Juul Labs Inc. is facing new lawsuits in a consolidated California state proceeding over its marketing of its vape products as safe alternatives to regular cigarettes, with attorneys for the plaintiffs saying there are more complaints to come.

Individual plaintiffs allege that Juul misleadingly marketed its e-cigarette products as safe and targeted youths and young adults with aggressive advertising campaigns, failing to tell potential customers that the products are addictive and unsafe.

Each of the individual plaintiffs allege that they began using Juul’s e-cigarettes as adults and have since suffered from nicotine addiction, seizures, heart and lung problems and other ailments as a result of the allegedly defective and unsafe design of the products.

The suits are part of a consolidated proceeding encompassing thousands of claims in California. That proceeding is separate from the federal multidistrict litigation in the Northern District of California over Juul’s marketing and sales practices.

In the suit, the plaintiffs allege that Juul knew that its products were highly addictive — delivering a more potent dose of nicotine than regular cigarettes — but nonetheless marketed them as a safe alternative to smoking.

The advertising campaign used bright colors, stylish models and other techniques to appeal to youths in particular, and enticed people who had never smoked before into trying, and becoming addicted to, Juul’s products.

The flavors on offer also served to entice young consumers, with several based on fruits, candy and desserts, while advertisements seemed to prop up Juul’s e-cigarettes as desserts themselves, with tag lines like “save room for JUUL” and “indulge in dessert without the spoon” for the crème brulee flavors.

The complaints also allege that Juul, Altria Group Inc. — which acquired a 35% stake in Juul for $12.8 billion in December 2018 — and Philip Morris USA Inc., which is also owned by Altria, defrauded the public by hiding the dangers of the vaping products.

LAW360: https://www.law360.com/articles/1487577

The New York Court of Appeals threw out a $16.5 million verdict awarded to the estate of a woman who died from mesothelioma that allegedly came from tainted talc, saying her estate’s experts had failed to establish that the amount of asbestos the talc product exposed her to was enough to cause cancer.

The judges said neither of the expert witnesses proffered by Francis Nemeth, who administered the estate of his wife, Florence, established a “scientific expression” of her exposure level and dismissed the complaint against Whittaker Clark & Daniels Inc.

Florence Nemeth had used a powder made with talc supplied by Whittaker for 10 years in the 1960s and ’70s and was diagnosed with peritoneal mesothelioma in 2012 before dying of the disease in 2016. Her husband sued numerous defendants involved in the manufacturing and distribution of products he alleged contained asbestos and settled with all defendants except Whittaker.

The case went to trial in 2017 and resulted in the jury awarding $15 million to Florence Nemeth’s estate and $1.5 million to Francis Nemeth, though the award was later stipulated by the parties down to $2.2 million. Whittaker appealed the verdict, and an appeals court affirmed before the case went up to the state’s highest court. 

The majority held that the two experts — geologist Sean Fitzgerald and Dr. Jacqueline Moline, an internal medicine doctor — while qualified, had as a matter of law failed to establish that Whittaker’s talc had caused Florence Nemeth’s cancer.

Fitzgerald had used a “glove box” testing method in which the powder was placed in a sealed container, with gloves attached to agitate the powder and pumps placed where a person’s nose would be to demonstrate how the fibers could be inhaled, and Moline’s opinion was based in part on Fitzgerald’s findings using that testing method.

While Moline had testified that Florence Nemeth’s exposure to asbestos in the powder contributed to her cancer, she also testified that there are some minor exposure levels that don’t increase the risk of mesothelioma and that sometimes the disease develops without a known cause.

The doctor’s testimony was not enough to establish causation, the judges said, because Moline did not quantify what exposure level was necessary for it to cause the disease, or establish that Florence Nemeth had been exposed at such a level.

LAW360: https://www.law360.com/articles/1487523/ny-high-court-tosses-16-5m-mesothelioma-death-verdict

The U.S. Food and Drug Administration said certain NJOY e-cigarettes can be legally marketed, while determining other vaping products made by the company need to be taken off the shelves.

The FDA said it had granted marketing orders to NJOY LLC for its Ace e-cigarette products, which are closed systems and come ready to vape. While the agency said the products can be legally marketed, it noted the order doesn’t mean they are safe or approved by the agency.

“All tobacco products are harmful and potentially addictive,” the FDA said. “Those who do not use tobacco products shouldn’t start.”

The FDA cleared the Ace device and the “classic tobacco” pods containing 2.4% and 5% nicotine, as well as the “rich tobacco” pod containing 5% nicotine. Two Ace pods flavored with menthol are still being reviewed by the agency.

