DEPUY ESCAPES IMPLANT SUIT AFTER EXPERT IS LIMITED

A New York federal judge freed DePuy Orthopaedics Inc. from a suit alleging components it manufactured were defective and caused a hip implant to injure a patient, after finding that an expert’s testimony was correctly limited to exclude discussion of DePuy’s products.

U.S. District Judge Lewis J. Liman found that plaintiff Jodi Rouviere  lacked the evidence and testimony to link DePuy’s conduct to her injury.

Rouviere alleges that she was injured after receiving a defective hip implant with parts manufactured by Howmedica and DePuy Orthopaedics Inc., as the parts conflicted with one another and caused pieces to move out of the area they were supposed to be in. With DePuy’s summary judgment, Howmedica is the only defendant remaining in the suit.

After Rouviere’s first expert “mysteriously” withdrew, the second expert they found was disqualified because he had previously been used as an expert by DePuy in other litigation concerning its hip implant parts, resulting in Rouviere’s offer of Dr. John Jarrell as a third expert.

While Judge Liman found there was sufficient evidence to create a dispute as to whether DePuy had a duty to warn and whether the warnings on its products were adequate, he found that Rouviere fell short of showing that any different warnings would have changed her doctor’s behavior.

Rouviere’s doctor had in fact testified that he will continue to use DePuy’s products, even with what he knows now, and Rouviere hasn’t put forth any evidence that her doctor, or any other doctor, would change what parts they use if DePuy changed its warnings.

That there’s no evidence that additional warnings would have changed the doctor’s choice of tools also applies to his choice of warnings, saying there’s also no evidence that the doctor would have told Rouviere more about the products if DePuy had put different warnings on its products.

LAW360: https://www.law360.com/articles/1422946/depuy-escapes-implant-suit-after-expert-is-limited

PATIENT SAYS REMOVAL OF ETHICON MESH DIDN’T TIP HER TO INJURY

A Pennsylvania woman didn’t connect the dots between a painful, pinching sensation and an Ethicon hernia mesh, even though her surgeon told her it “didn’t work” in 2008, so the clock didn’t start ticking on when she could sue the company, her attorney told a Pittsburgh federal judge.

As a layperson, Nancy Yelinek didn’t realize she’d even had a hernia mesh put in five months earlier, let alone that its alleged defect was the cause of her injury after a different surgeon removed it and told her it did not work, said Benjamin Kelly of Friday & Cox, representing Yelinek.

The hearing focused on whether Ethicon could beat the case on summary judgment, based on its argument that the two-year statute of limitations started running with Yelinek’s mesh removal surgery in 2008. Yelinek’s attorney said a jury should decide whether the time limit had been paused by the discovery rule — that she hadn’t been able to connect her pain to the specific product.

Yelinek had her bladder surgically removed, and had an Ethicon hernia mesh implanted in July 2008 to repair a hernia that had cropped up. But the hernia came back, and a different surgeon had to repair it and remove the mesh in December 2008.

Upon removing the mesh, the second surgeon told Yelinek that it had “failed,” it “didn’t work,” and it had become “balled up” — which meant she should’ve known it was defective and the cause of the pinching and painful sensations she’d reported earlier, said Frederick W. Bode III of Dickie McCamey & Chilcote, representing Ethicon.

Kelly said that Yelinek didn’t realize her prior surgeon had implanted the mesh and that it should be up to a jury to weigh the testimony in the case and decide whether her conversations with the second surgeon were enough to put her on notice and start the countdown for her claim — or whether it was the TV commercial years later. As a layperson without any medical expertise, she wouldn’t be expected to know how much of her discomfort was attributable to her prior surgeries, he said.

LAW360: https://www.law360.com/articles/1422612/patient-says-removal-of-ethicon-mesh-didn-t-tip-her-to-injury

MASS. AG DEAL CAN’T SAVE PHILIP MORRIS FROM $10M PUNITIVES

The Massachusetts Supreme Judicial Court ruled that the widow of a smoker could keep $10 million in punitive damages she won in a trial against Philip Morris, saying a 1998 settlement involving the state’s attorney general doesn’t bar the award.

In a question reviewed de novo, the state high court said the widow, Pamela Laramie, can keep the punitive damages she won in a wrongful-death case against Philip Morris.

The cigarette company had argued that a 1998 settlement it reached with Massachusetts’ attorney general precluded punitive damages for Laramie. But the high court said the cases are completely different.

The attorney general’s claims were brought under consumer protection law, and that suit sought to redress excess medical costs the state incurred because of cigarette smoking.

The 1998 consent decree required Philip Morris to pay hundreds of millions to the state every year in perpetuity.

