Cosmetic Talc Litigation Media Coverage June 24, 2016

Client Attorney Privileged/Attorney Work Product/At Request of Counsel

US Coverage

1. The Top Product Liability Cases Of 2016: Midyear Report

   Jun 24, 2016 | Law 360

   By Emily Field
   
   
   ... Johnson & Johnson was hit by two back-to-back losses in St. Louis over the alleged link between its talcum baby powder and ovarian cancer, resulting in verdicts totaling $127 million in the first such trials, a potential sign of trouble ahead as thousands more similar suits are being filed.

Client Attorney Privileged/Attorney Work Product/At Request of Counsel

US Coverage

1. The Top Product Liability Cases Of 2016: Midyear Report

   Jun 24, 2016 | Law 360

   By Emily Field

   he first bellwether trial in the General Motorsignition switch litigation came to an unusual end, a Texas jury meted out an attention-grabbing $$497.6 million verdict to patients who claimed injuries from hip implants made by Johnson & Johnson’s DePuy Orthopaedics Inc. unit, and Coca-Cola prevailed against Pom Wonderful’s claims that it stole business by fooling consumers about the content of its juice.
   
   Here, Law360 recaps the year's most significant product liability cases so far.
   
   GM Speeds Through Ignition Switch Bellwether Trials
   
   The first bellwether trial over the ignition-switch defect suddenly unraveled in January, after the Oklahoma man blaming GM for his Saturn Ion accident withdrew his case following bombshell accusations by the carmaker that he’d lied on the stand.
   
   In an unusual turn of events, plaintiff Robert Scheuer dropped his claims in the multidistrict litigation consolidated in New York federal court that a faulty ignition switch prevented his vehicle's airbag from deploying in his May 2014 accident after GM said that he’d lied to the jury about the facts behind his eviction from his house.
   
   GM went on to win the second of the bellwether trials in March, after a two week-plus trial that had its own share of twists and turns: Two jurors who couldn’t keep their eyes open were dismissed.
   
   Since then, GM has settled the third case — this one brought by a woman whose husband died from injuries from an accident while he was driving his 2006 Saturn to work in 2013 — and the fourth bellwether plaintiff agreed to dismiss his suit, which otherwise would have gone to trial in July.
   
   Findings that GM knew for years of the ignition switch’s propensity to slip out of the “Run” slot left the carmaker on its heels. In May 2014, after a frantic six-week investigation, Jenner & Block LLP Chairman Anton Valukas published a 325-page report detailing what had gone wrong. That and a statement of facts in GM's $900 million settlement and deferred-prosecution agreement with the U.S. Department of Justice are providing bedrock for the trials.
   
   The next case, that of a woman who claims that a June 2011 crash that caused a brain injury and bone fractures, is set to start in the fall and will be the third bellwether to actually go to trial.
   
   Lead attorneys for the drivers are Robert C. Hilliard of Hilliard Munoz Gonzales LLP, Steve W. Berman of Hagens Berman Sobol Shapiro LLP and Elizabeth J. Cabraser of Lieff Cabraser Heimann & Bernstein LLP.
   
   GM is represented by Richard Godfrey, Mike Brock and Barry Fields of Kirkland & Ellis LLP and Kyle Dreyer and Wendy May of Hartline Dacus Barger Dreyer LLP.
   
   The case is In re: General Motors LLC Ignition Switch Litigation, case number 1:14-md-02543, in the U.S. District Court for the Southern District of New York.
   
   J&J Talcum Powder Trial Losses Mount
   
   Johnson & Johnson was hit by two back-to-back losses in St. Louis over the alleged link between its talcum baby powder and ovarian cancer, resulting in verdicts totaling $127 million in the first such trials, a potential sign of trouble ahead as thousands more similar suits are being filed.
   
   The women in these cases claimed that they’d used J&J's flagship product on their vaginal area and that the talc had migrated to their ovaries and lodged there, eventually causing cancer — and that J&J had long known about that risk, but didn’t warn its customers.
   
   In the most recent trial, a jury in May awarded $55 million to Gloria Ristesund, 62, after four weeks of trial and about a day of deliberations. She’d said she was diagnosed with endometrioid ovarian cancer, affecting the lining of her ovaries, in 2011.
   
   And in February, a jury awarded $72 million to the estate of Jacqueline Fox, who died of ovarian cancer after using the body powder for decades. It was reportedly the first time the company has been ordered to pay damages over the link between cancer and the talc used in its products.
   
   “Those two verdicts have huge significance in terms of assessing how a jury will react to the evidence concerning J&J’s knowledge of and response to the documented dangers of talcum powder,” said James Morris of James A. Morris Jr. of The Morris Law Firm. “This presents a significant future litigation problem for J&J because they’ve done nothing to control the growth of this area of litigation by admitting any responsibility or placing a warning on their product.”
   
