Top 5 Mass Torts of 2018

As we head into 2019, I thought it would be interesting to look back at the Top Five Mass Torts of 2018.  The first question you may have is what is a mass tort?  A mass tort is a civil action involving numerous plaintiffs against one or a few defendants.  The losses arise out of the defendant causing numerous injuries through the same or similar act of harm such as a prescription drug, or a medical device, or a defective product.

These mass torts generally involve causes of action nationwide.   It should be noted that mass torts are not necessarily class actions as class actions have several characteristics and must meet certain specific criteria.  Potential members of the class must be notified of the suit, given the option to join or find their own attorney.  In order for a class action to take place, a motion must be filed with the Court to ask the class to be certified.

Difference Between Mass Torts and Class Actions

Mass torts are different.  Although they also attempt to reduce the number of cases in the system, Mass tort cases are handled much differently.  Mass tort cases are brought because people are injured on large scale by a defective drug or defective products.  Mass tort actions are filed on behalf of the individual in either State Court or Federal Court.  If there’s a sufficient number of cases filed in Federal Courts, the Plaintiffs then petition the Federal Court to form an MDL (Multi-District Litigation) which is a special Federal legal procedure designed to speed the process of handling complex cases including a defective drug of product.

For purposes of liability, all cases filed within the Federal Court system are consolidated before a Multi-District Litigation Judge.  Groups of both Plaintiff and Defense lawyers are appointed by the Multi-District Litigation Judge to spearhead the discovery direction of the litigation regarding liability.  Often there are bellwether trials (test cases).  Often following a bellwether trial a Global Settlement is reached wherein Plaintiffs are placed within a grid defining certain criteria to determine the damages to be awarded to each of the Plaintiffs in each specific category.  If a Global Settlement is not reached, however, the liability is established, the cases are deferred back to the Federal Courts where they were filed for individual trials on damages.

Top Five Mass Torts of 2018

Roundup

The essential allegations are that Roundup, a weed control product was linked to the occurrence of cancer.  Roundup is manufactured by Monsanto.

The Multi-District Litigation (MDL) was consolidated in the Northern District of California in October 2016.  The first bellwether cases are scheduled for February 26, 2019, and May 6, 2019.  The allegations were that Roundup caused cancer, specifically Non-Hodgkin’s Lymphoma.

There was a State Court case (not part of the MDL) in which in August 2018, a jury returned a $289,000.000.00 verdict.  Dwayne Johnson v. Monsanto.  Punitive damages of $250,000,000.00 were also awarded.  In October 2018 a Northern California Judge upheld the verdict that found Monsanto’s weed killer caused cancer however she reduced the verdict from $289,000,000.00 to $78,000,000.00.  The Judge also reduced the $250,000,000.00 punitive damage award to $39,000,000.00.

Benicar

This is a blood pressure medication manufactured by Daiichi Sankyo, Inc., and Forrest Laboratories, Inc.  It was alleged that the manufacturer failed to disclose to consumers potential occurrences of severe side effects such as chronic diarrhea, nausea, malnutrition, dehydration, and weight loss.  The Benicar suits were centralized into a Multi-District Litigation (MDL) in New Jersey.

The Benicar MDL was formed in April 2015.  In 2017, a $300,000,000.00 master settlement agreement was reached.  In May 2018, the settlement amount was increased to $358,000,000.00.  The requirement was that 97% of the claimants opt into the settlement.  The terms of the settlement agreement were triggered in June 2018 when 97% of the eligible participants agreed to the settlement.  The remaining Plaintiff’s (3%) are still pursuing cases in the New Jersey District Court.

Invokana

This was a popular drug used to treat Type 2 diabetes.  Plaintiff’s claims that Invokana can cause serious kidney problems and diabetic ketoacidosis, a potentially life-threatening condition.  The Invokana MDL was formed in 2016 in the District of New Jersey.  The initial bellwether trials were projected to begin in December 2018 however it appears that both sides have entered into serious settlement discussions.  It appears that settlement may ultimately be forthcoming for a “confidential settlement amount”.

IVC Filter

An IVC Filter is a small cage-like device that’s implanted in the main vein that returns blood in the lower half of the body to the heart and lungs.  The filter is designed to capture migrating blood clots that have broken loose in the legs and that are moving towards the heart and lungs.

IVC is manufactured by Bared and an MDL was consolidated in the US District Court of Arizona.  An initial bellwether trial was conducted in March 2018 and resulted in a $3.6 million dollar jury verdict.  The second bellwether trial ended with a defense verdict and the third ended on grounds of summary judgment on behalf of the defendant.  A fourth bellwether trial also resulted in a finding for the defense.  The next scheduled trial in the IVC Filter (MDL) is set to begin in May, 2019.

Talc

This litigation is in both state courts and in an MDL.  Plaintiffs alleged that the manufacturers of the talc, Johnson & Johnson, deliberately exposed millions of Americans to a talc powder which causes cancer.

The MDL was consolidated in the District of New Jersey.  A number of the high profile talc cases have gone to trial in State Courts.  In the St. Louis Circuit Court, 22 women were awarded a $4.6 billion dollar jury verdict.

The verdict consisted of $25 million in damages to each of the 22 Plaintiffs and an additional $4.14 billion award in punitive damages.  There have been other multi-million dollar jury verdicts along with some Defense verdicts as well.  The question of liability in these cases is far from resolved.