Uncovering the Latest Trends in MDL Case Filings: A Comprehensive Review

by Robert Wilson | Last updated Jul-21-23

H1: Uncovering the Latest Trends in MDL Case Filings: A Comprehensive Review

This comprehensive analysis examines the latest trends in multidistrict litigation (MDL) case filing, focusing on several prominent mass torts. The article highlights key updates and developments in each case, shedding light on their respective progress. 

The featured cases include the Tylenol autism class action lawsuit, the hair relaxer litigation, the hernia mesh mass tort involving C.R. Bard and Covidien, the talcum powder lawsuit against J & J, the Camp Lejeune water contamination lawsuits, and the Tepezza hearing loss lawsuits against Horizon Therapeutics. 

The analysis provides an overview of pending cases, filing trends, settlement negotiations, scientific evidence, potential outcomes, and the overall significance of these litigations.

H2: In Re: Acetaminophen Litigation: Could This Be the Largest Mass Tort in History?

In the most recent update, the anticipation of a swift resolution to Daubert challenges is dispelled, as a Daubert hearing, scheduled for December 7, 2023, is confirmed. However, this hearing will proceed without the presence of witnesses.

Simultaneously, attention is drawn to acetaminophen lawsuits in state court, particularly one case in Madison County, Illinois. Although progressing at a slower pace compared to federal court proceedings, a timeline has been established for the presentation of arguments on dismissal requests. 

The plaintiff is required to submit a response by December 12, 2023, with the defendants slated to provide a reply brief by January 12, 2024. 

As of November 1, 2023, all Daubert briefs have been officially filed, addressing the critical issue of admissibility of scientific expert testimony. 

With three rounds of briefing, encompassing several thousand pages, the stage is set for Judge Cote to conduct hearings where arguments on motions will be considered, and there is the potential for direct input from the involved expert witnesses.

In terms of case statistics, the tally of pending cases is soaring with an astonishingly steep upward trajectory:

• As of November 16, 2023: There were 58 new cases, signifying a meager 15.14% variation in comparison to the preceding month.

• As of October 16 2023: It increased by 118, representing a 44.53% change compared to the previous month.
• As of September 15, 2023: There were an increase of 78 cases which was a 29.32% change as compared to the previous month.

As for the total pending and historical cases:

• As of November 15, 2023: The cumulative count of pending cases had reached 441, contributing to the historical dataset of 489 cases.

• As of October, 2023: There were a total of 383 pending cases making the historical data to 424 cases.  
• As of September 15, 2023: There were 265 pending cases, while the historical number of cases were at 291.

On another note, a motion to dismiss a California negligent misrepresentation claim was granted due to the plaintiffs’ failure to allege an affirmative misrepresentation as required by California law. However, a motion to dismiss a Nevada negligent misrepresentation claim was denied because Nevada law allows for such claims to be plead under a theory of omission, and the plaintiffs adequately pleaded an omission. 

The parties have reached an agreement about which states’ laws may recognize a claim for negligent misrepresentation by omission as to all but four states. As a result, it was ordered that negligent misrepresentation claims under the laws of Arkansas, California, Colorado, Idaho, Indiana, Kentucky, North Carolina, North Dakota, Tennessee, and Texas are dismissed from each Member Case pending in this MDL.

Both the plaintiffs and the defendants were required to write a letter to the judge that includes their recommendation concerning the sequence in which the Court should handle any motions by the defendants to exclude an expert report from the plaintiffs’ experts, and their argument regarding which of the motions pertaining to the parties’ expert reports should be considered together, based on their overlapping subject matter. 

J&J’s motion to dismiss these cases alleging acetaminophen link to ASD-ADHD on grounds of preemption was denied back in April, which was a huge win for plaintiffs. J&J moved for certification of an interlocutory appeal, but the company’s request was denied. The ruling would be appealed immediately if the certification was granted. The judge’s ruling on Daubert is a huge deal, and it will all be in the hands of one person, Judge Cote.

Overall, the Tylenol autism lawsuits are proceeding, and the outcomes of the ongoing legal proceedings could shape the future trajectory of this case as the most monumental mass tort in history. Although it has the potential to make a big impact in the legal field, its ultimate significance will be determined through the due process of the court.

