JURY HANDS CR BARD A WIN IN OHIO HERNIA MESH BELLWETHER

An OH federal jury has given C.R. Bard Inc. and its subsidiary Davol Inc. a win in the first bellwether over allegations that its Ventralight ST hernia mesh is defective, finding no liability on the companies’ part for injuries a man says he sustained as a result of those alleged defects.

The jury found in Bard and Davol’s favor on all of Steven Johns’ claims against them, including negligence claims for failure to warn and design defect and product liability claims for failure to warn and design defect, as well as breach of express warranty, fraud and negligent misrepresentation.

Johns was implanted with the mesh in 2015 to treat a hernia and soon after he suffered pain, a recurrence of the hernia and decreased mobility as a result of the defect, as well as emotional distress. He later had the mesh removed, which required another “physically and emotionally painful” recovery period.

Johns claimed the “ST” coating, which is designed to “resorb” after a set period, did not last as long as Bard advertised, resulting in exposure to the polypropylene layer and causing serious injuries. Johns’ doctors had to surgically remove the Ventralight ST and eventually repair the hernia the device was supposed to treat. Johns claimed the company knew about the design defects and failed to adequately warn consumers about the risks of using the product.

The Johns trial served as the first bellwether in multidistrict litigation consolidated in Ohio federal court in August 2018.

LAW360: https://www.law360.com/articles/1420047/jury-hands-cr-bard-a-win-in-ohio-hernia-mesh-bellwether

TOBACCO COS. SAY IMPROPER VOIR DIRE LED TO $42M VERDICT

R.J. Reynolds Tobacco Co. and Philip Morris USA Inc. asked a FL appeals court to vacate a $42.5 million verdict for the family of a deceased smoker, arguing that the trial court judge improperly allowed plaintiff’s counsel to ask prejudicial questions of potential jurors.

R.J. Reynolds’ attorney Val Leppert said the trial court judge overruled the tobacco companies’ objections to questions during jury selection, including queries about whether potential jurors would feel intimidated or scared to render a verdict against the tobacco companies.

The judge also failed to remove a juror, known as Juror No. 8, for cause after she told the court that she believed anyone who is a daily smoker is addicted and a cigarette company would bear the burden of proof to disprove that.

Kimberly Boldt, who argued for widower Kenneth Gloger, told the appeals court that it’s necessary to look at the entirety of voir dire. She said that the tobacco companies asked Juror No. 8 and others about whether daily smokers are addicted in an attempt to embed the facts of the case in jury selection and pretry the issue in question. In the end, she added, the tobacco companies used a peremptory challenge on Juror No. 8, who never sat on the jury.

Gloger and his children sued Philip Morris and R.J. Reynolds in 2011, claiming they were responsible for the 1996 death of his wife, Irene Gloger, of lung cancer at age 47. In October 2017, a Miami-Dade County jury found the companies liable and awarded $6 million in compensatory and $10 million in punitive damages.

After a second trial, a jury awarded $5 million in compensatory damages each for Gloger and the couple’s two children, who were 15 and 18 when their mother died. The jury also issued punitive damages awards of $11 million and $16.5 million against Philip Morris and R.J. Reynolds, respectively.

LAW360: https://www.law360.com/articles/1418782/tobacco-cos-say-improper-voir-dire-led-to-42m-verdict

CPAP MAKER SUED OVER RECALL FOR CHEMICAL INHALATION RISK

Dutch health products company Royal Philips and its affiliates were hit with a proposed class action accusing them of selling millions of sleep apnea treatment devices that they knew put users at risk of inhaling foam particles containing dangerous chemicals, and then waiting too long to recall the products.

Plaintiff Michael Dansky said the company knew about the health risks of its continuous positive airway pressure, or CPAP, machines and other devices prior to revealing them to the public in a regulatory notice about five months ago. The now-worthless products were ultimately subject to an “unreasonably delayed” recall in June.

In June, Philips issued a recall of its CPAP, Bi-Level PAP and mechanical ventilator devices containing polyester-based polyurethane sound abatement foam, or PE-PUR foam, following its April announcement that it had determined there were risks that the foam on those devices may degrade or “off-gas” under certain circumstances.

The recall warned that “these issues can result in serious injury which can be life-threatening, cause permanent impairment, and/or require medical intervention to preclude permanent impairment.” The company advised consumers to discontinue usage of the devices and consult with their physicians regarding alternative ventilator options.

Royal Philips estimated that the recall applied to between 3 million and 4 million devices.

Prior to the recall, the company “received complaints regarding the presence of black debris/particles within the airpath circuit of its devices (extending from the device outlet, humidifier, tubing, and mask).” Users reported experiencing “headaches, upper airway irritation, cough, chest pressure and sinus infection”.

