viagra/Cialis cases have grown from 15 in 2015 to 955 cases in July 2019.
OtisMed, creators of the OtisKnee cutting device, designed the surgical tool to create individual patient cutting guides for bone cuts in knee replacement surgery. OtisMed originally said it didn’t need the FDA’s approval to sell the knife, but then sought the FDA’s approval in 2008. The FDA denied approval in 2009 on the grounds that the knife was not safe or effective.
Mass tort litigation set off by the OtisKnee cutting guide resulted in OtisMed agreeing to pay $80 million to settle allegations that it illegally sold the device while not in compliance with FDA regulations. Mass tort litigation for the OtisKnee cases is ongoing as plaintiffs allege the tool malfunctions during surgery.
Metal-on-metal hip replacements were designed to increase the stability of the ball-and-joint socket. Instead, the product reportedly causes a number of injuries from metal pieces floating in the bloodstream, broken bones and infection at the implant site. Plaintiffs have filed lawsuits alleging the product is defective.
In April 2017, the JPML consolidated dozens of Stryker hip replacement cases into MDL 2768. The JPML transferred six Stryker cases and 27 related cases to the District of Massachusetts.
Valsartan is a chemical ingredient in several drugs, including drugs used to treat high blood pressure and heart failure. The FDA issued a recall of Valsartan in 2018 when it found an impurity called NDMA in the products. As noted above with regard to Zantac, NDMA is a known carcinogen when ingested into the human body.
The FDA did not recall all products containing Valsartan, only those the FDA said did not meet the FDA’s standards. The recalled products were Valsartan manufactured by Major Pharmaceuticals, Solco Healthcare and Teva Pharmaceuticals. The FDA also recalled Valsartan/Hydrochlorothiazide (HCTZ) manufactured by Solco Healthcare and Teva Pharmaceuticals. Other products containing Valsartan were subject to the FDA’s warnings and recalls throughout 2018 and 2019.
February 2019: Valsartan lawsuits alleging toxic health effects brought on by NDMA impurities in blood pressure and heart drugs were consolidated into MDL 2875. The JPML transferred five cases and seven tag-alongs into the District of New Jersey. The MDL grew to around 900 cases claiming cancer was caused due to the use of the popular drug.
July 2021: The MDL judge set no bellwether cases yet or bellwether trial dates.
Truvada/Tenofovir Disoproxill Fumarate (TDF)
Gilead Sciences, Inc. developed the drug Truvada (Tenofovir Disoproxill Fumarate, or TDF). TDF suppresses the enzyme that HIV uses to reproduce.
2004: The FDA approved Truvada for the purpose of treating people who suffer from HIV.
2012: The FDA approved Truvada to prevent people from getting HIV through sexual intercourse. Research found that Truvada patients may face the risk of kidney problems, such as renal failure, nephritis and demineralization of bones.
2018: Plaintiffs filed two legal actions in California. Two of the plaintiffs were HIV positive and claimed that Gilead Sciences knew about the drug’s toxicity since 2001 and failed to warn users of the dangers.
In addition, a class action lawsuit was filed on behalf of all Californians who were prescribed the Truvada and similar drugs from October 2001 and who suffered injuries as a result of the manufacturer’s misrepresentations. The reality is that studies as far back as 1997 indicated kidney problems and bone loss in TDF users.
Hundreds of lawsuits pend against Gilead in California courts, including one class action. Plaintiffs claim that Gilead’s representatives marketed TDF as safe with no toxicity. There are also lawsuits filed in Delaware and Louisiana. There are no settlements or trials to date.
Invokana is a drug designed to treat Type 2 diabetes. Invokana blocks the absorption of sugar in diabetics that are not insulin-dependent. The drug helps express excess sugar through the kidneys.
2013: Johnson & Johnson introduced Invokana to the U.S. marketplace after the drug received the FDA’s approval.
2015: The FDA warned there were serious risks with Invokana, including diabetic koto acidosis (DKA) and urinary tract infections. The FDA noted 19 life-threatening blood infections and kidney infections during the 2013 to 2015 period. Consequently, the FDA added warnings to Invokana’s label.
2016: The JPML consolidated 57 Invokana cases into MDL 2750 for purposes of discovery and pretrial matters.