The FDA added that NJOY had to show that marketing the products would “be appropriate for the protection of public health,” and that the company met this standard because chemical testing found the harmful or potentially harmful particle levels in the aerosol from the e-cigarettes was lower than those in traditional cigarettes.

The FDA had a court-ordered Sept. 9 deadline to review pre-market applications for vaping products. On that date, it rejected nearly 950,000 flavored vaping products on the grounds the data in their applications didn’t include sufficient evidence that the benefit to adult smokers outweighed the public health risk of youth use.

The court-ordered deadline resulted from a lawsuit brought by public health groups to speed up the FDA’s regulation of e-cigarettes under the Tobacco Control Act.

The FDA has yet to make a decision on industry giant Juul’s applications.

LAW360: https://www.law360.com/articles/1487560/fda-allows-njoy-e-cigs-to-stay-on-market

 Royal Philips NV has been subpoenaed by the U.S. Department of Justice related to the recall of defective sleep apnea machines and respirators — a recall that’s led to more than 100 lawsuits and multidistrict litigation — the company announced in a U.S. Securities and Exchange Commission.

The company said that Philips Respironics, which manufactured the faulty devices, and several of its U.S. subsidiaries received the subpoena on April 8. They were asked “to provide information related to events leading to the Respironics recall,” Philips said in the filing. “The relevant subsidiaries are cooperating with the agency.”

Philips had come under fire in more than 100 cases filed across the country following a recall of the company’s CPAP, Bi-Level PAP and mechanical ventilator devices containing polyester-based polyurethane sound abatement foam, or PE-PUR foam. According to the June recall, that foam can degrade, releasing bits of foam or chemicals into the machines where patients can inhale them.

The Judicial Panel on Multidistrict Litigation sent the cases to an MDL in the Western District of Pennsylvania, where Philips RS North America LLC — formerly Philips Respironics — had a factory that had manufactured most of the recalled machines.

In November, Philips said that preserving evidence for the MDL was preventing the company from taking back and repairing thousands of defective sleep apnea machines.

Philips objected to a pretrial order barring any “tangible things” that could be evidence in the MDL from being “destroyed” or “altered.”

Respironics had gotten back about 335,000 recalled devices as of when it made the emergency request, and had fixed and sent back about 115,000, Philips said. The Nov. 10 order put a halt on repairs, which would put the company about 56,500 devices behind by the time the parties were scheduled to meet again in mid-December.

LAW360: https://www.law360.com/articles/1487266/philips-subpoenaed-by-doj-over-sleep-apnea-device-recall

A New Jersey federal judge tossed a putative class action alleging Sprout Food Inc. falsely advertised its baby food products as “healthy” and “organic” despite containing allegedly unsafe levels of toxic metals, finding that the alleged harm is “simply speculation” and the consumers don’t have standing to sue.

U.S. District Judge Stanley R. Chesler held that the proposed class action filed by parents who purchased Sprout baby food products sufficiently alleged there were levels of heavy metals in a dozen Sprout baby food products.

However, the judge said the lawsuit doesn’t allege those levels of heavy metals substantially increased the risk of future harm to their children, particularly since the U.S. Food and Drug Administration stated in a letter last year that “at the levels we have found through our testing … children are not at an immediate health risk from exposure to toxic elements in foods.”

The ruling is the latest development in one of dozens of similar lawsuits against baby food manufacturers over the acceptable levels of heavy metals in such products and labeling requirements.

The flood of litigation followed the February 2021 release of a report from the U.S. House Committee on Oversight and Reform, which showed that heavy metals were present at dangerous levels in baby food made by Sprout Foods and six other major manufacturers. The report was put together by the Subcommittee on Economic and Consumer Policy.

While four companies provided test results and other information, Sprout Foods and two other businesses refused to cooperate with the subcommittee’s probe, which cited a 2019 report from nonprofit Healthy Babies Bright Futures, or HBBF, which said independent testing revealed heavy metals in certain Sprout Foods products.

Named plaintiffs Irida Kimca of Orange, Connecticut, and Derrick Sampson of Forest Park, Illinois hit the Montvale, New Jersey-based Sprout with the present lawsuit in June, and amended their complaint in December to add more plaintiffs.

The judge noted that the complaint doesn’t say whether the FDA’s acceptable levels of heavy metals are specifically applicable to baby food, and other district courts in rulings like Boysen v. Walgreen Co. have concluded that it’s not appropriate to compare products like baby food to water bottles to establish injury at the motion to dismiss stage.

In addition, Judge Chesler ruled that the plaintiffs also don’t have standing to seek injunctive relief, because even if they were harmed by the product’s labels, it’s “common sense” they are now aware of the products’ alleged risks and won’t be deceived again.