Dansky said he never would have purchased his Philips DreamStation CPAP device, which was among the models recalled because it contained a dangerous foam that could lead to ailments such as cancer and organ failure, had he known about the health risks.

He seeks to represent a class of purchasers and users of Philips’ CPAP devices, as well as its bi-level positive airway pressure devices and mechanical ventilators, which contain PE-PUR foam.

Dansky “has and will suffer economic loss to replace the devices” and is seeking damages based on alleged warranty breaches and purported consumer law violations in connection with the company’s sales and marketing of the CPAP and other devices.

Dansky also wants continuous medical monitoring damages for those who are at risk for asthma, headache, inflammation and irritation of the eye, skin and respiratory tract, along with adverse impacts on organs such as kidneys and liver and “toxic carcinogenic” effects.

LAW360: https://www.law360.com/articles/1419826/cpap-maker-sued-over-recall-for-chemical-inhalation-risk

DEFENSE VERDICT UPHELD IN BELLWETHER OVER 3M SURGICAL BLANKET

A federal appeals court upheld a verdict in favor of 3M Co in a lawsuit claiming the company’s Bair Hugger surgical warming device caused a patient’s infection, the only such case to go to trial so far out of nearly 6,000 pending in a multidistrict litigation.

The 8th U.S. Circuit Court of Appeals panel rejected arguments by the patient Louis Gareis and his wife, Lillian Gareis, that the trial was unfair because of rulings by U.S. District Judge Joan Ericksen in Minneapolis limiting the evidence they were allowed to present. The panel found those rulings were not relevant to the trial’s outcome.

The Bair Hugger consists of a central unit, hose and blanket, and it blows warm air over a patient during surgery. The device is intended to decrease bleeding, improve recovery times, and lower the risk of infections.

Plaintiffs in the MDL claim that the device can transfer antibiotic-resistant bacteria into open surgical wounds, causing infections. The Gareises allege that Louis Gareis developed an infection following a 2010 hip replacement surgery.

In its verdict, the jury found that the Gareises failed to prove that the Bair Hugger caused the infection. The Gareises argued on appeal that the judge erred in granting summary judgment on their failure-to-warn claim and in excluding their evidence.

However, Circuit Judge Raymond Gruender wrote that the Gareises had not been prejudiced because the jury found that the Bair Hugger did not cause the infection. That meant evidence about 3M’s knowledge or possible alternative designs would likely not have changed the verdict and that the failure-to-warn claim would not have fared any better than the strict liability claim.

REUTERS: https://www.reuters.com/legal/litigation/defense-verdict-upheld-bellwether-over-3m-surgical-blanket-2021-08-17/

DEFENSE VERDICT UPHELD IN BELLWETHER OVER 3M SURGICAL BLANKET

A federal appeals court upheld a verdict in favor of 3M Co in a lawsuit claiming the company’s Bair Hugger surgical warming device caused a patient’s infection, the only such case to go to trial so far out of nearly 6,000 pending in a multidistrict litigation.

The 8th U.S. Circuit Court of Appeals panel rejected arguments by the patient Louis Gareis and his wife, Lillian Gareis, that the trial was unfair because of rulings by U.S. District Judge Joan Ericksen in Minneapolis limiting the evidence they were allowed to present. The panel found those rulings were not relevant to the trial’s outcome.

The decision came the day after the circuit revived the MDL, which Ericksen had dismissed, finding that Ericksen wrongly excluded the plaintiffs’ key expert witnesses after hearing them testify at the Gareises’ trial.

The Bair Hugger consists of a central unit, hose and blanket, and it blows warm air over a patient during surgery. The device is intended to decrease bleeding, improve recovery times and lower the risk of infections.

Plaintiffs in the MDL claim that the device can transfer antibiotic-resistant bacteria into open surgical wounds, causing infections. The Gareises allege that Louis Gareis developed an infection following a 2010 hip replacement surgery.

Prior to the 2018 bellwether trial, Ericksen granted 3M summary judgment on the Gareises’ failure-to-warn claim, concluding the company lacked knowledge of the product’s alleged danger that would give it a duty to warn. That left only a strict liability claim.

In its verdict, the jury found that the Gareises failed to prove that the Bair Hugger caused the infection. The Gareises argued on appeal that the judge erred in granting summary judgment on their failure-to-warn claim and in excluding their evidence.

However, Circuit Judge Raymond Gruender wrote that the Gareises had not been prejudiced because the jury found that the Bair Hugger did not cause the infection. That meant evidence about 3M’s knowledge or possible alternative designs would likely not have changed the verdict and that the failure-to-warn claim would not have fared any better than the strict liability claim.