2017: The FDA confirmed the results of a 2016 study by the American Diabetes Association that Invokana presents a serious risk of amputation in the lower extremities of Type 2 diabetics.
2018: MDL 2750 consisted of more than 1,000 cases. The FDA found that Invokana may lead to gangrene in the genitals/genital area. The 2018 Quarterly Report for Johnson & Johnson showed the drug company faces 1,200 Invokana lawsuits.
Johnson & Johnson offered the first settlement of a case under MDL 2750. The MDL 2750 settlement offer is confidential, and it is unclear how many cases the settlement will resolve.
September 2019: The MDL 2750 had 878 active lawsuits. Court watchers expect to see more settlement offers in 2021.
AFFF Firefighting Foam
Aqueous Film Forming Foam (AFFF) are man-made, toxic chemicals: perfluorooctane acid (PFOA) and perfluorooctane sulfonate (PFOS). These chemicals repel oil, grease and water. PFOA and PFOS are important tools that firefighters use to smother fires from oil, paint, kerosene and gasoline. PFOA and PFOS are toxic to humans, animals and other organisms who become ill through ingestion, inhalation, absorption and consumption. They last indefinitely in the environment, especially in groundwater. They also cause injuries to the bloodstream, kidneys and liver.
Since the 1960s, 3M and other companies designed, made, marketed and sold AFFF. Plaintiffs assert that the defendant companies knew the dangers of AFFF since the 1970s. They hid their knowledge from the public and from the Environmental Protection Agency (EPA).
December 7, 2018: The JPML consolidated 75 product liability cases into MDL 2873. The cases were transferred to the U.S. District Court for South Carolina.
December 18, 2018: The JPML denied 3M’s request to transfer Middlesex Water Co. v 3M from New Jersey to MDL 2873 because Middlesex does not involve claims of AFFF exposure.
May 2020: 100 firefighters filed the Gentile v 3M, et al case, based on theories of negligence, failure to warn, defective design and demands for medical monitoring for victims with serious illness.
June 19, 2020: The JPML ordered the Gentile case into MDL 2873. MDL 2873 is a consolidation of approximately 1,200 cases for property damage alleged by water providers, property damage alleged by property owners, bodily injury and medical monitoring. Ten bellwether cases advance closer to trial in discovery proceedings.
Essure Birth Control
Essure’s birth control device is a metal coil that doctors insert into the fallopian tubes to prevent unwanted pregnancies. Essure litigation traces its starting point to 2015 when the FDA received consumer complaints about the risks of using the coil.
2002: The FDA approved Essure birth control device.
2014: The first case in Essure litigation began: Walsh v. Bayer.
2015: Walsh v Bayer moved to federal court.
2016: The FDA recommended a stern warning to Bayer’s Essure product in the form of a “black box” warning.
2018: The FDA restricted the sale and distribution of Essure. Bayer voluntarily discontinued the manufacture and sale of Essure, citing business reasons.
October 2019: 32,000 women filed claims against Bayer claiming injuries from Essure. The injury claims included pain, perforation, hemorrhage, allergy to the device, mislocation and broken devices.
February 2020: First Essure bellwether trial.
August 2020: Bayer agreed to settle 90 percent of Essure cases for $1.6 billion.
September 2020: Filed cases increased to 39,000.
Xarelto is Janssen Pharmaceutical’s blood thinner product marketed by Bayer. For many patients, Xarelto causes adverse consequences, including excessive bleeding, wound leakage, infection, brain bleeds and death. The following timeline shows how litigation developed for Xarelto:
2011: The FDA approved Xarelto for treatment of deep vein thrombosis and pulmonary embolism. The FDA later included approval for the treatment of atrial fibrillation. This was also the year of the first reported death from Xarelto.
2013: The FDA pointed out Bayer’s aggressive marketing campaign for Xarelto because it made dubious claims about the drug’s safety.
2014: Plaintiffs filed the first Xarelto wrongful death lawsuit.
December 12, 2014: The JPML consolidated the Xarelto cases into MDL 2592 and transferred the cases to the U.S. District Court for the Eastern District of Louisiana. Three bellwether cases decided in 2017 were in favor of the defendants.
