I will give a brief projection in this issue on some of what to expect from our firm in the Mass Torts Section relating to the area of Mass Torts. There have been a number of important developments in recent months that will carry over in 2018. Fortunately, we have lawyers and support staff who are ready and willing to face the challenges ahead.
The Opioid Litigation
Without a doubt, the opioid litigation will be at the forefront of Mass Torts this year. While many cities and states have already filed lawsuits against opioid manufacturers for the tax dollars spent on treatment and law enforcement measures, our lawyers in the Mass Torts Section are evaluating individual opioid addiction cases involving injuries and deaths caused by overdoses. Opioids are highly-addictive pain killers and were blamed for approximately 64,000 death due to overdose in 2016 alone. Some common opioids include Vicodin, Percocet, Dilaudid, Morphine, Oxycontin, and Oxycodone.
As early as 1911 until the late 1990s, opioids were used in limited circumstances, such as to treat post-surgical pain, end-of-life care or terminal illness. This is because both the medical community and regulators were aware of the addictive nature of these drugs. However, in the late 1990s and early 2000s, treating pain became a greater priority. The pharmaceutical manufacturers played an important role in this changing school of thought, while making billions in the process.
According to the Centers for Disease Control and Prevention, the number of prescription opioids sold to pharmacies, hospitals and doctors’ offices almost quadrupled from 1999 to 2014. While there was little evidence of a change in Americans’ overall reported pain, prescriptions to opioids skyrocketed. According to U.S. government numbers, there are more than 650,000 opioid prescriptions dispensed every day in this country.
As the number of prescription opioids rose, so too did overdoses and deaths of American citizens. Between 1999 and 2015, over 180,000 Americans died from prescription opioid overdoses.
Now consumers, hospitals, and governments across the country are pushing back with lawsuits and investigations, hoping to hold pharmaceutical manufacturers and distributors accountable for damage caused by the opioid crisis. Currently, opioid lawsuits are being brought by three types of plaintiffs: government entities, hospitals, and injured individuals. While lawyers in Beasley Allen’s Toxic Torts Section are investigating and handling claims by government entities, our firm’s Mass Torts Section is investigating cases involving individuals who have suffered opioid-related deaths or hospitalization due to overdose.
In December 2017, the Judicial Panel on Multidistrict Litigation centralized opioid lawsuits in the Northern District of Ohio. On January 9, 2018, Judge Dan Polster, the federal judge overseeing this massive multidistrict litigation spoke to a crowded courtroom and expressed the unusual nature of this litigation. Judge Polster explained that his “objective is to do something meaningful to abate this crisis and to do it in 2018.” While lawsuits involving government entities may be on a fast track, Judge Polster indicated that injured individuals will still have their right to pursue recovery due to their own unique circumstances.
The Low-T Litigation
Low testosterone therapy (Low-T) will also be a hot topic this year. On January 8, 2018, the third MDL bellwether trial involving AndroGel began in Illinois federal court. Low-T has been associated with heart attack, stroke, and pulmonary embolisms in men who were using the products for fatigue, depression, and loss of libido. It is very clear that the manufacturers rushed Low-T products to market without adequate safety and efficacy testing. Although the latest Low-T trial resulted in a defense verdict, two other juries have awarded nearly $300 million in punitive damages to plaintiffs injured by Low-T products. I will have more to say on this litigation below.
The Lipitor Litigation
Women who were prescribed Lipitor for the primary prevention of a cardiovascular event and later developed Type 2 Diabetes will be watching closely for a decision from the United States Court of Appeals for the Fourth Circuit following the MDL judge’s 2017 summary judgment rulings, and rulings excluding the plaintiffs’ experts from testifying on key issues. Oral argument was held in December before a panel of Fourth Circuit judges. The outcome of this case will determine whether plaintiffs in the Lipitor MDL can revive their cases against Pfizer for hiding and downplaying the risks of developing Type 2 Diabetes as a result of taking the drug.
Metal on Metal Hip Litigation
Our lawyers anticipate several trials involving metal-on-metal hips this year, including hip replacements made by Biomet and DePuy. Metal-on-metal hips were first used more than 40 years ago and the results and outcomes to patients were disastrous because of premature failure and metal toxicity in the human body. In the early 2000s, manufacturers decided to make another go of it, and just as surgeons saw with the early MoM hips, the newer versions often resulted in the same types of injuries to patients. The most recent jury trial against DePuy resulted in a verdict of over $500 million for the plaintiff. Lawyers in the Mass Torts Section anticipate being the first to take on Biomet at trial later this year.
The Xarelto Litigation
The Xarelto litigation ended on what appeared to be a high note in 2017 when a Philadelphia state-court jury returned a verdict in favor of the plaintiff for $28 million after she suffered a gastrointestinal bleed while taking the drug. However, that verdict was set aside last month by the trial judge. Two additional Philadelphia trials will begin very soon with several more to follow later this year. In federal court, Johnson & Johnson is facing almost 20,000 individual Xarelto cases. U.S. District Judge Eldon Fallon of the Louisiana Eastern District oversees that MDL. It is our hope that Judge Fallon will soon begin remanding MDL cases back to their home jurisdictions for trial.
The MDL litigation in the Eastern District of Louisiana now contains approximately 20,000 individual Xarelto cases. Andy Birchfield, the head of Beasley Allen’s Mass Torts Section, continues to serve as Co-Lead Plaintiff Counsel for the Xarelto MDL. On January 30, 2018, Judge Fallon was to hear oral arguments regarding the next phase of the Xarelto MDL litigation. The next case management order will control how cases are handled from the date of its issuance going forward, including the possibility that some of the cases filed in the MDL could undergo additional case-specific discovery and be remanded back to their respective Federal District Courts for trials.
The state court Xarelto litigation in Philadelphia now contains approximately 1,500 cases, and the litigation there continues to be very active. Four additional Philadelphia Xarelto cases are set for trial in March, April, May, and June of 2018. Beasley Allen attorneys continue to work on behalf of thousands of individuals injured by Xarelto.
The Talc Litigation
Finally, in the talc state court litigation, Missouri Judge Rex M. Burlison recently upheld a $110 million verdict awarded by a St. Louis jury in May of 2017. We believe that 2018 will bring other favorable decisions in several cases currently on appeal. Anticipated decisions include: a decision from the Missouri Supreme Court on the jurisdictional issue following BMS, a decision from the NJ Court of Appeals on our appeal of the dismissal of two of our state court cases in September 2016, and a review by appellate courts in California of the JNOV in the Eccheverria case, which returned a $417 million verdict.
Beasley Allen lawyers are also preparing to return to St. Louis for a multi-plaintiff trial in June. In the MDL, generic discovery continues. Plaintiffs recently disclosed expert witnesses and have requested the Court require that Defendants disclose their own witnesses prior to any Daubert hearings.
If you have any questions or the need for help on a Mass Torts case, call Melissa Prickett, Mass Torts Section Administrator, at 800-898-2034 and she will put you in touch with the appropriate lawyer. You can email Melissa at Melissa.Prickett@beasleyallen.com.
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