Reuters: https://www.reuters.com/legal/litigation/defense-verdict-upheld-bellwether-over-3m-surgical-blanket-2021-08-17/

3M LOSES BID TO DODGE OCTOBER BELLWETHER TRIAL IN EARPLUG MEGA MDL

An upcoming bellwether case over claims that 3M Co’s Combat Arms earplugs were defective and led to hearing damage for U.S. military personnel who used them can go to trial as scheduled next month, a federal judge has ruled.

U.S. District Judge M. Casey Rodgers in Pensacola, Florida denied 3M’s motion for summary judgment in a lawsuit brought by Michelle Blum, who served in the U.S. Army Reserves, National Guard and Army between 1989 and 2009, rejecting the company’s arguments that her claims were time-barred.

3M is facing more than 240,000 claims over the earplugs, known as Combat Arms Earplugs Version 2, which were standard issue for many U.S. military service members between 2003 and 2015. The vast majority of those are consolidated before Rodgers in the largest multidistrict litigation in history.

Three bellwether trials have already been held, one of which resulted in a $7.1 million verdict for three plaintiffs and another in a $1.7 million verdict for a single plaintiff, though the jury found 3M only 62% liable in the latter case. 3M was cleared of liability in the third.

The ruling came after Rodgers on Friday scheduled five further bellwether trials in November and December, each involving a single plaintiff. 

Reuters: https://www.reuters.com/legal/litigation/3m-loses-bid-dodge-october-bellwether-trial-earplug-mega-mdl-2021-08-31/

TOBACCO COS. SAY IMPROPER VOIR DIRE LED TO $42M VERDICT

R.J. Reynolds Tobacco Co. and Philip Morris USA Inc. asked a FL appeals court to vacate a $42.5 million verdict for the family of a deceased smoker, arguing that the trial court judge improperly allowed plaintiff’s counsel to ask prejudicial questions of potential jurors.

R.J. Reynolds’ attorney Val Leppert said the trial court judge overruled the tobacco companies’ objections to questions during jury selection, including queries about whether potential jurors would feel intimidated or scared to render a verdict against the tobacco companies.

The judge also failed to remove a juror, known as Juror No. 8, for cause after she told the court that she believed anyone who is a daily smoker is addicted and a cigarette company would bear the burden of proof to disprove that.

Kimberly Boldt, who argued for widower Kenneth Gloger, told the appeals court that it’s necessary to look at the entirety of voir dire. She said that the tobacco companies asked Juror No. 8 and others about whether daily smokers are addicted in an attempt to embed the facts of the case in jury selection and pretry the issue in question. In the end, she added, the tobacco companies used a peremptory challenge on Juror No. 8, who never sat on the jury.

Gloger and his children sued Philip Morris and R.J. Reynolds in 2011, claiming they were responsible for the 1996 death of his wife, Irene Gloger, of lung cancer at age 47. In October 2017, a Miami-Dade County jury found the companies liable and awarded $6 million in compensatory and $10 million in punitive damages.

After a second trial, a jury awarded $5 million in compensatory damages each for Gloger and the couple’s two children, who were 15 and 18 when their mother died. The jury also issued punitive damages awards of $11 million and $16.5 million against Philip Morris and R.J. Reynolds, respectively.

LAW360: https://www.law360.com/articles/1418782/tobacco-cos-say-improper-voir-dire-led-to-42m-verdict

CPAP MAKER SUED OVER RECALL FOR CHEMICAL INHALATION RISK

Dutch health products company Royal Philips and its affiliates were hit with a proposed class action accusing them of selling millions of sleep apnea treatment devices that they knew put users at risk of inhaling foam particles containing dangerous chemicals, and then waiting too long to recall the products.

Plaintiff Michael Dansky said the company knew about the health risks of its continuous positive airway pressure, or CPAP, machines and other devices prior to revealing them to the public in a regulatory notice about five months ago. The now-worthless products were ultimately subject to an “unreasonably delayed” recall in June.

In June, Philips issued a recall of its CPAP, Bi-Level PAP and mechanical ventilator devices containing polyester-based polyurethane sound abatement foam, or PE-PUR foam, following its April announcement that it had determined there were risks that the foam on those devices may degrade or “off-gas” under certain circumstances.

The recall warned that “these issues can result in serious injury which can be life-threatening, cause permanent impairment, and/or require medical intervention to preclude permanent impairment.” The company advised consumers to discontinue usage of the devices and consult with their physicians regarding alternative ventilator options.

Royal Philips estimated that the recall applied to between 3 million and 4 million devices.

