Class Action

A Look Back at 2021 Mass Tort Cases and a Look Forward to 2022

January 11, 2022

In this article, we look back to the top mass tort cases we covered in 2021 that will continue to develop in the new year, featuring updates on why Roundup's link to cancer is being reviewed by the US Supreme Court, why 2022 may bring with it additional Opioid settlements, J&J's continued battle against Talc liabilities, and the growing number of cases against 3M and other PFAS manufacturers. 

1.     Roundup’s link to cancer may be reviewed by the US Supreme Court in 2022.

Glyphosate, the active ingredient in Roundup, the most widely used weed-killer in the world, has been declared a “probable human carcinogen” by the cancer-research agency of the World Health Organization. Studies have linked Roundup to Non-Hodgkin Lymphoma and several cancer subtypes.  

Thousands of cases were filed in 2021 accusing Monsanto, the manufacturer of Roundup, of failing to warn about the risk of developing Non-Hodgkin Lymphoma. Over two billion dollars have been awarded to plaintiffs in these cases thus far, but one recent verdict is currently being appealed to the U.S. Supreme Court.  In this closely watched case, Monsanto has asked the high court to overturn a recent $25 million verdict in favor of Edwin Hardeman who claimed Roundup caused his cancer. Last August, the Ninth Circuit Court of Appeals affirmed Hardeman’s California jury award.  

Monsanto is arguing that the Ninth Circuit's ruling should be examined for two reasons: 1) that Hardeman's failure-to-warn claims are preempted by federal law; and, 2) that his expert witnesses were improperly allowed to testify about Roundup's safety.  

After receiving briefs from both sides on the matter, the Supreme Court, in a fairly unusual move, has now asked the U.S. Solicitor General's office to weigh in on its decision on whether to review the case.

Regarding the failure to warn claims, the Ninth Circuit specifically ruled that such claims were not preempted by the Federal Insecticide, Fungicide and Rodenticide Act, as the requirements of both state and federal laws were similarly consistent. It determined that under the federal law, manufacturers must provide warning labels "adequate to protect health and environment," and California law mandates warnings about dangers that a "reasonably prudent" manufacturer would know about.

Monsanto’s counsel, Chris Loder countered, arguing that: "Indeed, the U.S. expert agency, the Environmental Protection Agency, has consistently found that glyphosate-based herbicides can be used safely and are not carcinogenic, and has stated that a cancer warning would be false and misleading and misbrand the product.”

He noted that the company has been "very selective" in its settlement approach since filing its petition with the Supreme Court, and now that the solicitor general input has been requested, it "will not entertain any further settlement discussions with plaintiff lawyers that are representing a substantial number of Roundup claims."

Regarding plaintiff’s expert witnesses, Monsanto’s counsel argued that the experts who testified on behalf of Hardeman were admitted into court under a "uniquely lenient" standard, with potential "consequences for tens of thousands of pending Roundup cases." Monsanto is asking the Supreme Court to decide whether the Ninth's Circuit's standards for the admissibility of expert witnesses is inconsistent with the high court's precedent and the Federal Rule of Evidence 702, which governs that issue.

Indeed, if the Supreme Court elects to review this case, their decision could have a wide impact on the future of all Roundup cases.  

The case is Monsanto v. Hardeman, case number 21-241, in the U.S. Supreme Court.  

If you or a loved one were exposed to Roundup and have since been diagnosed with non-Hodgkin lymphoma, click HERE for a free and no-obligation review of your case.  

2.     Will 2022 be the Year for More Opioid Settlements?

The United States has endured an opioid crisis that has destroyed hundreds of thousands of lives and financially burdened families as well as state and local governments. The facts are staggering: over 100 people die every day from opioid overdose; about one third of those prescribed opioids will misuse them; and, about 10% of those people will become addicted. All the while, Purdue Pharma, creator of OxyContin, as well as other opioid manufacturers, have made billions.

2021 saw Purdue Pharma plead guilty to charges that the company conspired to defraud the United States and violated the Food, Drug and Cosmetic Act, as well as anti-kickback laws. The plea deal included a guilty plea of three felony counts, an approved plan of bankruptcy of the company, and over $8 billion in penalties. The New York bankruptcy judge handling the case approved Purdue Pharma's Chapter 11 bankruptcy plan, including contentious opioid liability releases for the Sackler family, the owners of Purdue. However, just last month, a federal judge overturned this settlement putting the Sackler family’s fate as well as that of the entire bankruptcy in limbo. Purdue said it would appeal the decision.