   During trial, J&J attacked the science behind claims that talc is linked to ovarian cancer — while it’s been found on ovaries and tumors, the company contended that doesn’t necessarily prove causation. And it’s not certain that the talc came from baby powder, since talc is in such wide use, the company argued.
   
   However, the plaintiffs countered with J&J’s own documents showing that for decades, it was aware of the potential risk and repeatedly opted not to warn consumers. It was that evidence that caused the jurors to come back with such large verdicts, Morris said.
   
   The company has said it will appeal both verdicts. Two more trials are slated for September in New Jersey and St. Louis.
   
   Ristesund is represented by Allen R. Smith Jr. of the Talc Litigation Group and Ted G. Meadows of Beasley Allen Law Firm.
   
   Fox’s estate is represented by Jere L. Beasley, Ted G. Meadows, David P. Dearing and Danielle Ward Mason of Beasley Allen Law Firm, Stephanie Rados, James G. Onder, Michael J. Quillin and W. Wylie Blair of Onder Shelton O’Leary & Peterson LLC, R. Allen Smith Jr. of The Smith Law Firm, and Timothy W. Porter, Patrick C. Malouf and John T. Givens of Porter & Malouf PA.
   
   Johnson & Johnson is represented by Christy D. Jones of Butler Snow LLP.
   
   The cases are Tiffany Hogans et al. v. Johnson & Johnson, case number 1422-CC09012, and Gloria Ristesund v. Johnson & Johnson, case number 1422-CC09012-01, in the 22nd Judicial Circuit of Missouri.
   
   Half-Billion Dollar Verdict In J&J Bellwether Trial
   
   A Texas jury in March handed down a headline-grabbing $497.6 million verdict in the second bellwether trial the multidistrict litigation over allegedly defective Pinnacle hip prosthetics manufactured by J&J’s DePuy Orthopaedics unit.
   
   While J&J had won the first trial in October 2014, this time the plaintiffs put forward the consolidated claims of five patients alleging problems from the devices.
   
   Grouping plaintiffs’ claims like that may prove to be a model for speeding along mass tort claims, said Max Kennerly of Kennerly Loutey LLC.
   
   “Something like this gives you a much more expedient process,” he said. “One of the purposes of a bellwether is to determine what kinds of cases you can win — some cases are worth more and some are harder to prove.”
   
   After a two-month trial and days of deliberations, a Dallas jury found in favor of all five plaintiffs in the trial, delivering a verdict that included $360 million in punitive damages, although those may be subject to $10 million statutory cap for punitive damages in the state. 
   
   The trial had involved the consolidated claims of plaintiffs Margaret Aoki, Jay Christopher, Donald Greer, Richard Klusmann and Robert Peterson, who all underwent hip arthroplasty, where a hip joint is replaced with a prosthetic.
   
   In their case, the prosthetics were DePuy Pinnacle metal-on-metal devices, which they alleged cause serious health problems, including inflammation of surrounding tissues, bone erosion and metallosis, a toxic condition allegedly caused when the device’s components grind against each other and shed metal debris into the bloodstream.
   
   The Texas federal judge overseeing the multidistrict litigation has recently picked seven bellwether cases for trial, although J&J has asked that the cases be put on ice pending its appeal of the verdict to the Fifth Circuit.
   
   J&J and DePuy have argued that they were prejudiced by critical pieces of evidence introduced during trial, including “references to Saddam Hussein’s ‘henchmen,’ unsupported speculation that plaintiffs might develop cancer as a result of their Pinnacle implants,” as well as lawyers and expert witness who have testified on behalf of a number of companies with no connection to the litigation.
   
   The plaintiffs are represented by W. Mark Lanier of The Lanier Law Firm, Larry Boyd, Wayne Fisher and Justin Presnal of Fisher Boyd Johnson & Huguenard LLP, Richard J. Arsenault ofNeblett Beard & Arsenault and Jayne Conroy of Simmons Hanly Conroy.
   
   Johnson & Johnson and DePuy are represented by Michael V. Powell and Seth M. Roberts ofLocke Lord LLP and John H. Beisner, Stephen J. Harburg, Jessica Davidson Miller and Geoffrey M. Wyatt of Skadden Arps Slate Meagher & Flom LLP.
   
   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.
   
   Coke Wins Pomegranate Labeling Suit
   
   Coca-Cola squeezed out of Pom Wonderful’s claims that the soda maker was on the hook for $77.5 million for stealing business by fooling customers about the contents of a pomegranate juice product that was mostly apple and grape juices — marking a victory for companies facing a wave of misleading label suits.
   
   In March, a California federal jury found after less than a day of deliberations that Pom hadn’t proved by a preponderance of evidence that the packaging or label of Coca-Cola unit Minute Maid’s “Enhanced Pomegranate Blueberry Flavored 100% Juice Blend” would mislead customers into thinking it had more than a half-percent of pomegranate and blueberry juice combined.
   