H3: Hair Relaxer Litigation: Plaintiff’s Gaining Clarity and Momentum

The hair relaxer class action lawsuit continues to evolve with new updates and developments. 

In a major win for Plaintiffs, Judge Rowland, overseeing the Hair Relaxer MDL in the Northern District of Illinois, rejected the majority of Defendants’ Motion to Dismiss on November 13, 2023, particularly dismissing the claim preemption argument. 

Following the ruling and the establishment of a Short Form Complaint and Service Order in September, the litigation is progressing swiftly, surpassing the typical pace for MDLs formed in February 2023. 

The total filings are expected to exceed 10,000 by year-end, although the resolution of these cases is anticipated to extend until 2017. Notably, attention is advised on cases related to the two viable cancers: uterine and ovarian cancer.

Claims, spanning negligence to warranty breaches, were permitted to advance, rejecting preemption arguments. The court dismissed fraud-based claims but upheld claims of unfair conduct. Warranty claims met standards, and unjust enrichment and derivative claims survived.

The Plaintiff’s Steering Committee seeks 11% of gross settlements for collective benefits and common costs in hair relaxer cases. Concerns arise about attorneys’ fees, but the focus is on maximizing victim compensation.

In a separate ruling, Judge Rowland allowed over 8,000 hair relaxer lawsuits to proceed, supporting claims of negligence, defective design, and failure to warn. L’Oreal and Revlon maintain product confidence, and smaller cosmetics companies, including some in India, are implicated. Lead attorneys assert the ruling supports the link between products and cancer.

In terms of filing trends, the hair relaxer class action lawsuit has demonstrated am abrupt rise in the number of pending cases – 

• As of November 16, 2023: A total of 1971 fresh cases were documented, indicating a whopping 32.87% increase when contrasted with the previous month. The overall tally for its historical case is at 8026.

• As of October 16, 2023: 3752 new cases were recorded, reflecting 62.58% as compared to last month. The total historical cases are 6,027 .
• As of September 15, 2023: There were a whopping 1972 additional pending cases compared to the previous month, representing a 87.88% change. The historical count in September was at 2767 pending cases.

These statistics further highlight the ongoing growth and significance of the hair relaxer lawsuits, as more plaintiffs join the litigation and contribute to the rising number of case filings.

Discussions about discovery processes, including expert disclosures and depositions, took place, particularly involving defendants Beauty Bell, Revlon, and Namaste. The court was also updated on the Revlon bankruptcy status and subject matter jurisdiction. Additionally, Frequently Asked Questions (FAQ) were posted on the Court’s MDL webpage for reference.

H3: Is A Bard Hernia Mesh Resolution Possible This Year?

In the recent November 9, 2023 update, the Stinson case saw another plaintiffs’ victory against Bard, resulting in a $500,000 verdict. 

This marks Bard’s third consecutive loss, with previous verdicts of $250,000 and $4,800,000 in April 2022 and August 2022, respectively. 

Despite the losses, the outcome in Stinson could have been worse for Bard, as no punitive damages were awarded. 

The plaintiff’s case involved complications from a right inguinal hernia repair using Bard’s Extra-Large PerFix Plug mesh, which led to persistent pain, subsequent surgery, and the discovery of mesh-related issues.

As of October, the trial has reached Day 9, with the plaintiff expected to conclude their case soon. Despite expectations for a settlement, Bard has not yet made an offer. The defense has presented arguments, including testimony from Dr. BJ J Pomerants, asserting that the plaintiff’s pre-implant injuries influenced his post-implant pain perception. The overall situation suggests uncertainty about Bard’s strategy and potential willingness to settle.

In terms of filing trends, the multidistrict litigation (MDL) continues to progress at a sluggish rate. There has been a deceleration in litigation activity –  

• As of November 16, 2023: A total of 399 fresh cases were recorded, reflecting a meager 2% difference in comparison to the previous month. The total count of pending cases remains at 20,767, consistent with a historical dataset of 21,482 cases.