In addition to the pending Purdue settlement, billions of dollars will be available in 2022 from large drug companies, pharmacies and other related parties through various settlements and judgment winding their way through the courts.  In fact, more than 3,300 lawsuits, largely brought by state and local governments, have been filed seeking to hold these companies responsible for the opioid abuse crisis. The core claim in these opiate cases is “public nuisance”. This theory contends that opioid addiction has largely been caused by easy and recklessly controlled access to opiates,  spreading addiction and burdening not only users but also their support networks, communities, and society at large.  

Numerous cases will begin in 2022. For example, West Virginia's suit against drugmakers is set to begin on April 4 in a bench trial in Charleston. Another bench trial before the state's mass litigation panel over cities' and hospitals' claims against drug distributors will start on July 5. The Florida attorney general's suit against Teva, McKesson and others is set to start on April 4, and the state of Washington's suit against Johnson & Johnson is starting on May 9. A trial in Dallas state court begins on Feb. 7, one in San Francisco federal court in April, and another in Pasco County, Florida, state court, on April 4.  

Just last month, pharmacy giants Walgreens and Walmart were found liable in federal court for their contribution to the opioid abuse epidemic in two Ohio counties. This first-of-its-kind verdict could serve as a harbinger for thousands of cities and counties that blame these companies for their part in the nation’s opioid crisis.

Recently, three drug distributors, AmerisourceBergen, Cardinal Health and McKesson as well as pharmaceutical giant Johnson & Johnson have agreed to pay a combined $26 billion to resolve thousands of state and local lawsuits provided there is sufficient participation of these various plaintiff entities. In exchange for this payment, the participating defendants, including states, counties and cities, would have to release any claims related to the opioid epidemic. The settlement payments would be paid over 18 years and apportioned to the defendants in a manner to be negotiated in order to fight the opioid crisis by providing addiction help, medical treatment, and education.

Although some parties believe the settlement is insufficient, at least 45 states as well as 4,012 counties and cities have agreed (or signaled their intent to agree) to the settlement. Notably Washington state and Pennsylvania have declined to participate. Washington Attorney General Bob Ferguson has called the settlement “woefully insufficient” and has brought suit against the nations three largest drug distributors for $38 billion. Other defendant representatives, such as Philadelphia District Attorney Larry Krasner, believe that the settlement would only cover a fraction of the epidemic’s financial toll. Krasner remark that: “We are not going to accept a settlement that is a sellout.”

To attempt to get more defendants on board, the deadline to accept the settlement terms has recently been extended from January 2nd to January 26th, 2022.   Peter Mougey, a plaintiffs' lawyer involved in the settlement, said there had been a "huge groundswell of support" and that he expected nearly 80% of local governments that sued to be on board.

Main Street Law Firm will continue to keep its clients and friends apprised of developments in the ongoing opioid litigation.  

3.      Will J&J Unit's Bankruptcy Protect it against Talc Liabilities in 2022?

Numerous 2021 multi-million dollar lawsuits have linked the use of talcum powder with ovarian cancer and mesothelioma and there are approximately 35,000 talc claims currently pending in the Talc MDL in Federal Court. While continuing to deny liability for devastating injuries to thousands of women, Johnson & Johnson agreed to stop selling its talc-based powder in the United States and Canada.

To add insult to injury, J & J is pursuing a strategy known in legal circles as the “Texas Two Step” authorized under Texas law.  Through this complicated corporate strategy, J & J hopes to transfer any talc related liabilities to a newly created company called LTL Management, LLC.  With its limited assets for plaintiff recovery, LTL would then file for bankruptcy, all the while protecting J & J’s major company assets.

A plaintiffs committee meanwhile has asked the New Jersey bankruptcy judge handling this case to reject a request to set up a talc claims trust fund. The committee claimed that the Chapter 11 case is "masquerading" as a legitimate bankruptcy in order to prevent the jury trial system from  finding J & J liable for a potentially massive tort liability.

Attorney Halli Cohn of Troutman Pepper stated: "I think the plaintiffs are going to fight this extraordinarily hard ... the reorganization to put all the liability into this one entity for J&J and declare bankruptcy. My instinct is that the outcome is ... that they're going to have to go forward with these cases."

The bankruptcy case is In re: LTL Management LLC, case number 21-30589, in the U.S. Bankruptcy Court for the District of New Jersey.

Main Street will continue to monitor this precedent setting case which could have huge ramification on future of corporate responsibility.  If you or a loved one has used talcum powder and developed cancer, we're here to help. Click HERE for a free and no-obligation review of your case.  

4.     PFAS Litigation Continues to Grow

Perfluoroalkyl and polyfluoroalkyl substances (PFAS), are man-made chemical compounds used in thousands of consumer products such as nonstick products, polishes, waxes, paints, cleaning products, and firefighting foam. PFAS are known as “forever chemicals” because the molecular bonds that form them can take thousands of years to degrade, meaning they accumulate both in the environment and in our bodies. These compounds can be ingested orally, absorbed through the skin, or inhaled through exposure to the compounds in the air. Studies have linked the chemicals to kidney and bladder cancer, as well as thyroid disease.