Laramie was also awarded $11 million in compensatory damages, which were not at issue in this appeal.

In May, members of the judicial panel noted that the AG pact was meant to settle the public costs and Medicaid dollars poured into tobacco-related issues.

The cigarette maker had cited in its appeal various alleged mistakes by the lower court judge and evidentiary issues.

Philip Morris said Laramie’s attorneys made inflammatory statements during closing arguments, such as accusing the company of deliberately creating “a whole new different kind of cancer” — adenocarcinoma — because “regular lung cancer wasn’t good enough.”

The high court said that this statement “should not have been made” but didn’t change the outcome of the trial.

LAW360: https://www.law360.com/articles/1421961/mass-ag-deal-can-t-save-philip-morris-from-10m-punitives

GENERIC DRUG COMPANIES IN ZANTAC MDL WANT PLAINTIFFS TO PAY MILLIONS IN DEFENSE COSTS

In July, generic drugmakers won a big decision in the multidistrict litigation alleging that the heartburn medication ranitidine, best known under the brand-name Zantac, causes cancer. U.S. District Judge Robin Rosenberg concluded that all of the claims against companies that made generic versions of the drug were pre-empted by federal drug labeling regulations.

Now those generics defendants are trying to sock MDL plaintiffs for millions of dollars in defense costs.

Is this a brilliant strategy that will prompt future MDL plaintiffs and their lawyers to think twice about filing questionable lawsuits? Or is it a “callous and meritless” bullying scheme that will chill good-faith claims?

Right now, the fight over defense costs is focused on transparency. In August, drug makers  advised the judge that they intended to move for plaintiffs to pay some of their costs under Rule 54 of the Federal Rules of Civil Procedure and Section 1920 of Title 28 of the U.S. Code.

The brief also said defendants would ask for plaintiffs to pay their share of the fees for the MDL’s court-appointed special master. Those invoices, defendants argued, should also be sealed, at least in early filings, because they revealed how defendants allocated the cost of the special master.

The Sept. 13 opposition brief by lead plaintiffs’ counsel in the MDL said defendants are potentially seeking “millions of dollars,” and, moreover, are going to ask for joint-and-several liability that would leave each plaintiff on the hook for all of the costs approved by the court.

Plaintiffs lawyers urged Rosenberg not to allow the generics companies to file their demand for costs under seal. 

The Zantac generics companies are not the first MDL defendants to demand cost reimbursement after defeating plaintiffs’ claims. 

MDL maven Elizabeth Burch of the University of Georgia, who has written about the role of special masters in consolidated proceedings, has not previously heard of an MDL defendant attempting to shift its share of special master fees.

Burch pointed out that it will surely be plaintiffs lawyers, rather than their clients, who actually end up paying whatever costs the court decides to award to the Zantac generics defendants. But depending on the size of the Zantac award, and the number of firms that bear the cost, a ruling for the generics could “potentially have a chilling effect,” she said, especially on claims asserting novel theories or challenging precedent.

Reuters: https://www.reuters.com/legal/litigation/generic-drug-cos-zantac-mdl-want-plaintiffs-pay-millions-defense-costs-2021-09-15/ 

WALMART IS LATEST CO. HIT WITH BABY FOOD HEAVY METAL SUIT

Walmart was hit with a proposed class action in AR federal court after a purchaser of the company’s baby food claims it contains high levels of toxic heavy metals, making the retail behemoth the latest company to face litigation connected to a February House Oversight Committee report.

Plaintiff Tyler Baker alleges that Walmart presented itself as a trusted option for baby food products, but failed to mention that its products contain heavy metals in quantities that are not safe for infants. Baker argues that Walmart misled consumers because it intentionally chose not to disclose the presence of toxic heavy metal levels in its baby food products.

The lawsuit references the findings of a February report from the House Oversight Committee, which revealed that heavy metals were present at dangerous levels in baby food made by seven major manufacturers.

Baker claims that consumers were harmed by purchasing the baby food products and would never have done so had they known that the products contain high levels of toxic heavy metals

Baker seeks to represent a nationwide class consisting of those who bought Walmart’s baby food products. Baker also seeks to establish a VT class and a KY class consisting of those who purchased the Walmart baby food products within their respective states.

The suit claims violation of the Vermont Consumer Protection Act, the Kentucky Consumer Protection Act, breaches of warranty and unjust enrichment. It seeks restitution, damages, attorney fees and an order barring Walmart from selling the baby food products in question until the toxic metals are removed or until the products feature heavy metal disclaimers.

The proposed class also wants an order that directs Walmart to roll out a corrective advertising campaign.

The lawsuit against Walmart follows in the footsteps of similar litigation over toxic heavy metals in baby food.