• As of October 16, 2023: There was a decrease of 36 cases representing a decrease of 0.18% as compared to last month. 
• As of September 15, 2023: There was a change trend of 499 cases, representing a 2.45% increase compared to the previous month. The historical pending case is at 20,904.

Recent settlements involving Ethicon and Atrium meshes involved approximately 10,000 cases. These settlements have played a crucial role in defining the compensable injuries and establishing criteria for law firms to follow.

Two significant market leaders, Bard and Covidien, currently hold a combined market share of 83% in the hernia mesh industry (Bard with 65% and Covidien with 18%). They are currently facing an overwhelming 50,000 lawsuits across state and federal courts. The upcoming resolution of these cases in 2024 and 2025 provides a valuable opportunity for those interested in participating in this dynamic legal field. 

With a recent decision dismissing J&J’s bankruptcy petition, Bard can no longer rely on a bankruptcy maneuver as an option. As a result, Bard is now facing four trials over the next six months.

The combination of ongoing litigation, several settlements, and the increasing number of filings indicates an active and opportune environment for firms and clients to engage in hernia mesh Mass Tort cases for resolution within the next 3 years. 

H3: Talcum: $18 Million Verdict and J&J Sues Plaintiff Expert Witnesses

The talcum powder litigation against Johnson & Johnson continues to unfold with new developments. A recent talcum powder trial is currently underway in California, where a plaintiff claims that his mesothelioma is linked to Johnson & Johnson’s talcum powder. 

The defense attorney argues that the cancer was caused by asbestos exposure at other locations, such as the Naval Shipyards and a brakes factory near an asbestos plant, rather than the talcum powder alone.

In another update, Johnson & Johnson is considering a third attempt at filing for Chapter 11 bankruptcy for its LTL unit as a strategy to resolve lawsuits related to its talc products causing cancer. 

However, previous attempts have been unsuccessful due to court rulings. The company is now contemplating filing in the Fifth Circuit’s Southern District of Texas, hoping for a more favorable outcome. It is anticipated that this strategy will not work and will result in further financial losses for Johnson & Johnson.

Los Angeles County has also filed a lawsuit against Johnson & Johnson, accusing the company of promoting talc-containing products despite knowing the risks of cancer and mesothelioma. 

The county seeks damages and criticizes the company’s attempt to reorganize liabilities through a subsidiary’s bankruptcy filing, which has been rejected by courts. Additionally, the county alleges that Johnson & Johnson targeted minority women in its marketing.

In its filing trend, there have been no significant alterations for its pending cases –

• As of November 16, 2023: There were 316 new cases, signifying a meager 0.60% increase in comparison to the preceding month.

• As of October 16, 2023: It increased by 5,649 new cases, representing 11.93% change compared to the previous month.
• As of September 15, 2023: There were only 1,127 new cases, representing a mere 2.37% difference compared to the preceding month. The total count of pending cases is at 47,346 contributing to its overall historical case count of 48,469

Last September, Johnson & Johnson (J&J) has filed a lawsuit against Dr. Jacqueline Moline, a renowned expert in Occupational Medicine, due to her article linking talc with mesothelioma. Dr. Moline’s lawyers have filed a motion to dismiss the trade libel lawsuit, arguing that her academic paper is protected by the First Amendment and that differences in academic opinions should not be grounds for trade libel accusations.

Furthermore, J&J has employed delay tactics by seeking to reargue expert witness challenges that were previously decided by the retired MDL judge. This argument is considered unlikely to succeed but adds to the time-consuming nature of the litigation process.

Along these lines, Johnson & Johnson (J&J) has maintained a tenacious stance regarding the Third Circuit standard imposed by the court, arguing that it is not found in the Bankruptcy Code and contradicts the principles upheld by the Supreme Court of the United States. The company also claimed that they have solid scientific evidence, research, and over 40 years of studies that support the safety of their cosmetic talc products. Furthermore, J&J plans on raising awareness about forum shopping, distorted scientific literature with “junk science,” and the unregulated financing of product litigation by financial institutions such as private equity and sovereign wealth funds.

However, plaintiff’s attorneys argue that it is high time for J&J to take responsibility for their actions. They assert that the company’s bullying tactics and evasive “bogus” maneuvers should come to an end. Despite J&J emphasizing that they have prevailed in the overwhelming majority of cases that have gone to trial and that most claimants have received no compensation, plaintiffs remain firm in their call for accountability.