Due to these concerns, 3M, the largest manufacturer of PFAS, phased out production of the compounds in 2002. Several countries eventually banned any new production of PFAS-based products, including the US, Japan, European Union, Canada, and Australia.  

Attorneys predict that litigation over these forever chemicals will keep growing in 2022.  Jordan Connors of Susman Godfrey LLP, who represents governments suing over the chemicals, has stated: “There are a wide variety of ways that these chemicals can leach into the environment, and the litigation is expected to grow as more pathways of exposure are discovered.” Conners added: “But there are also class actions — a lot of class actions — involving private homeowners who have seen their home values typically reduced because of known PFAS exposures.”

One MDL in South Carolina federal court alleges that firefighting foam, called aqueous film forming foam (AFFF), made by various manufacturers including 3M, has contaminated drinking water. AFFF has been linked to a variety of health problems, such as high blood pressure and thyroid disease, according to court documents. The suits, both in the MDL and in other courts, are brought by states, municipalities and water authorities.

Under the newly promulgated Comprehensive Environmental Response, Compensation and Liability Act, the Biden administration has specifically announced a three-year, multiagency plan to start addressing PFAS by setting a timeline for limits in drinking water and naming some substances as hazardous. Moving away from the Trump era, the Biden administration is further restricting the manufacture of PFAS products with further regulations from the U.S. Environmental Protection Agency. Designating these chemicals as hazardous waste has given the EPA more power to hold companies accountable for discharging them.

As Conners remarked: "It would allow EPA to force them to investigate and remediate in areas where there have been prolonged exposures. It could also certainly have impacts on litigation where someone is trying to, for example, show that certain remediation is necessary. . . The Biden administration and the EPA, in particular, has certainly settled or signaled that they are going to be enacting stricter PFAS standards in the coming year."

Main Street Law Firm will continue to keep you apprised of this litigation. In particular, we are investigating PFAS in firefighting foam often used on military bases. If you are a veteran of a military base or resident who lived near a military base and developed cancer, you may be entitled to compensation without ever going to court. Click HERE for more information.  

5.     Paraquat MDL is Moving Rapidly in 2022.

As we’ve previously reported, exposure to Paraquat, a toxic herbicide, has been linked to Parkinson's Disease. Farmers and other agricultural workers who have regular exposure to Paraquat, have an increased risks of developing the debilitating disease. Paraquat is sold with restrictions in the U.S. but banned in Europe. Like Roundup discussed above, Paraquat is unimaginably harmful to people. It only takes 2.5 grams of the herbicide to constitute a fatal dose.

The first bellwether trial in the Paraquat Multidistrict Litigation (MDL) has now been set for November 15, 2022.  The plaintiffs in this case allege that the manufacturers of Paraquat, Chevron USA Inc. and Syngenta Crop Protection LLC, sold the dangerous pesticide even though they were aware of its link to Parkinson's disease for many years.

Plaintiff counsel in this first case, Julia Merritt of Beasley Allen, states that U.S. District Judge Nancy J. Rosenstengel has been interested in moving the cases forward ever since the Judicial Panel on Multidistrict Litigation assigned her the cases in June of last year. "Parkinson's is a progressive disease," Merritt said. "[For] the clients, time is not on their side. So, we really need to push the cases forward for them."

Defense counsel Halli Cohn commented that in order to ensure that only meritorious cases proceed through the MDL process, Judge Rosenstengel has introduced an "extensive plaintiff assessment questionnaire.” "And so the defense perspective, clearly, is that there needs to be an avenue for you narrowing the cases, so that we said that you're not dealing with so many claims that don't have merit," Cohn said.

The case is In re: Paraquat Products Liability Litigation v. Syngenta Crop Protection LLC et al., case number 3:21-md-03004, in the U.S. District Court for the Southern District of Illinois.

If you or a loved one were exposed to Paraquat and have since been diagnosed with Parkinson’s Disease, click HERE to fill out the very short intake form and a legal professional will contact you for a free and no-obligation review of your case.  

6.     Juul Bellwether Trials to Start in 2022.

The extraordinary growth of JUUL drew a lot of critical attention centering on its marketing tactics and lack of appropriate warning labels. Not only did JUUL target underage audiences, but it also failed to have the appropriate warning labels notifying users of the nicotine level and addictive nature of the product. With a higher nicotine concentration than combustible cigarettes, “juuling” can leave consumers more susceptible to nicotine addiction than combustible cigarettes. Neither the high nicotine level nor the addictiveness of nicotine was originally mentioned in the warning labels on the product.