LAW360: https://www.law360.com/articles/1487221/sprout-beats-parents-baby-food-heavy-metal-suit-in-nj

Mazda and an automotive parts manufacturer were hit with a proposed class action in New York federal court by a driver who claims the companies knew about a dangerously defective fuel pump that could cause vehicles to suddenly shut down but failed to disclose it.

New Yorker Tamerlane T. Bey II, who represents himself, said Mazda knew about the defect for years but didn’t alert the public until a recall in November of about 121,000 vehicles equipped with the fuel pumps made by Denso Corp. Even though the defect can cause cars to suddenly stop, posing a safety risk, Mazda didn’t tell owners to cease driving until the cars were repaired, Bey said.

Additionally, instead of following the industry standard and replacing the entire fuel pump, Mazda told technicians to only replace the fuel pump motor, which is difficult to do and can damage the entire fuel pump and worsen the defect, Bey said.

The defect is a safety problem because a vehicle that suddenly stops is at risk for collision, Bey said. Drivers left stranded on the road are also at risk from other vehicles or inclement weather.

Bey owns a 2018 Mazda 6 that has the allegedly defective fuel pump and, on at least six occasions, the car’s acceleration was interrupted.

In July 2020, Mazda recalled cars with the fuel pump in China, Japan, Thailand, Malaysia, Vietnam and Mexico.

Mazda didn’t recall vehicles with the defective pump in the U.S. then because of “logistic conditions, typical customer usage and other factors.”

LAW360: https://www.law360.com/classaction/articles/1487084/mazda-parts-maker-sued-over-allegedly-faulty-fuel-pumps

The federal government urged a Florida federal judge to deny a request by 3M to force the U.S. Department of Defense and U.S. Department of Veteran Affairs to produce discovery in sprawling multidistrict litigation over the company’s allegedly defective earplugs, arguing that 3M waited too long.

Even though discovery in this wave of litigation began in November, 3M only started requesting discovery and employee depositions from the government in mid-February to late March. The discovery deadline was April 1, and the company didn’t ask for an extension, let alone explain why one would be justified.

For about two years, the agencies said that they have been processing an “unprecedented” number of document and deposition requests in the litigation, which neither is a party to.

The MDL, consolidated in 2019, includes more than 280,000 service members and others who claim that their hearing was damaged from using 3M’s CAEv2 earplugs. So far, 3M has scored six wins in the 14 test trials to date, while plaintiffs have won verdicts totaling about $200 million in eight bellwether trials.

3M argued that its discovery requests complied with Touhy regulations, which stem from the U.S. Supreme Court’s ruling in ex rel. Touhy v. Ragen and dictate when a government employee may be called to testify by a private party. By preventing 3M from deposing servicemembers’ medical providers, 3M argued that the agencies limited the company’s ability to develop defenses.

LAW360: https://www.law360.com/articles/1485307/3m-waited-too-long-for-discovery-in-earplug-mdl-feds-say

A Florida appeals court reversed $3.25 million in punitive damages against R. J. Reynolds in an Engle-progeny case, applying a state’s high court decision in another Engle case on how to apply punitive damages in cases over deaths after 1999.

The Florida Supreme Court in November held in another Engle-progeny case that because a smoker died in 2007, after a 1999 law limiting punitive damages, that a punitive damages award should be reversed. In that case, the high court said that the statute applies to all causes of action arising after the law went into effect in 1999 and that a wrongful death cannot be a cause of action until a death, regardless of when the fatal disease was first diagnosed.

In the instant case, Dorothy Durrance died in 2000 of chronic pulmonary disease, which manifested before the 1999 law took effect. The suit was brought by her children, Janice Jones and former Florida Circuit Judge Julian Dale Durrance.

While the Second District court of appeal in March 2021 initially affirmed the punitive damages award, the question of whether the 1999 law would apply to the award was certified to the Sunshine State’s high court.

That question was decided in Sheffield v. R.J. Reynolds Tobacco Co., in which the Florida Supreme Court ruled that Mary Sheffield’s wrongful death action arose upon her husband’s death in 2007 and not at the time he was diagnosed with lung cancer in 1994.

The 1999 law bars punitive damages for conduct on which punitive damages have already been imposed against a defendant in any action alleging harm from the same conduct. R.J. Reynolds said it has already paid more than $500 million in punitive damages in Engle progeny cases, a sum the Florida Legislature decided was enough to pay for the company’s concealment of the dangers of smoking from the public.