As J&J continues to navigate the legal landscape, it faces mounting pressure to address the concerns raised by plaintiffs and their legal representatives. The future of the talc litigation and the potential impact on both J&J and the affected individuals may depend on how these complex legal matters unfold in the coming months.

H3: Camp Lejeune: Judges Select Seven-Member Leadership Team

The Camp Lejeune water contamination lawsuits continue to develop with new updates and events. 

In the latest developments regarding Camp Lejeune lawsuits, attorneys have adjusted fees to 20-25% for new cases, emphasizing a focus on specific injuries categorized into different tiers. The government’s settlement offers are criticized as unreasonable, prompting a call for claimants to seek higher payouts.

Legal intricacies arise in wrongful death claims, challenging the requirement for a court-appointed representative outside North Carolina. Plaintiffs argue against applying FTCA provisions, asserting the distinct nature of CLJA actions. Disputes center on the necessity of opening ancillary estates in North Carolina for CLJA actions.

Recent settlements totaling $850,000 highlight ongoing compensation efforts. A new lawsuit demands $100 million, emphasizing discrepancies in the government’s $3.3 trillion calculation. 

The Camp Lejeune Status Conference originally scheduled for November 7, 2023, was canceled and rescheduled for November 21, 2023.

In October, joint status reports were submitted, detailing efforts to gather information on affected individuals. Disagreements over data sharing and privacy concerns persist, reflecting the complexity of the ongoing litigation.

The EPA’s call for a ban on Trichloroethylene (TCE) in October underscores environmental concerns related to the Camp Lejeune water contamination. The proposed ban follows evidence linking TCE to health issues, including cancer.

While an unconfirmed report hints at the first Camp Lejeune settlement, increased civil case filings are noted following the early settlement program announcement. Trials are set to begin next year, with cases organized into distinct tracks based on specific diseases.

Despite government efforts to streamline compensation through a settlement program, skepticism arises among lawyers, citing low payouts and eligibility criteria. Attorney fees are under scrutiny, with the government seeking to cap them at 20% for administrative settlements and 25% for litigation payouts.

As of September 2023, the government has introduced a new settlement program aimed at expediting payments for qualifying individuals who suffered injuries at Camp Lejeune. 

Under the “Elective Option,” eligible individuals could receive payouts ranging from $150,000 to $450,000, based on a tiered system determined by their time spent at Camp Lejeune and the severity of their injuries. Additionally, those who passed away due to their injuries would be entitled to an extra $100,000.

The process involves the government making a settlement offer, with claimants having 60 days to accept it. If accepted, payouts could be processed within 60 days; however, if the offer is declined, the case would proceed to federal court.

Given the backlog of over 93,000 claims with only 18,000 processed, this approach aims to address the backlog and expedite compensation for affected individuals. While it may not entirely resolve the Mass Tort, it could see a substantial number of eligible individuals accepting the offer, allowing the government to focus on the remaining cases.

This is the response of the DOJ on its path to making settlement offers for the 75,000 administratively filed cases. The cases that have the best chance of early settlement are those with injuries that the government will likely concede are related to the contaminated water at Camp Lejeune. 

Overall, the trial continues to make progress and although the road to justice is long and challenging, recent developments indicate that victims may be one step closer to receiving the compensation they deserve. With over 60,000 claims filed and ongoing efforts by attorneys and lawmakers, it is hoped that the Camp Lejeune victims may soon find closure and justice for the harm they have suffered.

H3: Tepezza Making Progress

In recent updates regarding the Tepezza hearing loss class action MDL, lawyers representing the victims of Tepezza, a drug used to treat thyroid eye disease, have faced a motion to dismiss their claims. 

The plaintiffs argue that Horizon, the manufacturer of Tepezza, should have developed a safer version of the drug before seeking FDA approval, as it is allegedly linked to hearing loss. The court ruled that federal law does not preempt these claims related to design defects before FDA approval, allowing the state-law claim to proceed.

