5 Potential MDLs To Watch This September


This year, several companies that provide widely familiar goods and services including Uber, Chrysler, Roundup, Johnson & Johnson and the makers of psychiatric drug Abilify are facing quickly growing lawsuits across the country. The lawsuits include claims involving everything from rogue Jeeps to talcum powder, lawn weed-killer and anti-psychotic drugs. Motions to consolidate and transfer the cases have been submitted. And the Judicial Panel on Multidistrict Litigation ordered a hearing set for September 29, 2016 in Washington, D.C.

 

MDL No. 2738  In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices And Products Liability Litigation

Talcum Powder Lawsuit

Just two earlier cases against Johnson & Johnson’s talcum powder resulted in over $130 million verdicts for the plaintiffs combined. Now, the family company giant faces an MDL where plaintiffs sought to consolidate numerous cases from states all over the country including Louisiana, Mississippi, New Jersey, Oklahoma, Pennsylvania, Tennessee, California and Illinois. According to a recent article, the company has been named as a defendant in over 1,000 cases alleging that Johnson & Johnson talcum powder, a common household item, contributes to the development of ovarian cancer in women who use the product. The suit involves claims that the company caused serious injury to its consumers; in addition to violating consumer protection laws and failing to adequately warn of the risks associated with using the powder.

On September 9, 2016 in a text-only entry the JPML granted plaintiffs’ motion to file a response in support of their earlier motion for transfer to the Northern District of Illinois and consolidate similar cases from other state districts. In a case such as this, multiple experts may be involved to explain various material aspects of the case to jury members. For example, a physician will be able to explain how and to what degree use of the talcum powder has contributed to plaintiffs’ risk of developing ovarian cancer. Whereas an FDA spokesperson may speak on regulatory practices in the industry for adequate warnings, packaging or even distribution.

 

MDL No. 2741 In Re: Roundup Products Liability Litigation

Round-up Lawsuit

Yet another common household product is at the center of another MDL on the docket for the JPML’s September 29 hearing. Global giant Monsanto Inc. is facing a lawsuit where plaintiffs allege that the company failed to warn consumers about exposure to harmful carcinogens from using Roundup garden maintenance products. Plaintiffs allege that the active ingredient glyphosate in the popular chemical herbicide is definitely linked to the development of Non-Hodgkin’s Lymphoma. The latest federal suit was filed in Camden, New Jersey . The plaintiff, Ricci, claims that her use of the product resulted in her development of the cancer, which she was diagnosed with last year. Though Ms. Ricci’s case is not included in the MDL named in the hearing order, it mirrors the 20 cases that are to be heard this month.

As of July 2016, plaintiffs filed a motion to consolidate the other cases including two from the District of Hawaii and to transfer the entire case to the Southern District of Illinois. Like the case against Johnson & Johnson, expert witnesses in a case like this would be able to explain to a jury the link that may or may not exist between Roundup’s weed-treatment products and non-Hodgkin’s Lymphoma or other related cancers.

According to a recent article on the case, the plaintiffs have cited in the complaint a scientific study conducted in March 2015 by the International Research Center for Cancer, an arm of the WHO linking glyphosate to the cancer. Vice President of Monsanto Co.’s Global Strategy Department Scott Partridge spoke on behalf of the company, flatly dismissing the study and claiming that “[t]he contrived claims that glyphosate causes cancer are based on the erroneous conclusions of a French-based, non-governmental agency of the World Health Organization. IARC and its findings have been thoroughly discredited and rejected by the rigorous scientific research of governmental authorities around the world.”. In addition to explaining the relationship between the chemical glyphosate and the plaintiffs’ injuries, experts may be asked to review the WHO report and give relevant testimony regarding the study.

 

MDL No. 2744  In Re: FCA US LLC Monostable Electronic Gearshift Litigation

Electric Gearshift Lawsuit

Automobile manufacturer Fiat Chrysler is currently battling over the venue for the multiple suits it faces over an allegedly faulty gearshift mechanism that the company continued to market and sell to consumers despite knowledge of the defect. The faulty gearshift has been noted in the company’s Dodge Charger, Chrysler 3000, and Jeep Grand Cherokee models; the same model that Star Trek celebrity Anton Yelchin owned when he was crushed by his own car this past summer.

This case is also on the docket for the September hearing. However the parties are currently in dispute as to where the case should be heard. With Fiat’s motion to transfer 9 cases to the Eastern District of Michigan, two remaining cases where the attorneys insist that Colorado is the most appropriate district to centralize the claims; arguing that Colorado is a bellwether-friendly forum for personal injury claims and mentioning the convenience of Denver International Airport for out of state litigants. However Fiat and even some plaintiffs agree that Flint, Michigan is the appropriate district for the case. “FCA conducts the majority of its significant corporate activities, including research and development, engineering, testing, marketing and sales, in the Eastern District of Michigan.”