Durrance’s suit, and the Sheffield case, were among the many suits spun off from the landmark Engle v. Liggett Group case, in which the Florida Supreme Court in 2006 upheld an appeals court decision overturning a $145 billion verdict but allowed class members to sue tobacco companies individually using the Engle jury’s liability findings about the industry and its role in downplaying the dangers of smoking.

LAW360: https://www.law360.com/articles/1485763/fla-court-reverses-3-25m-in-damages-in-engles-case

 A law firm representing ovarian cancer patients urged a New Jersey bankruptcy court to boost their profile in the Chapter 11 case of a Johnson & Johnson talcum powder liability unit, telling the judge that mesothelioma patients unfairly dominate the pool of claimants seeking compensation.

Aylstock Witkin Kreis & Overholtz PLLC underscored the firm’s earlier sentiments urging U.S. Bankruptcy Judge Michael Kaplan to modify the composition of the tort committee claimants who claim their illnesses were caused by asbestos-tainted talcum powder. Ovarian cancer patients represent 99% of the tort creditors with a stake in LTL Management LLC’s Chapter 11 case, yet mesothelioma patients comprise 40% of the committee.

The supplemental statement bolsters Aylstock Witkin’s April 8 motion asking the court to modify the committee’s makeup to adequately represent ovarian cancer patients, and underscores the “colloquy” the firm had with the court on the topic during an April 12 hearing. In its April 8 motion, the firm proffered three of its clients for inclusion in the committee.

The Chapter 11 case was spurred by roughly 38,000 lawsuits by individuals and estates accusing Johnson & Johnson of hiding asbestos in its signature product. 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 case was later transferred to New Jersey, where J&J is headquartered.

Aylstock Witkin said in its April 8 motion that the litigation includes only 430 lawsuits by mesothelioma patients. In New Jersey, the Office of the U.S. Trustee “attempted to remedy” the imbalanced representation by splitting the tort claimants into two committees representing ovarian cancer patients and mesothelioma patients.

But the tort claimant body was set to revert to a single entity on April 12, per a court order requested by LTL.

Ahead of the reinstatement of the original committee, the U.S. trustee said in an April 11 court filing that it “takes issue” with Aylstock Witkin’s request that the court directly modify the committee since the U.S. Bankruptcy Code tasks the U.S. trustee with appointing committee members after a court finds that a committee’s representation isn’t adequate.

LTL also weighed in on Aylstock Witkin’s requested relief, arguing in an April 11 motion that it was premature because the reinstated committee had yet to be reconstituted and there was “no basis” to conclude it wouldn’t adequately represent the claimants.

Aylstock Witkin’s motion is scheduled for oral arguments on May 4.

LAW360: https://www.law360.com/articles/1485883/ovarian-cancer-patients-want-louder-voice-in-j-j-unit-ch-11

A jury this week ordered Becton, Dickinson and Co to pay $255,000 to a man who sued the company, alleging he had been injured by its hernia repair surgical mesh.

The verdict in Columbus, Ohio federal court comes in the second bellwether trial in a multidistrict litigation over the company’s hernia mesh products, which were sold by C.R. Bard Inc before its 2017 acquisition by Becton Dickinson. The first bellwether trial last year ended with a verdict in favor of the company.

More than 16,000 cases have been consolidated before Chief U.S. District Judge Edmund Sargus in Columbus, in the third-largest pending MDL nationwide. Plaintiffs claim that the mesh products caused infections, pain, inflammation and other problems.

A hernia is a protrusion of an organ through a weak spot in a muscle or connective tissue wall. Becton Dickinson maintains that its hernia repair mesh is safe.

This week’s verdict came in a case brought by Antonio Milanesi, who had Bard’s Ventralex mesh implanted during a hernia repair in 2007, and his wife, Alicia Morz De Milanesi. They claimed that Milanesi developed an infection and bowel abscess because of the mesh, requiring a second surgery in 2017.

Like other plaintiffs in the MDL, the Milanesis say the mesh products are defectively designed because their polypropylene material degrades when implanted in human tissue.

Becton Dickinson is also facing state court lawsuits over its hernia mesh. The company said in its most recent quarterly report that it faced more than 26,000 pending hernia mesh lawsuits, most in the Ohio MDL or in a coordinated litigation in Rhode Island state court.

Surgical mesh has been the subject of frequent litigation, with MDLs consolidated for similar claims over mesh products sold by Johnson & Johnson’s Ethicon unit and Getinge’s Atrium Medical Corp, which last December said it had agreed to settle all claims for $66 million. The MDL against Ethicon remains pending, and no trials have yet taken place.

REUTERS: https://www.reuters.com/legal/litigation/becton-dickinson-ordered-pay-255k-hernia-mesh-trial-2022-04-15/