While many courtrooms across the country were closed in response to the COVID-19 pandemic, there are several mass torts that continued making significant progress despite the legal hiatus. Two of these were cited in our 2020 forecast:
The JUUL MDL (Northern District of California) has continued to move forward since the end of 2019. The judge has appointed plaintiffs’ attorneys to leadership roles, and the steering committee is starting to organize. Key appointments include:
- Co-lead counsel: Sarah London, Dean Kawamoto, Ellen Relkin, Dena Sharp
- Plaintiffs’ federal/state court liaison counsel: Khaldoun Baghdadi, Leslie LaMacchia
- Plaintiffs’ government entity liaison counsel: Thomas Cartmell
- Plaintiffs’ steering committee: Rachel Abrams, Erin Dickinson, Michelle Drake, Jonathan Gdanski, Adam Gutride, Bradly Honnold, Emily Jeffcott, Kristine Kraft, Esfand Nafisi, Matthew Schultz, Sabita Soneji, Joseph VanZandt, Mikal Watts, Michael Weinkowitz.
Look for this mass tort litigation to gain momentum in the coming months.
The other newsmaker is the Johnson & Johnson talc case, which recently made headlines when the company pulled its baby powder from the market. Although not an admission of guilt, this permanent discontinuance of the company’s flagship product may prompt the plaintiffs’ bar to seek out more claimants, and we believe J&J will continue to fight what is likely to be a growing number of cases. Other companies, including L’Oreal and Chanel, are also being sued for selling OTC talcum powders allegedly contaminated by asbestos; this may ultimately pull them into the same type of mass tort litigation.
A new MDL has been formed in the U.S. District Court for the Southern District of Florida, and leadership has been appointed. It is forecast to be one of the largest MDLs in recent history, given the fact that the heartburn drug has been on the market since the early 1980s, with around 20 million prescriptions written every year. The makers have allegedly been aware of the carcinogenic properties of its active compound for decades, with numerous studies linking the chemical to cancer.
Judge Robin Rosenberg has made a strong effort to appoint a more diverse leadership than is typically found in many other MDLs. The diversity issue—across gender, age, ethnicity and race—has long been discussed in legal academic circles. She also created a “leadership development committee” to give younger lawyers an opportunity to immerse themselves in the logistics of a major MDL while learning from experienced mentors.
Evolving Mass Torts
COVID-19 and Nursing Homes
Despite the complexities involved with the potential for multiple defendants, we foresee the lawsuits against nursing homes due to COVID-19 deaths leading to an MDL or consolidated litigation. In addition to the various nursing homes involved, other entities, including healthcare workers, cleaning companies and home health agencies that came into the facilities to provide a service, may also be held accountable and could potentially become defendants or involved in the litigation. Certain state governments are signaling they may grant immunity for civil and criminal liability to state-run facilities, but it remains to be seen what will happen at the plaintiffs’ bar, given the public and political pressures around these deaths.
Boys Scouts of America
The sexual abuse litigation against the Boy Scouts of America is now permitting tort claimants to submit a claim within a larger bankruptcy proceeding, in which the national organization filed for Chapter 11 bankruptcy protection to stay individual lawsuits brought by sexual abuse survivors. The full scope of the liabilities is not yet known, but a bankruptcy court has set a November 2020 deadline by which abuse survivors must file a proof of claim. It is anticipated that any plan of reorganization approved by the court will involve a settlement mechanism resolving claims brought by abuse survivors.
The drug Elmiron, which treats interstitial cystitis, bladder pain and osteoarthritis, is being linked to permanent eyesight damage, including macular degeneration and pigmentary and retinal maculopathy. A number of studies dating to 2018 have revealed risks associated with long-term use of Elmiron. Mass tort law firms are looking for claimants now. Elmiron was developed by Janssen Pharmaceuticals (a Johnson & Johnson subsidiary).
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