The Florida federal judge overseeing the multidistrict litigation over allegedly defective 3M earplugs that harmed service members’ hearing dismissed claims brought by 20,000 veterans who failed to submit proof that they had served.

U.S. District Judge M. Casey Rodgers said that the MDL has been pending for more than three years and, during that time, all veterans who wore the Combat Arms Earplugs Version 2 earplugs during their service have been on notice that filing proof that they served in the military is “a fundamental” requirement in pursuing their claims.

Judge Rodgers dismissed the claims without prejudice. Active-duty plaintiffs and non-veterans have until June 6 to file a motion to reopen their cases, along with a statement about the status of their military service.

The MDL, consolidated in 2019, includes more than 280,000 service members and others alleging hearing damage as a result of using 3M’s CAEv2 earplugs, which they say were defective.

3M has argued that service members were allowed to flood the administrative docket with unvetted claims.

However, the judge has disputed 3M’s argument that a lack of filing fees and other filing requirements have allowed the administrative docket to be filled with frivolous claims. In an April order, she shut down 3M’s bid for an order to make more than 180,000 plaintiffs immediately pay filing fees, saying the fees were never waived, and there is no feasible way to accelerate payments as 3M requested.

So far, there have been 15 bellwether trials in the litigation, with six wins for 3M and nine for plaintiffs. The most recent trial ended with a $2.2 million verdict on April 29 to Jonathan Vaughn, who served a tour of duty in Iraq and has been using a hearing aid since 2012.

Judge Rogers has also ordered the parties to prepare nearly 1,000 cases for trial this year,

LAW360: https://www.law360.com/articles/1491488/more-than-20-000-claims-axed-in-3m-earplug-mdl

Walgreen Co. gives the impression that Marlboro menthol cigarettes are just like any other cigarettes and doesn’t warn consumers that the menthol makes them “far more dangerous and addictive” than other tobacco products, according to a proposed class action filed in Florida federal court.

Plaintiff Fernanda Price said that adding menthol to tobacco products covers up unpleasant flavors and increases their appeal, fueling addiction among children and young adults, and yet Walgreens doesn’t provide any warning about the increased health risks of menthol cigarettes. 

Tobacco products with menthol can also be harder to quit because they can enhance the effects of nicotine, with studies suggesting that banning menthol cigarettes in the U.S. would lead an additional 923,000 smokers to quit and 633,000 fewer deaths.

In 2009, then-President Barack Obama signed the Family Smoking Prevention and Tobacco Control Act, which authorized the U.S. Food and Drug Administration to regulate tobacco products and prohibited all flavors in cigarettes. The law didn’t ban menthol, but Congress still recognized that the ingredient could pose unique health risks in cigarettes.

The FDA in 2010 then organized a Tobacco Product Scientific Advisory Committee, which found, among other things, that menthol produces a number of sensory effects, including reducing the irritating effects of tar and nicotine, making those cigarettes more palatable.

The committee’s report concluded that adding menthol to cigarettes increased addiction in young smokers, increased the rate of regular smoking and resulted in a lower success rate for African Americans trying to quit smoking.

The FDA announced a plan to ban menthol cigarettes and flavored cigars, citing the flavoring’s outsize impact on minorities.

But despite these alarming findings, Walgreens didn’t tell its customers about the dangers of the menthol cigarettes on its shelves.. Price, who has bought menthol cigarettes from Walgreens for several years and believed she was buying ordinary cigarettes, said she wouldn’t have bought them if she’d known about the risks.

Price said she read and relied on the packages and advertising for the menthol cigarettes that misrepresented them as typical cigarettes that were no more dangerous than any other. She said Walgreens should not be allowed to sell menthol cigarettes or, at the least, should provide a warning that they pose an increased risk.

Price wants to represent a nationwide class of people who have bought menthol cigarettes from Walgreens over the past four years.

