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After a pandemic-induced quiet year in 2020, last year saw a lot of action on the mass tort front. In 2021, we saw $11 billion in Roundup settlements and over a dozen bellwether test trials in various MDL class action lawsuits.
Let’s talk about what we can expect in 2022 in the mass tort class action lawsuits with the highest predicted settlement payouts.
In May, the MDL judge formally rejected Bayer’s controversial global settlement that would have stayed future Roundup lawsuits. Bayer quickly transitioned to “Plan B” and spent most of 2021 working on settling large blocks of existing Roundup lawsuits while simultaneously announcing plans to pull glyphosate-based Roundup from consumer shelves.
By November, Bayer announced that it had settled 98,000 Roundup lawsuits. Although these settlements account for nearly 80% of all pending Roundup claims, there are still around 26,000 active Roundup lawsuits.
This does not mean that the Roundup litigation is over. It may take years or even decades for Roundup users to develop lymphoma. This means Bayer could be facing a “long tail” stream of new Roundup lawsuits for the next 20 years.
Bayer’s only hope for preventing future Roundup liability is based on winning an appeal to the Supreme Court in the Hardeman case. Hardeman was the very first Roundup bellwether trial and it resulted in a massive verdict. Bayer has been appealing Hardeman hoping to win a game-changing legal argument. The Supreme Court has invited the Biden administration to
Bayer is arguing that the Roundup claims should be preempted by federal law because the EPA has found that cancer warnings are not required for glyphosate. If Bayer can get an appellate court to accept this legal argument, it would effectively block many future Roundup claims.
By the start of 2021, the 3M Combat Arms Earplugs litigation had already become the largest consolidated mass tort in U.S. history. Right now there are 272,416 individual lawsuits against 3M alleging that the company’s defective earplugs caused hearing damage.
This year gave us 9 rounds of bellwether test trials in the 3M earplugs litigation featuring the claims of eleven plaintiffs. Nine bellwether plaintiffs have won their claims against 3M and been awarded damages. The average damages awarded to these cases is over $4 million, even when you factor in the losses.
The next two trials start on January 10, 2022. The first 4 months of 2022 will see a new group of 3M earplug bellwether trials.
The Paraquat lawsuits were consolidated into a new MDL earlier this year and there are now over 300 paraquat lawsuits pending in the MDL. More than half of the pending paraquat lawsuits were filed between April and October of 2021. The judge in the Paraquat MDL has developed a Plaintiff’s Assessment Questionnaire(PAQ) for all incoming plaintiffs to the litigation.
Over the first few months of 2022, we will probably see the number of Paraquat lawsuits in the MDL double or possibly triple as new cases get filed across the country.
In August, the MDL judge, Nancy Rosentengel, indicated that the first Paraquat bellwether trials would probably start around November 2022. However, this could easily get pushed back into 2023 based on how things develop.
A new wave of cases was recently transferred into the Paraquat MDL, bringing the total number of pending Paraquat cases up to 736. A motion to dismiss was filed by the defendants back in November claiming that a large number of these cases were time-barred under the applicable statute of limitations. Plaintiffs filed a memorandum in opposition to this motion and the MDL judge recently set a deadline of January 10, 2022 for any replies in support.
The Elmiron MDL in the District of New Jersey now has 672 pending cases. The first bellwether test trials in the Elmiron MDL will start in January 2023. In October, the MDL postponed plans for a “science day” in which both sides were going to educate the court on the scientific evidence in support of their positions.
The MDL judge has established detailed protocol and rules for how the parties will go about selecting cases for the bellwether trials set for January 2023. An initial pool of 20 cases will be selected as bellwether “discovery cases.” Ten will be picked by the plaintiffs and ten by the defense. Once the 20 cases are selected, fact discovery in these cases will start immediately. Three of the 20 cases will be selected for the opening bellwether trials in January 2023.
Don’t expect a ton of fireworks from the Elmiron litigation in 2022. Our lawyers expect the number of pending cases to double over the course of the year.
But 2022 could be the last full year for the Elmiron cases. Given the strength of the scientific evidence linking Elmiron to macular eye damage, we think a global settlement will probably occur after the first bellwether trials.
The Paragard IUD lawsuits allege that a defect in the IUD caused the retainer arms to break off inside the body during removal. The Paragard litigation really got off the ground and built up some major momentum during 2021. The Paragard lawsuits in federal court were consolidated into a new Paragard MDL under Judge Leigh Martin in the Northern District of Georgia.
The Paragard litigation has grown fairly quickly. There are now 642 individual plaintiffs with pending cases in the Paragard MDL.
The primary defendant in the litigation is Teva Pharmaceuticals. Teva’s defense team has been aggressively fighting every little detail in the litigation so far but has had little success.
The Paragard litigation will really start to take shape in 2022. We can expect to see the number of pending cases in the MDL grow at a steady pace throughout the year. We can also expect the first major scheduling order and bellwether select protocol to be issued in the first months of the year.
Firefighting Foam (AFFF)
The AFFF firefighting foam lawsuits allege that exposure to aqueous film-forming foam (“AFFF”) can cause certain types of cancer. All firefighting foam lawsuits in federal court were consolidated into a new MDL in the District of South Carolina. As of November 2021, there are 1,806 individual plaintiffs in the firefighting foam MDL.
The AFFF firefighting foam litigation has been comparatively slow-moving from the very start and 2021 was no exception. The MDL (In re: Aqueous Film-Forming Foams (AFFF) Prod. Liab. Lit. – MDL No. 2873) was created way back in December 2018. The first case management order in the MDL was docketed on January 2, 2019. Three years later and we are still trudging through the discovery phase.