If the case is brought in front of a jury, multiple expert witnesses may be required to break down the mechanics at issue in a case involving a vehicle-manufacturing defect. Experts may be called to explain how the defective mechanism carries a higher degree of risk; and whether the carmaker knew or had reason to know of the defect. Moreover, an expert’s testimony will also aid the jury in deciding whether Fiat Chrysler failed to take adequate safety measures or if their conduct grossly deviated from industry standards.

 

MDL No. 2733 – In re: Uber Technologies Inc., Telephone Consumer Protection Act (TCPA) Litigation

Uber Lawsuit

Uber, the dominating online transportation service giant, faces yet another class-action lawsuit as of May 2016. After defeating two class certifications in California just last year, Uber Technologies, Inc. is now defending another lawsuit originally filed in the Northern District of Illinois. Alleging violations of the Telephone Consumer Protection Act, class members claim that Uber’s recruitment and marketing tactics constitute more than mere advertising. Plaintiff Charles Johnson seeks to certify a class of members who have received one or more text messages from Uber without the required consent. Mr. Johnson claims to have received texts from the company offering employment such as “[y]ou’re invited to drive Uber. No schedule. No boss. Sign up now and get a $500 bonus,” though he never agreed to receive any offers from the company.

Under the TCPA, telemarketing requires that recipients provide express written consent. Uber has been successful in defeating lawsuits in other districts where District Judges agreed that the messages were solicitations offering employment and thus required only express consent; a lesser standard than the express written consent requirement for advertisements. District Judges Edward Chen and Jon Tegar of the North District of California found that the recipients had consented by disclosing their phone numbers to Uber when transacting for ride services. If the case reaches the trial stage it may require a witness with expertise in telecommunications. Since part of the judges’ decision rested on the fact that the text messages were not sent by automated systems. However what systems are considered “automated” can be open to interpretation in such a digital age.

Since the lawsuit was initially filed, Plaintiff Carmellia Calmese filed a motion to transfer multiple cases with similar claims including 6 from Florida and 1 from Texas. The case is now pending in front of the Judicial Panel on Multidistrict Litigation in Washington, D.C. and on August 11, 2016 the Panel ordered the upcoming hearing where oral arguments from the parties will be heard. Following the hearing, the panel may select to transfer the case to any district or districts on discretion. Attorney Hassan Zavareei will appear on behalf of plaintiffs and attorney Tiffany Cheung for defendant Uber, Tech., Inc. Whether or not Uber will be able to defeat this class certification hinges on whether the text messages constitute advertisements and whether plaintiff-recipients expressly consented by disclosing their cell phone numbers to the company.

 

MDL No. 2734  In Re: Abilify (Aripiprazole) Products Liability Litigation

Abilify Gambling Lawsuit

More than 13 years ago, Otsuka Pharmaceutical Company, headquartered in Tokyo, Japan manufactured the anti-psychotic drug Abilify. Since it’s debut in the US, over 24 million Americans use Abilify to treat psychiatric disorders such as schizophrenia, bipolar disorder and major depressive disorder.

In 2013, Abilify became highest grossing drug in the world, with annual sales of over $8,000,000,000. Otsuka Pharmaceutical Co. and NY based pharmaceutical company Bristol-Myers Squibb (BMS) are joint defendants in a rapidly growing class-action lawsuit for failure to warn consumers of serious side effects associated with the drug. Namely compulsive behaviors such as gambling and binge food or alcohol consumption. On May 3 of this year, The FDA announced that Abilify’s labels will now include warnings for the risks of “compulsive or uncontrollable urges to gamble, binge eat, shop, and have sex”. As of this year, over 26 cases have been filed and are pending 12 federal districts. On June 24, the parties filed a joint motion to consolidate and transfer the cases to the Northern District of Florida; citing their anticipation that hundreds more will file to join the suit.

With respect to claims involving psychiatric disorders and pharmaceutical drugs, the role of the expert witnesses can be complex. Since jurisprudence in this area is more conflicting than in other personal injury cases in the country. In addition to testimony on the effect of the Abilify on psychiatric patients and its causal link to dangerous compulsive behaviors like gambling, experts may be called to discuss acceptable industry standards for safety and compliance.

About The Author

Mehjabeen Rahman, J.D., is an associate litigator specializing in property and tenant proceedings, debt recovery, bankruptcy, Supreme Court matters, and hearings in Administrative tribunals.

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