The suit claims a violation of Florida’s Deceptive and Unfair Trade Practices Act, negligent misrepresentation and breach of implied warranty. It seeks injunctive relief, disgorgement of profits, damages and attorney fees, among other things.

LAW360: https://www.law360.com/articles/1490686/walgreens-hid-menthol-risk-in-cigarettes-buyer-says

The cannabis industry should brace itself for a surge in consumer class actions as the market matures and the plaintiffs bar grows more sophisticated, a panel of product liability experts said.

Panelist Ian Stewart, co-chair of the cannabis practice at Wilson Elser Moskowitz Edelman & Dicker LLP, noted that most product liability claims could be sorted into two categories: those that allege bodily injury due to some defect in the way the product was made or marketed, and those that claim products were labeled inaccurately. He said claims in the first category, which often carry heftier liabilities, are relatively uncommon in the cannabis space, but that could change soon.

Co-panelist Jasmine Wetherell, a civil litigator who is of counsel at Perkins Coie LLP, said the situation in the food and beverage industry, which has become a major target for consumer class actions, could serve as a helpful harbinger of what the cannabis industry faces as it continues to grow.

According to a Perkins Coie analysis cited by Wetherell, there were a few dozen consumer protection actions filed against food and beverage companies in 2012; last year the number had surged to more than 350, she said.

She noted that the vast majority of claims are being brought under state consumer protection laws, either those on the books in California or others closely modeled on them.

Some claims have alleged that the product doesn’t do what it purports to do — a warning for the marijuana industry, whose boosters have been enthusiastic in selling the public on the plant’s purported medicinal and spiritual benefits.

“We all know cannabis is often touted for having miracle abilities, but these claims are really risky under [consumer protection laws],” Wetherell said.

Wetherell noted that consumers could also allege that cannabis products don’t contain what they purport to contain. She pointed to similar lawsuits alleging that yogurt and kombucha brands did not have the live cultures listed on their labels and warned that cannabis companies listing their full manifest of cannabinoids could open them up to similar complaints.

“Here we could see that translates to allegations that, on a simple level, the product doesn’t contain the amount of CBD or THC it claimed to have, and therefore we overpaid for it,” she said.

The panelists noted that the standards of proving liability in other industries — a risk-benefit analysis or an assessment of what a reasonable consumer could expect — are lacking in cannabis so far because the expertise and consensus are not yet there, but that could all change as the market grows.

“We don’t have enough consumers who are knowledgeable about the product to have formed those expectations,” said Stewart. “That’s a hurdle for the plaintiffs to get over, but I think as time goes on they’re going to be able to make these cases.”

LAW360: https://www.law360.com/articles/1490205

A proposed class of buyers is suing Procter & Gamble Co. in Ohio federal court, saying the company misled them about the safety of aerosol sprays such as Old Spice and Secret deodorants after a report showed that they contain a known carcinogen.

The class — led by named plaintiffs Cheri Casolari, Dan Lewis, Berenice Bernier, Chaka Theus and Sondra Trent — aims to represent a nationwide class as well as subclasses for Illinois, Arizona, California and Florida residents who bought the products.

Independent laboratory Valisure LLC tested a variety of antiperspirants and deodorant sprays in 2021 and found that a number of Procter & Gamble’s products contained benzene, which is recognized as a human carcinogen that is found in crude oil and cigarette smoke.

Benzene is also linked to leukemia and other blood disorders. Under U.S. Food and Drug Administration regulations, no amount of benzene is acceptable in the kinds of aerosol spray products that Procter & Gamble sells.

After Valisure’s report came out, Procter & Gamble in November 2021 announced the voluntary recall of certain sprays under its Old Spice and Secret brands, and in December 2021 issued an additional recall for products under the Pantene, Aussie, Herbal Essences and Waterless brands, all because of the detection of benzene.

The products do not list benzene as an ingredient, and that Procter & Gamble has indicated that it does not use benzene in any of its products. Therefore, the presence of benzene as detected by Valisure indicates that the products were contaminated, and that those representations were false.