   Pom had first sued in September 2008, saying the name and labeling of Coca-Cola’s product was misleading under the Lanham Act — the federal trademark law that business rivals can also use to target what they see as unfair competition or false advertising practices.
   
   While Pom has taken other competitors to court, it hasn’t found much success.
   
   In 2011, a federal jury in California found that Pom did not prove that the advertising and labels onOcean Spray's pomegranate cranberry juice drink were misleading because it contained a only a trace amount of pomegranate juice.
   
   A year later, another California federal jury had found that Welch deceptively marketed a white grape and pomegranate juice that contained little pomegranate, but also found that Pom was not injured by that intended deceit.
   
   After the verdict in the instant case was read, U.S. District Judge James Otero told them that it had been “an extremely important case” for both Pom and Coca-Cola with unique legal issues that at one point went to the U.S. Supreme Court before returning to federal court.
   
   In that July 2014 decision, the nation’s highest court reversed a Ninth Circuit ruling that federal regulations preclude Pom Wonderful’s Lanham Act claim against Coca-Cola, finding that U.S. Food and Drug Administration rules on labeling can coexist with the federal false advertising statute.
   
   Pom is represented by Forrest A. Hainline III of Goodwin Procter LLP and Kristina M. Diaz, Matthew D. Moran and Brooke S. Hammond of Roll Law Group PC.
   
   Coca-Cola is represented by Steven A. Zalesin, Travis J. Tu and Rachel B. Sherman ofPatterson Belknap Webb & Tyler LLP, Jeffrey A Rosenfeld of DLA Piper LLP and Shani Thome of The Coca-Cola Company
   
   The case is Pom Wonderful LLC v. The Coca-Cola Co. et al., case number 2:08-cv-06237, in the U.S. District Court for the Central District of California.
   
   NFL Concussion Settlement Objectors Get Benched
   
   At the beginning of this month, the Third Circuit declined to hear once more an objection to the enormous uncapped class action settlement with the NFL over the effects of head injuries — potentially permanently benching a group of of concussion class members who say the settlement doesn’t do enough for those with the degenerative brain condition known as CTE.
   
   A unanimous three-judge decision in April had affirmed class certification for ex-players who suffer from a range of ailments linked to repeated head injuries and concussions. But another group of former players had asked the full Third Circuit to reevaluate that ruling.
   
   The Third Circuit on June 1 turned down two requests for a rehearing en banc, saying they failed to gain the vote of a majority of the judges in the circuit with regular service time nor did any of the concurring judges ask for rehearing.
   
   “For the NFL, it was critical to settle the concussion lawsuit both based on extremely broad tort damages exposure and the reputational exposure to the league,” said Marc Edelman, a professor of law at Baruch College's Zicklin School of Business.
   
   U.S. District Judge Anita Brody last April approved the uncapped settlement, which could end up paying out close to $1 billion. The NFL reached the deal after it was hit with suits by about 5,000 former players seeking damages for concussions and other neurological conditions allegedly caused by repeated head impacts during their playing days.
   
   However, the settlement doesn’t preclude suits by NFL players on different grounds, or suits from college, high school or recreational players against the makers of football helmets, Edelman caution.
   
   “This always elucidates the extra importance of placing proper warnings and disclaimers on all helmets about the risks of concussion and potentially CTE that could arise from substantial contact,” Edelman said.
   
   Currently chronic traumatic encephalopathy, or CTE, can only be diagnosed by autopsy and the objectors had said that it’s been found in a number of now-deceased players, some of whom passed away after the cut-off date for recovery.
   
   The objectors are represented in the appeal by MoloLamken LLP, Hangley Aronchick Segal Pudlin & Schiller and Lynn Pinker and Cox.
   
   The settling plaintiffs are represented by Seeger Weiss LLP, Anapol Schwartz Weiss Cohan Feldman & Smalley PC and Podhurst Orseck PA.
   
   The NFL is represented by Paul Clement of Bancroft PLLC, Brad S. Karp, Theodore V. Wells Jr., Beth A. Wilkinson, Bruce Birenboim and Lynn B. Bayard of Paul Weiss Rifkind Wharton & Garrison LLP and Judy L. Leone and Robert C. Heim of Dechert LLP.
   
   The rehearing petitions are In re: National Football League Players' Concussion Injury Litigation, case numbers 15-2217 and 15-2234, in the U.S. Court of Appeals for the Third Circuit.
   
   The other objections are case numbers 15-2206, 15-2230, 15-2272, 15-2273, 15-2290, 15-2291, 15-2292, 15-2294, 15-2304 and 15-2305, in the U.S. Court of Appeals for the Third Circuit..
   
   The objections are In re: National Football League Players' Concussion Injury Litigation, case numbers 15-2217 and 15-2234, in the U.S. Court of Appeals for the Third Circuit.

   http://www.law360.com/articles/809999/the-top-product-liability-cases-of-2016-midyear-report-
   

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