We think 2022 could potentially be a breakout year for the AFFF litigation to finally build forward momentum. A motion for summary judgment was recently filed by the defense but it will most likely be denied. The stream of incoming new cases will continue and by the summer we could have a bellwether trial schedule.
The hernia mesh lawsuits involve claims that mesh implants used in hernia repair surgeries were defective and resulted in complications and other injuries. The hernia mesh litigation involves 3 different MDLs, each involving different hernia mesh products made by different medical device companies. The 3 hernia mesh MDLs are:
- Bard Hernia Mesh MDL (In re: Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Products Liability Lit. – MDL-2846). This is the largest of the 3 with around 12,000 cases.
- Ethicon Hernia Mesh MDL: (In re: Ethicon Physiomesh Flexible Composite Hernia Mesh Products Liability Lit.– MDL-2782). This has 3,500 cases and is the oldest of the hernia mesh MDLs.
- Atrium Hernia Mesh MDL: (In re:Atrium Medical Corp. C-Qur Mesh Products Liability Litigation – MDL-2753) the smallest and most recent of the hernia mesh MDLs.
The hernia mesh MDLs have been around for a while compared to other mass torts. More than any other mass tort, the hernia mesh litigation really got sidetracked by the pandemic shutdowns in 2020. Progress in the litigation started moving forward again in 2021, but with some disappointing initial results.
The first bellwether trial in the C.R. Bard hernia mesh MDL was held in October, but it ended in a disappointing loss for the plaintiff. The defense verdict was not a total surprise, however, as the case was picked by the defense. The next bellwether trial will feature a case picked by the plaintiffs and is set to start in January.
The Ethicon Physiomesh may be in a different category than Bard or Atrium C-Qur. A global settlement has been agreed to in the Ethicon Physiomesh product liability litigation. Unfortunately, we don’t know how much the total settlement payout is or what individual plaintiffs will receive because the terms of the settlement are confidential. The settlement agreement was filed under seal in September. (An odd situation where only some lawyers in the litigation are apprised of the settlement amounts that were reached, right?)
One thing we know is that the settlement arrangement calls for a court-appointed special master to administer the claims and oversee the settlement payout process. The court has already agreed to the appointment of Washington D.C. lawyer, Ellen Reisman, to serve as special master. Reisman will be responsible for determining which claims are eligible to take part in the settlement and for awarding a point score to each case. The point score will rank the cases into settlement tiers, with those in the higher tiers receiving bigger payouts.
CPAP Machine Recall
The CPAP machine recall lawsuit against Philips is one of the new mass torts that sprung up during 2021. Philips recalled millions of CPAP and BiPAP devices used for sleep apnea after discovering that the sound abatement foam in the machines was causing users to inhale toxic chemicals. Our firm has gotten over a thousand calls and has signed up hundreds of plaintiffs. CPAP lawsuits followed and continue to get filed.
In October, just a few months after Philips announced the recall, there were enough CPAP recall lawsuits in federal courts to prompt the JPML to consolidate them into a new class-action MDL. The Philips CPAP Recall MDL was established in the Western District of Pennsylvania under Judge Joy Flowers Conti. We are still in the infancy of this MDL, with the first status conference scheduled for December 15.
The settlement payouts in CPAP cases will really depend on the type of injuries and whether they can be linked to these defective CPAP machines.
Injectafer is an iron supplement injection used to treat people with iron deficiency anemia who are not able to tolerate oral supplements. In 2021, a growing number of Injectafer lawsuits were filed across the country by people who received Injectafer iron replacement shots and suffered hypophosphatemia (HPP) injuries as a result. HPP is an electrolyte disturbance that causes an abnormally low level of phosphate in the patient’s blood.
The Injectafer lawsuits allege that the manufacturers of Injectafer have known for years that it could cause severe HPP in certain patients. Despite clear knowledge that Injectafer caused severe HPP, the drug was brought to the U.S. market without any adequate warning labels or warnings to the medical community.
Approximately 75 Injectafer lawsuits have been filed so far in federal court and another 80 are pending in state courts. Many more Injectfer lawsuits will likely be filed in 2022. An MDL has not yet been created for the Injectafer lawsuits, but that could happen in 2022.
Infant Formula NEC Lawsuits
A number of product liability lawsuits were filed in 2021 against the manufacturers of Similac and Enfamil by parents of premature babies who developed a dangerous infection called necrotizing enterocolitis (NEC). Scientific research has shown that giving cow-milk-based formulas to premature babies can increase their risk of NEC.
The NEC formula lawsuits allege that the formula makers knew that their products were dangerous to preemies and deliberately failed to warn about the risk of NEC. The primary defendants in these NEC lawsuits are Abbott Laboratories Inc. and Mead Johnson Nutrition.
There are not enough NEC formula lawsuits pending right now for consolidation into a new MDL. However, interest in NEC lawsuits against the makers of Similac and Enfamil started to peak this year. There is reason to anticipate that the number of NEC lawsuits will increase rapidly in 2022. If that happens, we could very well see a new MDL consolidation of the NEC lawsuits, with the Southern District of Illinois being the most likely venue.
It may be that in 2022 we could see the talcum powder lawsuits come to some type of conclusion. There are around 35,000 cases pending in the Talcum Powder MDL. In May, J&J paid $100 million to settle a large block of talcum power cases, leading many to believe that a global settlement was forthcoming. That global settlement has yet to materialize.
The last few months of 2021 have witnessed a flurry of verdicts in talcum powder test trials. Since August, there have been four talcum powder trials. J&J won defense verdicts in 3 and the 4th resulted in a $26.5 million verdict for the plaintiff. Those are tough losses but the average talc powder verdict is still through the roof. Before this, however, J&J had suffered disastrous losses in pretty much all the talcum powder trials.