While Procter & Gamble’s recall notices instructed buyers to go to the various brands’ websites to learn how to receive reimbursement, the class called these offers “nonexistent or illusory,” as the information is either buried deep within the sites or missing altogether, or requires that customers further contact the company via chat, email or phone, making the process needlessly cumbersome.

The complaint includes claims for breach of express and implied warranty, violation of the four states’ consumer protection, warranty and false advertising laws, and unjust enrichment.

The classes are seeking an order blocking Procter & Gamble from continuing to falsely advertise its products as being free from benzene, as well as restitution and disgorgement of profits and compensatory and punitive damages.

LAW360: https://www.law360.com/articles/1489231/procter-gamble-sued-over-carcinogen-in-deodorant-sprays

A California federal judge won’t let Juul Labs Inc. and Altria Group Inc. cut the bulk of claims from a teenager’s suit alleging that they deceptively advertised their vaping products to minors, saying there are fact questions about whether the girl saw or was affected by advertising for the e-cigarettes.

U.S. District Judge William H. Orrick largely denied bids for partial summary judgment filed by Juul and Altria in a suit brought by a minor identified as B.B., dismissing only those claims that B.B. abandoned during the summary judgment briefings.

The case is one of hundreds in the California-based multidistrict litigation concerning Juul’s marketing of electronic cigarettes.

B.B. began using Juul’s e-cigarettes when she was 12 in 2017, after she was given some by a friend, and has continued to use them. She alleged that advertising of the products made them seem healthy and safe, and that if she’d known the dangers, she would have either stopped using them, or not used them in the first place.

Her suit brought 17 claims against Juul and Altria, including strict liability, failure to warn, negligence and misrepresentation claims. Juul moved to dismiss her fraud, failure to warn, breach of warranty, manufacturing defect, failure to recall and medical monitoring claims, while Altria had sought to dismiss her common law negligence and gross negligence claims, negligent misrepresentation, fraudulent concealment and medical monitoring claims.

Juul argued that B.B. hadn’t shown that she relied on the advertisements, as she did not initially buy the vaping products, so she can’t claim that those advertisements caused her to pick up and continue vaping.

Judge Orrick said, however, that  B.B. identified the types of advertising materials she was exposed to and testified that she hadn’t noticed the warnings on those advertisements because they were not prominent.

Altria had first argued that B.B.’s claims under common law were subsumed by the Tennessee Products Liability Act, saying that it is not a manufacturer covered by the terms of the act in regard to B.B.’s claims.

The panel said however,that  B.B. has introduced evidence that could lead a juror to conclude that Altria’s ongoing talks with Juul encouraged Juul to continue reaching out to the youth market in ways that affected B.B.’s decision to vape and keep vaping.

LAW360: https://www.law360.com/articles/1489202/juul-and-altria-can-t-cut-most-claims-from-teen-s-vaping-suit

A Florida appeals court won’t let Philip Morris USA Inc. escape a $2.5 million verdict won by the daughter of a smoker who alleged the cigarette maker was responsible for her father’s death, saying trial evidence was enough for the jury to conclude the man relied on the company’s advertising to his detriment.

The panel said Sabrina Cuddihee had specifically identified what advertisements her father, Gil Cuddihee, had seen and engaged with, and how he relied on those advertisements in his decision to switch to a “lighter cigarette” for health reasons.

Gil Cuddihee began smoking when he was 14, and primarily smoked Philip Morris brands. He developed lung cancer and died at the age of 41, and his estate, currently represented by his daughter, sued, eventually winning a $2.5 million verdict against Philip Morris, with the jury finding Gil Cuddihee had been 35% at fault.

Philip Morris then moved for a directed verdict, and that motion was denied, prompting the appeal, in which the company argued that there had not been sufficient evidence for the jury to conclude that Gil Cuddihee had relied on misrepresentations in its advertisements.

