Law360 issued a report in December on the multidistrict litigations (MDLs). Among the hundreds of pending MDLs across the country, the report says some stand out for the large jury awards returned against major companies such as Johnson & Johnson. The report also says there have been some MDLs, like the General Motors ignition-switch MDL, where there were not many verdicts at all. Other MDL were said to be notable for their “longevity.” As 2016 draws to a close, Law360 reported on what they describe as “five highly visible MDLs that will be most active in 2017.” We will set out the information below for each of the five as reported by Law360.
General Motors Ignition-Switch MDL
In this MDL before Southern District of New York Judge Jesse Furman, General Motors is accused of selling cars it should have known were dangerous. An ignition switch placed in a number of makes and models throughout the auto empire – including Pontiacs, Chevys and Saturns – could flip out of the “run” slot while a vehicle was in motion, disabling the power steering, the power brakes and, most dangerously, the air bags. Well over a thousand cases have settled; 325 cases remain in the federal MDL, according to the most recent statistics from the Judicial Panel on Multidistrict Litigation. There is also a state MDL over the switches in Texas. An initial set of six bellwethers ended in 2016 after only one completed a trial. The single verdict came in March and was for GM, although there was an asterisk in the form of the jury’s finding that the GM vehicle at issue was unreasonably dangerous. Of the five others, one was dismissed by the Plaintiff before trial, one was dropped partway through trial by a Plaintiff facing claims of falsifying financial documents, and three were settled.
Next up in this MDL is a second set of six bellwethers. They’ll involve accidents that occurred after July 2009, when Old GM went through a restructuring and sold its assets to New GM, the entity defending against the suits. Each side is currently selecting a wish list of cases for inclusion, and those lists are due to Judge Furman in January. The outcome of the first set of bellwethers “raises the question of whether there may be a handful of cases that from the perspective of the Plaintiff might have significant value [but] the rest of the cases may not have significant value in terms of potential verdicts,” says Diane Lifton of Hughes Hubbard & Reed LLP. “In which case you might see the whole MDL proceed toward settlement either during or after 2017. “If they keep settling out like that and cases keep dropping away, I would expect to see a resolution, especially with a leadoff win for GM,” Lifton said. The MDL is In re: General Motors Ignition Switch Litigation, case number 1:14-md-02543, in the U.S. District Court for the Southern District of New York.
DePuy Pinnacle Hip MDL
It was a big year for Plaintiffs with DePuy artificial hips. On Dec. 1, a Texas federal jury found Johnson & Johnson’s DePuy Orthopaedics Inc. unit liable for more than $1 billion in a six-Plaintiff bellwether trial targeting metal-shedding artificial hips in its Pinnacle line, dwarfing the $150 million verdict J&J is on the hook for after a previous bellwether. At the MDL’s heart are allegations that friction between the device’s metal socket and metal ball head rubs away billions of microscopic particles with every step, polluting the bloodstream and surrounding tissue with “wear debris” over time. The Plaintiffs alleged J&J knew the device was riskier than others available but still pushed it aggressively, even paying kickbacks to amenable surgeons.
J&J maintains it acted appropriately and responsibly in the development, testing and marketing of the Ultamet product. During its opening, the company questioned whether the patients might have had hypersensitive responses to the implants, and suggested the devices were wrongly positioned in their bodies because of doctor error, which it said would lead to the excessive wear. J&J has objected to proceeding with more trials until the appeals from the second bellwether trial have been resolved. This MDL has “garnered a great deal of press because of the size of the verdict and the concern over evidentiary rulings at the trial court level and how quickly the Fifth Circuit might get to the appellate issues,” Lifton said. “All of the indicators point toward the likelihood that these significant verdicts are not going to lead to a global settlement anytime soon.”
After the verdict was read, U.S. District Judge Ed Kinkeade urged the parties to appoint a settling lawyer for discussions of a potential end to the MDL, which has more than 6,000 cases. The next bellwether is set to begin in September 2017, with the parties preparing for 10 plaintiffs, all from New York. The MDL is In re: DePuy Orthopaedics Inc. Pinnacle Hip Implant Products Liability Litigation, case number 3:11-md-02244, in the U.S. District Court for the Northern District of Texas.
Xarelto (Rivaroxaban) MDL
Lawsuits over internal bleeding allegedly caused by Xarelto, a blood thinner developed by Johnson & Johnson unit Janssen Pharmaceuticals Inc. and Bayer Corp., were first consolidated in December 2014. The MDL now has almost 14,000 cases pending before U.S. District Judge Eldon Fallon in the Eastern District of Louisiana, and suits have also been filed in state court. Xarelto was approved in the U.S. in 2011 for a number of uses, including reducing the risk of deep vein thrombosis in the legs of knee- or hip-replacement recipients and reducing the risk of stroke in atrial-fibrillation patients. Both companies submitted new drug applications in 2011 for both uses, according to filings. The drug made $582 million in sales in its first full year of market availability, rising a few years later to $2 billion for fiscal 2013 – a mega-blockbuster. Dates have been set for four bellwether trials, and the specific cases for them have been chosen. The bellwethers will try a mixture of gastrointestinal-bleed and brain-bleed claims under Louisiana, Mississippi and Texas law.