In response, legal action has been taken on behalf of the teens that have become addicted to the nicotine in JUUL and the physical harm that has come from the consumption of vaporized nicotine salts. The first bellwether trials in the MDL consolidated in 2019 accusing Juul Labs Inc. and Altria Group of misrepresenting the safety of e-cigarettes are set to start on April 18 and June 27, 2022 according to Joseph VanZandt of Beasley Allen, who represents one of the plaintiffs.

There are two more trials scheduled to start later this year in September and November. School districts, government entities and tribes have also brought suits in the MDL, which comprises nearly 3,000 cases.

Juul and Altria are battling claims that they misleadingly told the public that e-cigarettes are safer than traditional cigarettes, fanning the flames of a youth vaping epidemic. The products were designed to give users higher doses of nicotine than traditional cigarettes, according to the hundreds of plaintiffs in the multidistrict litigation.

In addition to the MDL, there is also consolidated litigation in California state court, and 14 attorneys general have filed suit.

The U.S. Food and Drug Administration has still not made a decision on whether Juul products can remain on the market, even though it has ordered thousands of other e-cigarettes off store shelves."That kind of looms large over the entire litigation as to whether or not and when that approval may come," VanZandt said.

The multidistrict litigation is In re: Juul Labs Inc. Marketing, Sales Practices and Products Liability Litigation, case number 3:19-md-02913, in the U.S. District Court for the Northern District of California.

If you or someone close to you has been hospitalized for a lung related issue or are struggling with a nicotine addiction from a JUUL device click HERE. for more information. You may be eligible for compensation for the damages caused by JUUL without ever having to step foot in court.  

7.     3M Bellwether Trials Continue in 2022.  Global Settlement May Be on the Horizon.  

Thousands of military personnel were given Dual-Ended Combat Arms Earplugs between 2003 and 2015. The earplugs were designed so that they could be used on one end as traditional earplugs (yellow end) or flipped around (black or green end) to protect against louder noises such as explosions and gunfire. The Department of Justice alleged that 3M, the distributor of the earplugs, knew the earplugs did not fit well as they were too short or would loosen in some users' ears to the point that they were unable to effectively mitigate excessive noise thereby causing the exact type of ear damage they were expressly designed to alleviate. There were additional allegations that 3M manipulated test results in order to comply with government standards. After 3M settled the government’s case against it for $9.1M, thousand of civil suits followed.

U.S. District Judge M. Casey Rodgers was assigned to oversee the earplug MDL which was centralized in Florida and has turned out to be the largest multidistrict litigation ever with over 272,000 claims now pending. Most of these cases are on a special administrative docket and not yet completely vetted. This has resulted in an "unprecedented backlog" of cases requiring Judge Casey to aggressively set rapid runs of bellwether trials, even recruiting other federal judges to hold sometimes-simultaneous trials.

2021 saw nine such bellwether jury trials with plaintiffs racking up five wins and monetary damages of over $50 million. There are already at least seven trials scheduled for 2022.

Although plaintiffs have won five out of the nine trials, the most recent trial, decided last month, resulted in a defense verdict when a federal jury in Florida rejected a U.S. Army veteran’s hearing-loss claims. 3M said in an emailed statement at the conclusion of the trial: “We are pleased another jury has sided with 3M and found that the CAEv2 product was safe and effective to use. . .. This decision is further evidence that plaintiffs will face significant challenges as they litigate the cases going forward.”

Lead counsel for service member plaintiffs Bryan Aylstock of Aylstock Witkin Kreis & Overholtz, PLLC; Shelley Hutson of Clark, Love & Hutson GP; and Christopher Seeger of Seeger Weiss LLP stated that: “Despite the setback, a majority of juries so far “have found that 3M’s earplugs were defective and that they are responsible for causing irreparable hearing damage to those who served our country. Additionally, every jury that could award punitive damages has thus far done so, underscoring the strength of these cases and the severity of 3M’s misconduct.”

As for a global settlement, Defense counsel Maura Monaghan of Debevoise & Plimpton LLP stated: "It's not in any way a threat to 3M's solvency or ongoing business or anything like that. They can handle verdicts this size. But in mass litigation so sprawling, it's nigh impossible to knock out all claims in one blow, and that wears on defendants.”

No mass tort that Main Street has covered has seen so many bellwether trials in such a relatively short period of time. It's clear that Judge Rodgers is set on having 3M understand the risks they are taking with pursuing additional trials and the likelihood of a global settlement which covers a large percentage of the meritorious cases out there is inevitable.

If you or a loved one was a U.S. military service member, veteran or contractor between 2003 and 2015 who was diagnosed with partial or total hearing loss or suffer from tinnitus, you may have a claim against 3M.  Click HERE for a free and no-obligation review of your case.

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