Articles Posted in Product Liability

2020 promises to be a busy and eventful year in product liability litigation against hernia mesh manufacturers. There are several bellwether cases in multidistrict litigation that are scheduled to begin trial in 2020.

The defendants are fighting these cases and have not settled them or conceded any type of liability. These bellwether cases are crucial because there is a large number of potential cases yet to be filed in hernia mesh lawsuits. Millions of surgeries have relied upon the implant, and the failure rate is estimated as high as 12-30%. Moreover, many of the plaintiffs do not realize until years after the surgery that they were injured because some of the mesh implants can take time to erode.

Bellweather Hernia Lawsuit Trails: An Indication of What is to Come

After several high-profile jury losses that resulted in large verdicts against it, Bayer is faced with a spiraling legal crisis from sales of the weed killer Roundup. Now, there is strong talk that the German company may be close to putting some of its legal woes that it inherited when it acquired Monsanto behind it by settling the lawsuits.

The media has reported that the settlement number could reach as high as $10 billion. Still, given the harsh punishment that juries have meted out to the company, any type of settlement may be a prudent bet for Bayer as the stock market has punished the stock in the past year since news broke of the jury verdicts against Roundup related to Non-Hodgkins Lymphoma cases.

The Settlement Talks Have Stabilized the Stock

Bayer has had its hands full with legal issues stemming from its weed killer products. The company faces billions of dollars in liability due to tens of thousands of lawsuits brought against for Roundup side effects and complications. These are personal injury claims in which the plaintiffs allege that they contracted cancer due to their exposure to Roundup. Now, another of Bayer’s products has been found by a jury to be responsible for a different kind of harm.

Specifically, a jury in Missouri has awarded a farmer $265 million based on claims that a weed killer made by Bayer and BASF destroyed the man’s peach crop. For Bayer, this represents another legal blow to a company that is reportedly deep in negotiations to settle the Roundup lawsuits.

The plaintiff owns one of the largest peach farms in Missouri. His orchard is thousands of acres and is located near several other farms. The farmers on these plots of land were using herbicide that contained an ingredient known as dicamba. This is a potent ingredient that many believe does not stay localized to the area in which it is used.

Things keep getting worse for e-cigarette maker Juul Labs, Inc.  In the midst of a wave of vaping illnesses sweeping the nation, the leading U.S. vaping company is under fire. Juul is currently the subject of a federal investigation and multiple lawsuits targeting its marketing practices to underage users. It has recently undergone a shakeup in its corporate leadership and faces a flurry of legislation at the state level attempting to restrict or ban its flavored “pods,” which have become wildly popular among America’s youth.

Now the mountain of mass-tort litigation Juul is facing will be consolidated in a multi-district litigation (MDL) in federal court in San Francisco, where the company is headquartered.  Attorneys for Juul and for some of the plaintiffs in the lawsuits had requested an MDL in a hearing before the Judicial Panel on Multidistrict Litigation in Los Angeles, which decides if similar federal court cases around the country would best be handled in a single court.

In early October, the panel agreed to create an MDL and centralize all pending federal cases against Juul in the court of U.S. District Judge William Orrick of the Northern District of California, who was already overseeing a class-action lawsuit brought against Juul in 2018 by 44 plaintiffs from 22 states.

Monsanto has recently been on the wrong end of several major jury verdicts in lawsuits relating to its product Roundup. Plaintiffs have filed suit against the company, alleging that the weed killer was responsible for cases of non-Hodgkin’s lymphoma. Last year, a terminally ill California man was awarded $ 289 million by a California jury. This was followed by other large verdicts, as juries have reacted viscerally to evidence of Monsanto’s corporate behavior. Now, the company faces many other lawsuits while simultaneously appealing the jury verdicts with which it was already hit.

Roundup has been used as a pesticide for many years, starting with its introduction in 1974. The product was viewed to be a safer alternative to the pesticide DDT. However, there were reports starting in the early part of this century that the product could cause cancer. By 2015, the World Health Organization concluded that glyphosate-based products were “probably carcinogenic to humans.” Nonetheless, the EPA continues to cling to the belief that glyphosate is entirely safe and will not take steps to regulate sales of the product. The regulatory agency will not entertain the mounting evidence to the contrary in reevaluating its opinion.