March 2019: Johnson & Johnson and Bayer agreed to settle all 23,866 Xarelto MDL lawsuits for $775 million. Other cases still pend in state courts. The average payout under the settlement is about $31,000 per plaintiff, although that amount may differ based on the severity of the injuries.
Fluoroquinolone drugs fight serious bacterial infections. They also reportedly have serious side effects, causing injured patients to file lawsuits claiming inadequate warnings about dangerous side effects.
Side effects include peripheral neuropathy, tendon dissections, dangerous blood sugar levels and aortic aneurysms. Hospitalizations and even deaths occurred in patients taking Levaquin, Cipro and other fluoroquinolone drugs. Fluoroquinolone drugs manufactured by Johnson & Johnson, Merck, Bayer and others entered the U.S. market during the 1980s.
2006: Plaintiffs filed lawsuits against the Levaquin manufacturer, Ortho-McNeil-Janssen Pharmaceuticals, Inc., for tendon injuries resulting from the product.
June 2008: The JPML consolidated the cases into MDL 1943.
July 2008: The FDA issued a black box warning about the potential side effects.
2011: The FDA issued a warning about the side effects for myasthenia gravis patients.
2013: The FDA issued warnings about irreversible tendon damage.
August 2015: The JPML consolidated fluoroquinolone cases claiming irreversible peripheral neuropathy into MDL 2642. The JPML transferred the cases to the District of Minnesota.
2016: The FDA issued warnings about permanent damage to muscles, joints and the central nervous system. As of December 2016, there were 781 cases in MDL 2642.
2017: Plaintiffs filed more than 2,000 cases under MDL 1943. The first bellwether case awarded the plaintiff $630,000 (reduced from $700,000) and punitive damages of $1.115 million. Juries decided two bellwether cases for the defendants, and hundreds of cases settled out. Others were transferred or dismissed. By March 2017, there were only 10 cases left in MDL 1943. The District Court in Minnesota closed MDL 1943 in July 2017.
July 2018: The FDA warned about serious low blood sugar effects as well as mental health side effects.
December 2018: The FDA warned about side effects for common bacterial infections and aortic aneurysms.
July 2019: 471 cases make up MDL 2642.
March 30, 2021: The Minnesota District Court continues to manage pretrial orders and discovery under MDL 2642.
Glaxo Wellcome (former Glaxo-Smith-Kline (GSK)) developed Zofran as an anti-emetic to prevent vomiting in cancer patients. Although Zofran did not receive the FDA’s approval for this use, Glaxo Wellcome also marketed the drug as a nausea prevention pill for pregnant women who suffered from morning sickness. Zofran works by blocking serotonin effects in the human body.
1991: The FDA approved Zofran for the treatment of nausea in cancer patients. The drug is also sold in its generic form, ondansetron, after the patent expired.
2012: GSK marketed Zofran to doctors as the preferred drug to prevent morning sickness. The drug did not receive the FDA’s approval for that purpose, and GSK never asked for approval.
July 2012: GSK pleaded guilty to marketing Zofran for use not approved by the FDA. The settlement with the DOJ was $3 billion ($2 billion of that was punitive damages).
February 12, 2015: First lawsuit filed alleging Zofran caused heart birth defects in children.
February 16, 2015: Second lawsuit filed alleging birth defects.
October 13, 2015: The JPML consolidated Zofran cases into MDL 2657. The JPML transferred the cases to the U.S. District Court in Massachusetts.
January 2020: In the first MDL 2657 bellwether trial, GSK told the Court it wanted to go paper only, not a full trial, because the plaintiff could not prove she would not have taken Zofran even if it had a warning label.
March 15, 2021: MDL 2657 has 481 pending cases out of a total of 739.
Dicamba is an herbicide developed for broadleaf weeds and woody plants. Manufactured by Monsanto and BASF, Dicamba forces plants to grow in unnatural ways and then die. Dicamba tends to drift onto neighboring properties where plants cannot withstand the herbicide’s attack. The soybean belt in the U.S. has felt the devastating effects of Dicamba treatments by neighbors.
February 1, 2018: The JPML consolidated Dicamba cases into MDL 2820 and transferred the cases to the U.S. District Court for the Eastern District of Missouri.