LAW360: https://www.law360.com/consumerprotection/articles/1417795/walmart-is-latest-co-hit-with-baby-food-heavy-metal-suit

GM EXPANDS CHEVROLET BOLT RECALL OVER BATTERY FIRE RISKS

General Motors LLC said it’s recalling all Chevrolet Bolt electric vehicles due to fire risks tied to two manufacturing defects in the batteries, expanding two previous recalls to include an additional 73,000 newer model vehicles.

The Detroit auto giant said the batteries supplied to GM for the Chevrolet Bolt vehicles may have two manufacturing defects — a torn anode tab and a folded separator — that increased the risk of fire. So, out of an abundance of caution, GM said it’s expanding its existing recall in order to replace the defective battery modules with new modules. The move is expected to cost the automaker an additional $1 billion.

The expanded recall covers an additional 9,335 model year 2019 Chevrolet Bolt vehicles that were not included in the earlier recall, as well as 63,683 model year 2020 to 2022 Chevrolet Bolt vehicles. The company’s previous recall covered approximately 69,000 Chevrolet Bolt vehicles from model years 2017 to 2019.

Chevrolet Bolt owners will be notified when replacement modules are ready, but in the meantime, GM has asked car owners to take certain steps.

It advised customers to set their vehicles to a mode that caps the battery charge at 90%, to charge their vehicles more frequently and avoid depleting the batteries to below 70 miles of remaining range where possible, and to park their vehicles outside immediately after charging and not to leave their vehicles charging indoors overnight.

The 90% charge cap was the result of the company’s first recall of the vehicles in November when it issued a software update to address battery fires that happened when the batteries were fully charged.

The alleged defect and the 90% charge cap have already led to a consumer class action filed against GM in Michigan federal court in December, in which Bolt owners allege that by instituting the cap instead of replacing the faulty batteries, the company deprived them of the vehicles’ advertised mileage range and reliability.

LAW360: https://www.law360.com/articles/1415029/gm-expands-chevrolet-bolt-recall-over-battery-fire-risks

GM MAY GET TEXAS CLASS CT FROM ENGINE DEFECT LITIGATION

A CA federal judge he’s leaning toward decertifying a class of Texas drivers suing General Motors Co. over an engine defect that allegedly sparks fire, saying he doesn’t think Texas’ manifest defect rule would permit it, but added he’s not likely to decertify a class of NC drivers.

U.S. District Judge Edward M. Chen said that he didn’t think a class of Texas vehicle owners claiming a breach of implied warranty of merchantability — whom he had previously granted class certification, along with vehicle owners in California, North Carolina and Idaho — had sufficiently alleged under Texas’ manifest defect rule that an engine defect affected the operation of their GM vehicles.

Judge Chen agreed with GM, saying that if you look at the Texas cases, “manifest seems to mean something that actually affects the operation of the car,” such as a seat belt not working, pulsing of the car or a defective ignition.

Consumers’ claims against the Michigan-based automaker date back to December 2016, when they brought a putative class action alleging that the Generation IV Vortec 5300 LC9 engine contained internal defects that cause the engine to consume high amounts of oil and could lead to safety risks. They allege that the primary cause of the defect is the piston rings installed by GM.

Since the initial complaint was filed, the vehicle owners amended their complaint multiple times and Judge Chen trimmed some claims from the suit. The parties also agreed to follow a bellwether process for class certification.

The classes cover owners of Chevrolet’s Avalanche, Silverado, Suburban and Tahoe vehicles and GMC’s Sierra, Yukon and Yukon XL vehicles from model years 2011 to 2014 with LC9 engines.

LAW360: https://www.law360.com/articles/1414614/gm-may-get-texas-class-cut-from-engine-defect-litigation

VW INKS $42M DEAL TO RESERVE TAKATA AIRBAG MDL

 Volkswagen has agreed to a $42 million settlement to resolve consumer lawsuits over the use of defective Takata Corp. airbag inflators in its vehicles.

The proposed settlement with Volkswagen Group of America IncAudi of America LLC and their affiliates covers 1.35 million vehicles. The deal is modeled on settlements previously approved with seven other automakers in the sprawling multidistrict litigation.

Volkswagen will pay $33.6 million in cash into a non reversionary common fund over a four-year period, with the remaining 20% coming in the form of its funding an “enhanced rental car program.”

The funds will go in part toward an outreach program overseen by an independent settlement special administrator, which will expand upon Volkswagen and Audi’s existing outreach efforts with the goal of increasing recall completion rates among the estimated hundreds of thousands of class members who remain exposed to the danger of rupturing inflators. The program will involve innovative outreach methods, including in-person visits, social media, telephone calls, email and text messaging as well as multimedia ad campaigns.