The first lawsuits began to go in front of juries within the past couple of years. The watershed case was heard in California. The plaintiff was a man named Dewayne Johnson who was terminally ill with cancer. Johnson was a groundskeeper for the school district and had used Roundup for years. Now he had non-Hodgkin’s lymphoma. Of particular interest to the jury was Monsanto’s record of corporate behavior. Rather than objectively assess whether its product was safe, the company attempted to place a finger on the scale by influencing the scientific debate over the possible danger associated with Roundup.

Johnson & Johnson has faced widespread legal exposure relating to its flagship talc powder product. In the past several years, juries in state court have found that talc powder was to blame for ovarian cancer and have assessed the company with steep damages in talcum powder cancer lawsuits. This culminated with a multi-billion dollar verdict in favor of a group of plaintiffs in Missouri. Now, there is federal multi-district litigation that is making its way through the discovery phase. Since the case is largely based on scientific evidence, a recent hearing may prove crucial to plaintiffs’ chances for success when the bellwether cases go to trial.

The allegations that Johnson & Johnson faces stem from the fact that there is at least some scientific evidence that its talc powder contains traces of asbestos. Talc and asbestos occurring near each other naturally in the ground so it is entirely possible, and perhaps probable, that where one is found, the other will be present too. This has been an issue that has been debated scientifically for decades. The company has been a part of the debate, attempting to influence scientific research to show that its talc powder is safe. Regardless, the company has known about the possibility that its talc powder could pose a danger to users going as far back as the 1950s.

There have been numerous lawsuits brought against the company by women (and even some men) who have been long-term users of the product and have contracted various forms of cancer. Most of these lawsuits have been filed in federal court, but some trials have taken place in state court. Notably, a group of 23 women sued Johnson & Johnson in state court in Missouri. In 2018, the jury returned a verdict, finding the company liable and assessing the company with $4.7 billion in damages. Much of the award was in the form of punitive damages as the jury was put off by the pattern of corporate behavior, insofar as the company has known of the potential danger of the product yet has focused its efforts on influencing the scientific debate.

Cooking spray seems to be an innocuous kitchen product that puts oil in a form that is convenient to use. However, like any spray product, there are dangers associated with the product since the contents are under pressure. Recently, there have been several lawsuits that have been filed by the manufacturers of Pam cooking spray that were all filed on the same day.

The plaintiffs suffered injury when cans of this cooking spray exploded, leaving them with serious disfiguring injuries. The lawsuits claim that there is a defect in the product that caused them to explode, although the company maintains that its products are safe and any explosions must have been due to improper use.

One of the overlooked complications associated with using cooking sprays in the kitchen is that they are used on or in close proximity to stoves. This heats contents that are already under pressure and makes them even more potentially dangerous. Specifically, Pam contains propellants designed to make the product spray through the vents. The company will not reveal exactly what these propellants are, but the lawsuits claim that they are propane and butane. All the company says is that the propellants are food grade and have been approved by the FDA. However, when heated, these propellants can become explosive.

Temple v. Synthes Corp., Ltd., 498 U.S. 5; 90-295 (1990)

• 1990
• Category: Personal injury, medical device, products liability, civil procedure

Geier v. American Honda Motor Co., 529 U.S. 861; 98-1811 (2000)

• 2000
• Category: Personal injury; preemption

Introduction to an Infamous Personal Injury Lawsuit Controversy:

A normal woman in a small town drives up to a McDonald’s and orders a cup of coffee. The rest is history. In the weeks and months to follow this encounter, great controversy would swirl around this woman and her latte. Television shows, pundits, and politicians across the country debated the matter vigorously. A documentary was even produced depicting the incident (called Hot Coffee). Yet, what actually happened?

On February 27, 1992, Stella Liebeck, 79 years old, pulled into the drive-through of a McDonald’s restaurant in Albuquerque, New Mexico and ordered a cup of coffee. It only cost her 49 cents but it serving her that drink would cost the restaurant a lot more than that when it was all said and done. Stella was not actually driving; her grandson, Chris, was driving his 1989 Ford Probe.

Politely, Chris pulled into a parking space so that his grandmother could add cream and sugar to her coffee. In the process, some of it spilled out of the cup and onto her groin, burning her butt and thighs. She was only wearing cotton pants and they did not effectively guard her from the high temperatures of the coffee (said to be over 180 °F).

Quickly, she was rushed to the hospital where doctors determined she had suffered third-degree burns on a small part of her body. She stayed at the hospital a little over a week where she received skin grafting. The incident left her with significant weight loss, permanent disfigurement, and disability for years to come.

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