February 2020: Bader Farms v Monsanto resulted in a $265 million verdict for the peach orchard plaintiff.
August 31, 2021: There are 37 pending cases in MDL 2820 out of a total of 55.
Textured Breast Implants
Textured breast implants are common following breast reconstruction surgery or breast augmentation surgery. The implants can cause a rare form of cancer called Breast Implant-Associated Anaplastic Large Cell Lymphoma (BIA-ALCL). Manufacturer Allergan designed the textured implants to help the implanted tissue adhere better than smooth implants.
July 2019: Allergan issued a global recall of its textured breast implants after the FDA requested the company remove the implants from the market due to increased risk of cancer.
December 18, 2019: The JPML consolidated breast implant cases into MDL 2921 and transferred the cases to the District of New Jersey.
August 13, 2021: MDL 2921 has 878 pending cases out of 904 total.
Prilosec/Proton Pump Inhibitors
Proton pump inhibitors are a common heartburn medicine. The inhibitors block excess acid in the stomach and are an indicated treatment for ulcers, acid reflux disease, heartburn and erosive esophagitis. The inhibitors may cause common side effects, such as bone fractures, pneumonia, kidney disease, dementia and Vitamin B12 deficiency. Studies also show an increased risk for heart attacks, strokes, stomach cancer and a skin condition called erythroderma, which is sometimes fatal.
1989: Proton pump inhibitors came into the U.S. market after approval by the FDA.
2016: Litigants asked the JPML to consolidate kidney-related injury cases into MDL. The cases pending in 2016 numbered 15.
August 2, 2017: The JPML consolidated the Prilosec/proton pump inhibitors litigation into MDL 2789 and transferred the cases to the U.S. District Court for the District of New Jersey.
January 2020: There were 13,400 pending suits in federal court out of 15,164 filed.
August 2021: There were 13,416 pending suits in MDL 2789 out of 17,828 filed.
November 2021: First bellwether case scheduled with others to follow in 2022.
Litigation to Watch
In early 2021, Valisure Pharmacy in Connecticut tested sunscreens and sunblocks for toxic effects on users. Valisure found that 78 of the products tested contained elevated levels of benzene, a carcinogen. Valisure asked the FDA to recall all sunscreens and strengthen its regulations regarding the use of benzene.
In July 2021, Johnson & Johnson voluntarily recalled its aerosol sunscreen sprays under brand names Aveeno and Neutrogena. Lawsuits quickly followed the voluntary recall based on the findings of benzene, and Multiple class action lawsuits are working through courts in California, Florida and New Jersey.
The anti-obesity drug, Belviq, works to reduce the user’s energy intake and body weight. The chemicals in Belviq work on the brain to suppress appetite.
The FDA approved Belviq in 2012 for treatment of obese patients over age 18 with weight-related health conditions, such as diabetes or high blood pressure. As of the approval, the FDA required the manufacturer to conduct a clinical trial of Belviq. Based on the results of that clinical trial, the FDA requested a voluntary recall of the drug on the basis that the increased incidences of cancer outweigh the benefits.
There are approximately 7,000 compounds referred to by the terms per- and polyfluoroalkyl substances (PFAS). These chemicals are known as “forever chemicals” because they persist in both the environment and in the human body.
2018: The JPML consolidated lawsuits filed by firefighters suffering from various cancers sustained through the use of PFAS chemicals. The JPML consolidated the cases as MDL 2873 and transferred the cases to the U.S. District Court for South Carolina.
June 2021: There were 1,200 cases covered by the MDL 2873. Bellwether trials (10) selected from the water provider cases advance toward trial.
Pfizer, Inc. created Xeljanz as a biologic drug, made from living animal, human or bacterial cells. Xeljanz is a Janus kinase inhibitor (JAK). JAK biologics suppress the body’s immune response in order to alleviate pain, swelling and damage to joints typically found in rheumatoid arthritis (RA) sufferers. Suppressing the immune system leaves the door open for opportunistic diseases, such as tuberculosis, and for viruses, such as shingles.
November 2012: The FDA approved Xeljanz to treat moderate to severe RA. Doctors prescribe Xeljanz to treat rheumatoid arthritis and ulcerative colitis.