In a separate development, the judge overseeing the Tepezza hearing loss class action MDL issued a new Case Management Order. The order outlines the rules and procedures for the selection of bellwether cases and trials. 

A pool of 12 bellwether candidate cases will be selected, with each side choosing four cases and the remaining four selected randomly. These cases will then undergo a fact-discovery process.

The pending multidistrict litigation (MDL) continues to progress at a slow rate. In terms of filing trends, there has been a slow-moving trajectory in litigation activity –  

• As of November 16, 2023: There were only 5 cases filed attributing  to a meager 5.26% increase, bringing the total pending cases to 59.

• As of October, 2023: No new cases were added. 
• As of September 15, 2023: There were 8 cases filed contributing to 14.81% increase, bringing the total pending cases to 54.

In its September update, Magistrate Judge M. David Weisman has taken charge of managing the discovery process, overseeing the settlement conference, and addressing various matters. A preliminary status hearing is scheduled for September 19, 2023, and plaintiffs have the option to participate via a conference call. 

Amgen Inc., a major biopharmaceutical company, has successfully resolved concerns raised by the FTC, allowing its $27 billion acquisition of Horizon Therapeutics, the manufacturer of Tepezza, to proceed. This development is positive for plaintiffs as Amgen assumes liability for Tepezza-related hearing loss claims, leveraging its greater financial resources. 

Additionally, during recent status hearings, Tepezza lawyers were directed to submit proposed orders regarding privileged materials and a protective order, ensuring the sharing of necessary information without compromising attorney-client privilege. Magistrate Judge M. David Weisman will work alongside the MDL judge to oversee the discovery process and facilitate potential settlements. The aim is to achieve an efficient resolution for all parties involved.

H3: Could 2023 Be A Landmark Year For AFFF Lawsuits?

In November 2023, the AFFF personal injury cases are progressing as parties work on selecting cases for the bellwether discovery pool. These selected plaintiffs will undergo case-specific fact discovery, leading to the eventual personal injury bellwether trials.

A recent study set to be released in eBioMedicine reveals a concerning connection between elevated concentrations of linear perfluorooctanesulfonic acid (PFOS) and a 56% increased risk of thyroid cancer. This adds to the growing body of evidence linking specific PFAS exposure to adverse health outcomes.

On October 5, 2023, a study reinforced the already established link between AFFF and testicular cancer, providing further robust evidence of the association.

Judge Gergel, overseeing the AFFF MDL, recently presided over a guilty plea from Alex Murdaugh. The hope is that the judge will now focus on establishing a tight schedule for the AFFF personal injury bellwether trials.

As for the bellwether cases, they will draw from water utility lawsuits in New Jersey, New York, California, and South Dakota. While claims against DuPont, 3M, and Chemours are on hold pending settlement approval, cases involving companies like Tyco, Daikin, and ACG Chemicals remain unsettled. 

Lawyers anticipate a bellwether trial schedule soon, crucial for compelling reasonable settlements. Discussions are ongoing regarding the specific range of cancers to be included in these bellwether trials.

Regarding the patterns of filing, the class action lawsuit concerning AFFF Lawsuit has displayed a state of stagnation – 

• As of November 16, 2023: There were a total of 351 new cases recorded, reflecting a modest 5.80% uptick compared to the month prior. The overall count of pending cases is at 6400, in line with a historical dataset of 6586 cases.

• As of October 16, 2023: 111 fresh cases were documented, signifying an 1.87% difference in comparison to the previous month. The overall count of pending cases amounts to 6049, aligning with a historical dataset of 6220 cases.
• As of September 15, 2023: A rise of 177 pending cases was observed in contrast to the prior month, indicating only a 2.98% increase. The historical count for September stood at 6,115 pending cases.

The MDL Judge has issued a new Case Management Order, outlining a bellwether trial schedule for all Telomer water contamination cases, with the first trial scheduled for August 2024. This development raises questions about how it might impact the timetable for individual cancer cases within the AFFF MDL. 

These lawsuits allege that manufacturers failed to warn about the health risks associated with PFAS exposure and failed to prevent environmental contamination. Overall, these recent developments mark a significant turning point in the AFFF lawsuit, with the potential for individual compensation for those affected by AFFF exposure.