The settlement will also provide reimbursement for “uncapped but reasonable” out-of-pocket claims, such as for taxi fare and towing expenses as well as lost wages and child-care costs.

Because the funds will not return to Volkswagen, class members can also apply to receive residual payments of up to $250 from funds remaining at the end of each program year. Class members will be eligible to receive up to $500 in residual payments over the four-year settlement term.

Volkswagen will also provide free rental or loaner vehicles to class members who request one while awaiting repair of their recalled vehicles, and it will provide prospective coverage for repairs and adjustments of current and replacement inflators, including parts and labor, for an extended period.

The MDL arose from consumer suits first filed in 2014 that alleged the cheap but volatile ammonium nitrate that inflates airbags made by Takata can misfire, especially in humid conditions, blasting chemicals and metal fragments at vehicle occupants. Takata’s air bag inflators have been linked to at least 11 deaths in the U.S., and the company has faced massive global recalls.

LAW360: https://www.law360.com/articles/1418128/vw-inks-42m-deal-to-resolve-takata-air-bag-mdl

NY JUDGE CONSOLIDATES NURTURE BABY FOOD HEAVY METAL SUITS

A NY federal judge consolidated more than a dozen suits that claim Nurture Inc. manufactured baby food containing dangerous heavy metals, just a few months after similar litigation against another baby food maker, Hain Celestial Group Inc., was joined in another court.

U.S. District Judge Mary Kay Vyskocil  brought the total number of consolidated suits to 17. The deadline for similar lawsuits to join is Oct. 29.

The consolidation accounts only for the personal consumer protection claims against Nurture. Judge Vyskocil ordered that all personal injury claims resulting from the company’s allegedly tainted baby food should be consolidated in a separate proceeding.

These lawsuits were filed following a February report from the House of Representatives Committee on Oversight and Reform that discovered high levels of heavy metals in baby foods produced by Nurture, Gerber Products Co., Plum Public Benefit Corp., Hain, Sprout Foods and Walmart. The report said arsenic, cadmium, lead and mercury were present at “significant levels.”

The consumers in the proposed class actions against Nurture, including lead plaintiff Nicole Stewart of Hauppauge, New York, all cite the report in their lawsuits. Stewart claims she found “dangerous levels” of those toxic heavy metals in her Nuture products, including the “Happy Baby Apple Rice Cakes.”

The companies, for the most part, have resisted efforts to lump lawsuits against each manufacturer into one collection and so far, they’ve been successful. A New York Eastern District judge combined similar claims against Hain Celestial Group in May and kept the actions filed against Gerber Products Co. separate.

LAW360: https://www.law360.com/articles/1418174/ny-judge-consolidates-nurture-baby-food-heavy-metal-suits

GRACO CAN’T BEAT SUIT OVER SAFETY OF CAR BOOSTER SEATS

Consumers allege that Graco Inc. improperly marketed its car booster seats can move forward with most of a consolidated proposed class action because the company made express representations about the effectiveness of the seats.

The proposed class has alleged that representations by Graco about how the seats work in side-impact collisions at least partly informed their purchasing decisions, and there’s enough evidence to let the case move forward at this stage of the litigation.

Atlanta-based Graco labeled, marketed and sold its booster seats as though they were safe for children as small as 30 pounds and as young as 3 years old and suggested that they met federal standards and offered more safety in side-impact collisions.The court rejected Graco’s argument that it wasn’t enough for consumers to claim they would have either purchased another type of seat or paid less for the Graco seat if they’d known that the marketing campaign wasn’t true.

It can reasonably be inferred that the sales pitch played a role in their purchasing decisions.

Judge May did dismiss a request for an injunction to stop Graco from marketing the booster seats as safe from side-impact collisions. None of the plaintiffs said they would buy the seat in the future, and their lack of intent to make future purchases deprives them of standing to pursue the injunction, the judge said.

Instead, the plaintiffs only claim that they wouldn’t have bought the booster seat or would have paid less for them if they’d known how the seat actually performed.

The 21 plaintiffs from 15 different states alleged they were misled by Graco’s assertions that its booster seats are safe for children weighing as little as 30 pounds, and that they are “side-impact tested.”

Graco is arguing in its defense that 30 pounds is the regulatory minimum standard for booster seats, and that there is no federal requirement for side-impact testing and nothing wrong with its own testing.

Cases were brought nationwide against Graco in the first half of 2020 and consolidated in Georgia, where the company is based. The plaintiffs are hoping to get class certification, with sub-classes for plaintiffs in different states.

LAW360: https://www.law360.com/articles/1418086/graco-can-t-beat-suit-over-safety-of-car-booster-seats