Prior to the recall, the company “received complaints regarding the presence of black debris/particles within the airpath circuit of its devices (extending from the device outlet, humidifier, tubing, and mask).” Users reported experiencing “headaches, upper airway irritation, cough, chest pressure and sinus infection”.

Dansky said he never would have purchased his Philips DreamStation CPAP device, which was among the models recalled because it contained a dangerous foam that could lead to ailments such as cancer and organ failure, had he known about the health risks.

He seeks to represent a class of purchasers and users of Philips’ CPAP devices, as well as its bi-level positive airway pressure devices and mechanical ventilators, which contain PE-PUR foam.

Dansky “has and will suffer economic loss to replace the devices” and is seeking damages based on alleged warranty breaches and purported consumer law violations in connection with the company’s sales and marketing of the CPAP and other devices.

Dansky also wants continuous medical monitoring damages for those who are at risk for asthma, headache, inflammation and irritation of the eye, skin and respiratory tract, along with adverse impacts on organs such as kidneys and liver and “toxic carcinogenic” effects.

LAW360: https://www.law360.com/articles/1419826/cpap-maker-sued-over-recall-for-chemical-inhalation-risk

DEFENSE VERDICT UPHELD IN BELLWETHER OVER 3M SURGICAL BLANKET

A federal appeals court upheld a verdict in favor of 3M Co in a lawsuit claiming the company’s Bair Hugger surgical warming device caused a patient’s infection, the only such case to go to trial so far out of nearly 6,000 pending in a multidistrict litigation.

The 8th U.S. Circuit Court of Appeals panel rejected arguments by the patient Louis Gareis and his wife, Lillian Gareis, that the trial was unfair because of rulings by U.S. District Judge Joan Ericksen in Minneapolis limiting the evidence they were allowed to present. The panel found those rulings were not relevant to the trial’s outcome.

The decision came the day after the circuit revived the MDL, which Ericksen had dismissed, finding that Ericksen wrongly excluded the plaintiffs’ key expert witnesses after hearing them testify at the Gareises’ trial.

The Bair Hugger consists of a central unit, hose and blanket, and it blows warm air over a patient during surgery. The device is intended to decrease bleeding, improve recovery times and lower the risk of infections.

Plaintiffs in the MDL claim that the device can transfer antibiotic-resistant bacteria into open surgical wounds, causing infections. The Gareises allege that Louis Gareis developed an infection following a 2010 hip replacement surgery.

Prior to the 2018 bellwether trial, Ericksen granted 3M summary judgment on the Gareises’ failure-to-warn claim, concluding the company lacked knowledge of the product’s alleged danger that would give it a duty to warn. That left only a strict liability claim.

In its verdict, the jury found that the Gareises failed to prove that the Bair Hugger caused the infection. The Gareises argued on appeal that the judge erred in granting summary judgment on their failure-to-warn claim and in excluding their evidence.

However, Circuit Judge Raymond Gruender wrote that the Gareises had not been prejudiced because the jury found that the Bair Hugger did not cause the infection. That meant evidence about 3M’s knowledge or possible alternative designs would likely not have changed the verdict and that the failure-to-warn claim would not have fared any better than the strict liability claim.

Reuters: https://www.reuters.com/legal/litigation/defense-verdict-upheld-bellwether-over-3m-surgical-blanket-2021-08-17/

3M LOSES BID TO DODGE OCTOBER BELLWETHER TRIAL IN EARPLUG MEGA MDL

An upcoming bellwether case over claims that 3M Co’s Combat Arms earplugs were defective and led to hearing damage for U.S. military personnel who used them can go to trial as scheduled next month, a federal judge has ruled.

U.S. District Judge M. Casey Rodgers in Pensacola, Florida denied 3M’s motion for summary judgment in a lawsuit brought by Michelle Blum, who served in the U.S. Army Reserves, National Guard and Army between 1989 and 2009, rejecting the company’s arguments that her claims were time-barred.

3M is facing more than 240,000 claims over the earplugs, known as Combat Arms Earplugs Version 2, which were standard issue for many U.S. military service members between 2003 and 2015. The vast majority of those are consolidated before Rodgers in the largest multidistrict litigation in history.

Three bellwether trials have already been held, one of which resulted in a $7.1 million verdict for three plaintiffs and another in a $1.7 million verdict for a single plaintiff, though the jury found 3M only 62% liable in the latter case. 3M was cleared of liability in the third.

The ruling came after Rodgers scheduled five further bellwether trials in November and December, each involving a single plaintiff. 

Reuters: https://www.reuters.com/legal/litigation/3m-loses-bid-dodge-october-bellwether-trial-earplug-mega-mdl-2021-08-31/