2013-2018: The FDA received notices about deep vein thrombosis blood clots and lung blood clots.
Plaintiffs in subsequent lawsuits suffered from blood clots in the extremities, pelvis and lungs. Xeljanz plaintiffs filed individual cases against Pfizer, Inc. There are no class action cases or mass tort claims. It is possible that an MDL case will consolidate Xeljanz litigants if the cases continue to proliferate.
NEUDEXTA is a unique drug designed by Avanir Pharmaceuticals to treat pseudobulbar affect (PBA) in patients whose neurological condition impacts the emotions controlled by the brain.
2010: The FDA approved NEUDEXTA. Originally, the studies supported the use of the drug to treat amyotrophic lateral sclerosis (ALS) and multiple sclerosis (MS). The FDA indicated that NEUDEXTA is not safe to treat Alzheimer’s dementia or other dementia conditions because it puts the elderly at a higher risk of falling or death.
Under tutelage from Avanir Pharmaceuticals, health professionals were allegedly trained to falsely diagnose patients with PBA so Medicare would cover the drug. Consequently, use of the drug in long-term facilities for the elderly escalated 400 percent.
September 2019: Avanir Pharmaceuticals had to pay $108 million in penalties and damages related to a kickback scheme for NEUDEXTA prescriptions.
January 2020: An Ohio doctor pleaded guilty to wrongful disclosure of patient records when he gave confidential patient files to an Avanir representative in order to convince Medicare to approve the use of NEUDEXTA.
In the U.S., hernia operations sometimes use hernia mesh implants to repair the weak spots in the muscle or tissue, instead of traditional sutures. Hernia mesh implant patients often need another surgery within five years to repair the failed hernia mesh implant or to reverse the original surgery.
Covidien, Inc., a subsidiary of Medtronic, Inc., is a manufacturer of Parietex hernia mesh, the subject of several lawsuits. Covidien uses polyester fiber that has a hooked component. It is this hook that can cause serious internal injury for patients, including inflammatory response in internal organs, perforation, migration, infection, bowel obstruction, scar-tissue adhesions and pain.
June 5, 2020: Covidien petitioned the JPML to consolidate the hernia mesh lawsuits.
August 7, 2020: The JPML denied the MDL request, noting that the federal cases are limited in number and that cooperating counsels makes coordination easier without assigning an MDL.
March 2021: No bellwether cases to date.
The Business Case for Mass Tort & Class Action Litigation
Mass tort cases involve complex science issues, confusing medical terminology, unique medical devices and diversity of injuries among plaintiffs. They also provide great financial opportunity for law firms who elect to add mass tort litigation to their practices. The advantages of mass tort litigation arise from:
- Economies of Scale. All the litigation costs of proving causation are shared by all the plaintiffs.
- Disincentives to Defendants. Potential mass tort liability claims can damage a manufacturer’s stock prices, impact future earnings and make a difference between the business’s termination and survival.
- Incentives to Defendants. It’s cheaper to settle the claim for substantial sums than to go to trial.
- Bellwether Trials. These trials define issues and challenges and point the way to settlements.
The lawsuits outlined in this article are the ones to watch because:
- The JPML has consolidated many of them with regard to discovery and pretrial matters into an MDL, which is another way of creating economies of scale.
- Mass tort watchers expect the cases that are not already consolidated to become MDL due to the probability of large numbers of plaintiffs.
Generating Mass Tort & Class Action Leads
Law firms that take on mass tort and class action cases must generate numerous leads. The process requires three steps:
- Interacting with leads based on how and where you found them
- Qualifying and screening leads at the intake level
- Converting qualified leads into signed clients during the first contact, or follow-up until converted
There are several ways to generate mass tort and class action leads:
- Buying Leads. Buying leads means paying brokers, marketing firms, Google and others to provide leads for you. Buying leads can be risky because it makes you dependent on those services. Your leads should come from diverse sources, and when you buy leads, you have no idea where they came from or the process that generated them.
- Traditional & Digital Advertising. Traditional advertising is print media, radio and TV. Digital advertising drives conversions and traffic through online channels.
- Referrals. Referral leads come to you due to the recommendation of one of your existing clients or supporters. Arguably, this is the best source for leads.