The panel said the estate directly connected Philip Morris’s statements with Gil Cuddihee’s decision to switch to a supposedly low-tar, less-addictive brand of cigarettes for health reasons.

Witnesses from his family testified that he switched to the low-tar Merits brand of cigarettes after developing a cough, and believed it to be a healthier brand based on Philip Morris’s advertisements.

In addition, Sabrina Cuddihee had testified that her father had quoted those advertisements nearly verbatim when talking about his decision to switch to what he believed was a safer cigarette.

Cuddihee’s case is one of thousands filed by members of the class decertified by the Florida Supreme Court in 2006 in Engle v. Liggett Group Inc. The decision decertified the class and overturned a $145 billion verdict but allowed the individual plaintiffs to sue the tobacco companies independently and to use the Engle jury’s eight liability findings in their suits.

LAW360: https://www.law360.com/articles/1490303/philip-morris-can-t-undo-2-5m-verdict-in-engle-death-suit

A New Jersey bankruptcy judge denied a slate of motions seeking to expand the talc claimants committee in the Chapter 11 case of a Johnson & Johnson unit, saying that the panel’s current composition adequately represents the interest of people allegedly injured by the company’s talc products.

U.S. Bankruptcy Judge Michael B. Kaplan said the 11 current members of the committee have not been accused of breaching their fiduciary duties to represent all talc claimants and that the group as it exists now has been working well. Disrupting the status quo could harm LTL Management LLC as it pursues a talc settlement.

The court made its decision based on Section 1102(a)(4) of the bankruptcy code, which allows the Office of the U.S. Trustee to expand the committee if such an expansion is necessary to provide adequate representation for a creditor constituency. In the LTL Management case, five talc claimants had petitioned the bankruptcy court for appointment to the committee, which has already taken various forms in the proceedings.

Originally appointed by the bankruptcy administrator in the North Carolina bankruptcy court where the Chapter 11 case was initially filed, the committee has been split into two groups representing mesothelioma claimants and ovarian cancer claimants; fused back into one cohesive committee, expanded to 16 members; and reduced back to its original 11-member makeup.  

Attorneys for the movants argued that the expansion was needed to provide adequate representation in the form of increased diversity of claimants based on race, residency, nationality, nature and severity of illness, and claim value.

While Judge Kaplan said those intentions were honest, he determined that no additional representation was needed on the committee.

The Chapter 11 case was spurred by roughly 38,000 lawsuits filed by individuals and estates accusing Johnson & Johnson of hiding asbestos in its talcum powder products. J&J spun off LTL Management from a subsidiary, assigned it the company’s massive tort liability, and placed it into bankruptcy in North Carolina in October. The corporate transactions are what is known as a “Texas two-step,” which allows a company to retain its assets and commit to funding a claims trust in the bankruptcy without filing for bankruptcy itself. The case was later transferred to New Jersey, where J&J is headquartered.

LAW360: https://www.law360.com/articles/1490035/expanded-talc-claim-committee-nixed-in-j-j-unit-s-ch-11

A Florida federal jury awarded $2.2 million to a service member claiming he suffered hearing loss as a result of faulty earplugs made by 3M, the 15th bellwether verdict in sprawling multidistrict litigation against the company. 

The jury awarded Jonathan Vaughn, who served a tour of duty in Iraq and has been using a hearing aid since 2012, $2 million for past and future pain and suffering, inconvenience, emotional stress, and impairment of quality of life, tacking on another $200,000 award for physical impairment.

The jury found that defects in 3M’s CAEv2 earplug were the cause of Vaughn’s hearing impairment. It also found that the company was negligent and that it fraudulently misrepresented and concealed facts about the earplugs.

The MDL, consolidated in 2019, includes more than 280,000 service members and others who claim their hearing was damaged from using 3M’s CAEv2 earplugs, which they say were defective.