In the first bellwether, slated for March, Plaintiff Joseph Boudreaux will argue that he started taking Xarelto to control his atrial fibrillation in January 2014 and less than a month later was hospitalized for dangerous gastrointestinal bleeding requiring multiple blood transfusions. He says Janssen and Bayer misrepresented the safety of the drug both to the public and to the U.S. Food and Drug Administration and that there are issues surrounding certain clinical trial results. After Boudreaux’s trial, starting March 13, bellwether trial dates are set for April 24 and May 30. Watch for tweaks in bellwether start dates, however; Judge Fallon has been notified of a conflict with the NBA All-Star Game. The MDL is In re: Xarelto (Rivaroxaban) Products Liability Litigation, case number 2:14-md-02592, in the U.S. District Court for the Eastern District of Louisiana.
Volkswagen “Clean Diesel” MDL
Legendary Plaintiffs’ attorney Elizabeth Cabraser told a California federal court in October that this litigation had “set the land-speed record” for turning around the largest automotive settlement in U.S. history in about a year. Volkswagen’s emissions troubles began when the U.S. Environmental Protection Agency (EPA) launched an investigation into its “clean diesel” cars’ true output of pollution-causing emissions. Although the manufacturer claimed that its diesel cars were a “cleaner” option than nondiesel cars, Volkswagen’s programmers had installed devices meant to deceive regulators about the actual emissions output. Those so-called defeat devices caused a vehicle’s reported output of nitrogen oxides to meet U.S. standards during testing, but the cars actually emitted up to 40 times more pollutants during real-world driving. About 650 dealerships and about 475,000 customers in two different classes reached deals with Volkswagen this year.
Final approval of the consumer settlement was granted by U.S. District Judge Charles Breyer in October. The settlement includes just over $10 billion to buy back cars from consumers and provide cash compensation to the owners, $2.7 billion for environmental remediation and $2 billion to build zero-emission vehicle infrastructure. Only weeks after final approval, a number of appeals were filed with the Ninth Circuit. As for the dealer plaintiffs, preliminary approval of their $1.2 billion settlement was granted in October, and a hearing on final approval is set for Jan. 18. Seven dealerships have opted out and eight have objected. On Dec. 20, Judge Breyer announced Volkswagen had reached a tentative deal worth at least $1 billion over 80,000 3.0-liter cars; the previous settlements had been regarding 2.0-liter cars. Still remaining are securities claims over stock drops in the wake of the revelations. The MDL is In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Products Liability Litigation, case number 3:15-md-02672, in the U.S. District Court for the Northern District of California.
Pelvic Mesh MDLs
The most sprawling medical-device MDL grouping by far is also one in which “the bellwether process is not viable,” U.S. District Judge Joseph Goodwin ruled in 2014. Judge Goodwin, of the Southern District of West Virginia, is overseeing 62,000 active cases in seven different MDLs. More than half the cases are against Ethicon Inc. Many thousands of other suits against American Medical Systems Inc., C.R. Bard Inc. and Boston Scientific Corp. have already been settled, according to Leigh O’Dell of Beasley Allen, a lead lawyer involved in the litigation on the Plaintiffs’ side.
In October, Boston Scientific asked the Eleventh Circuit to overturn a $27 million jury verdict for four women who said the company’s mesh caused infection, organ perforation, nerve damage, blood loss and chronic pelvic pain. Defense lawyers are watching closely to see what view the appeals court takes on the use of multiple Plaintiffs in one trial. In his April 2014 consolidation order, Judge Goodwin had said that the cases made identical legal claims and that the interest of fairness both for these four women and for the thousands more waiting in the wings demanded consolidation. “The more cases that are tried together in this MDL totaling over 11,000 cases, the sooner the parties will come to understand the true nature of these cases, their values, the weaknesses and strengths in their cases and the cost of trying them. At this time, the bellwether process is not viable in this MDL,” he said. The trial took place in November 2014. O’Dell said that “it’s been pretty protracted and very hard-fought litigation. There have been many cases worked up through Judge Goodwin’s discovery process – hundreds of cases, which would make it distinct from other MDL proceedings.” She called that exhaustive workup roster “helpful in some sense for learning in very granular detail the strengths and weaknesses of specific cases.”
A trial in the 31-plaintiff Mullins case, which sits within the larger Ethicon mesh MDL, is set for March 6. The Ethicon MDL is In re Ethicon Inc. Pelvic Repair System Products Liability Litigation, 2:12-md-02327, and the Boston Scientific MDL is In re Boston Scientific Corp. Pelvic Repair System Products Liability Litigation, 2:12-md-02326, both in the U.S. District Court for the Southern District of West Virginia.
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