The largest verdict to date is $110 million, awarded to a pair of Army veterans in January, while recent trials in March ended in a $50 million verdict in favor of another Army veteran and an $8 million win for U.S. Army National Guard veteran.

Earlier this month, a Florida federal jury handed 3M its sixth win, finding that there was no design defect in the earplugs a female veteran blames for causing hearing loss while on deployments in Iraq and Kuwait.

In December, a Florida federal jury found that the company and its subsidiary, Aearo Technologies LLC, were not responsible for an Army veteran’s tinnitus and hearing loss from combat during a deployment to Iraq.

The judge overseeing the MDL has ordered the parties to prepare nearly 1,000 cases for trial this year.

LAW360: https://www.law360.com/articles/1489159/3m-hit-with-2-2m-verdict-in-latest-earplug-bellwether-trial

A Florida federal jury has hit Coloplast Corp. with a $2.5 million verdict in a suit from a woman saying one of its pelvic mesh products was defective, causing an infection and pelvic pain after it was implanted.

The jury found that Virginia Redding and her physician relied on Coloplast’s representations of the mesh as safe and found that defects in the mesh’s design led to Redding’s injuries.

Redding was 58 when she underwent pelvic reconstruction surgery in December 2009, in which two of Coloplast’s products — NovaSilk mesh and a Supris sling — were used.

Redding reported pain immediately after the surgery and continued feeling pain and “heaviness”. Two weeks after the surgery, Redding’s physician told her she had an infection and that the mesh was eroding.

Redding filed suit in September 2014, using a short form complaint as part of multidistrict litigation about Coloplast’s mesh products in West Virginia federal court. The case was transferred to the Middle District of Florida in September 2019.

During the case, Coloplast argued that Redding should have known that the alleged defect was the cause of her injuries as soon as her doctor told her the mesh was eroding. Redding argued that she believed her post-surgery pain and the erosion were normal and only realized that there was a defect when she saw a commercial about it in 2014.

While the jury found that the evidence did not show that the Supris sling was defectively designed or that Coloplast had failed to warn Redding’s physician about its risks, they did find that the NovaSilk mesh had a design defect.

The jury further found that Coloplast had not sufficiently warned Redding’s physician about the risks associated with the mesh and that the failure to warn was the cause of Redding’s injuries.

The jury did not find evidence to support punitive damages against Coloplast.

LAW360: https://www.law360.com/articles/1488011/coloplast-hit-with-2-5m-verdict-in-pelvic-mesh-trial

The U.S. Food and Drug Administration announced a proposed ban on menthol cigarettes and cigars, following a pledge a year ago to bar the flavor for its outsized impact on minorities.

The FDA said that in 2019 there were more than 18.5 million smokers of menthol cigarettes above the age of 12, with high rates among young people and African Americans and other minorities. Studies estimate that a ban on menthol cigarettes would reduce smoking by 15% within 40 years, the FDA said, and prevent 324,000 to 654,000 deaths due to smoking-related diseases.

A ban on menthol would also discourage youth from picking up smoking, the FDA said.

Congress passed the Family Smoking Prevention and Tobacco Control Act in 2009, creating a flavor ban in cigarettes but excluding menthol. Congress instructed the FDA to research the flavor.

The FDA first proposed banning menthol in 2018. In the past several years, the agency has also taken steps to limit e-cigarette flavors that attract young people.

The public can comment on the proposed rule. The agency said that it is seeking input on policy concerns over potential racial and social justice impacts of the proposed ban.

The FDA said that it won’t take action against individuals for possessing or smoking menthol cigarettes or cigars.

If the proposed rules are finalized, the FDA will only take enforcement action against manufacturers, distributors, wholesalers and retailers over menthol cigarettes.

State and local law enforcement agencies do not enforce the Federal Food, Drug and Cosmetic Act and can’t take action against any violation of the FDA’s tobacco regulations.

LAW360: https://www.law360.com/articles/1488349/fda-proposes-menthol-ban-in-cigarettes