In mass tort and class action litigation, 2018 saw several high-dollar verdicts, multiple significant settlements, and ongoing litigation regarding faulty consumer products and dangerous drugs and medical devices.
In 2019, we foresee much of this drug and medical device litigation continuing, along with the evolution of cases involving data breaches and toxic environmental torts. We expect that there may be regulatory changes, particularly in the areas of discovery and jurisdiction, that are likely to impact these cases.
Here’s a broader look at what to keep a watch on in 2019.
- Talc litigation. The recent $4.7 billion verdict for plaintiffs in the J&J talcum powder case will likely continue to reverberate through the courts, even though the case will be appealed. Additional trials are expected in 2019, with claims that talc, some of which may have been corrupted by asbestos, caused ovarian cancer and mesothelioma.
- Monsanto’s Roundup® and cancer. There are multiple trials on the docket in 2019 against Monsanto, whose glyphosate-based herbicide, Roundup, is being linked to various cancers including non-Hodgkin lymphoma. In October, a cancer-stricken groundskeeper was awarded $289 million in punitive and compensatory damages from Monsanto, although the award was subsequently reduced by the judge. Monsanto has announced that it intends to appeal.
- Opioids – Judge Polster of the Northern District of Ohio has scheduled several bellwether trials against opioid manufacturers, distributors and retailers in 2019. Given the wide-ranging societal impacts of the opioid epidemic, these trials will be watched closely by many people in the legal profession, health care and Federal, state and local governments.
- Taxotere (Docetaxel) and permanent alopecia. This chemotherapy drug, on the market since 1996, can cause permanent alopecia. However, the permanency of this side effect was not listed in the warnings until 2015 in the U.S.—10 years after such warnings appeared on the packaging in the E.U. and Canada. Approximately 8,700 Taxotere patients who have suffered permanent hair loss have filed lawsuits, centralized in the Eastern District of Louisiana. The first bellwether trials are expected to begin in 2019.
- The Catholic Church – Following the release of the report from a grand jury investigating abuse by Catholic priests in Pennsylvania several other states and the Department of Justice announced investigations and issued subpoenas to Catholic dioceses across the country; additional litigation against the Church is likely.
- Cybersecurity hacks – Hotels, retailers, credit card companies and major websites were among the companies that discovered significant security breaches in 2018. One current class action is related to the breach of the Marriott Starwood reservation system, which may have impacted over 380 million people and exposed over 5 million unencrypted passport numbers.
- Surgical mesh. This product, whether used as hernia or transvaginal mesh, has shown significant complications. Look for continuing litigation in this area.
- Essure. Bellwether cases against Essure, a permanent birth control method that has now been withdrawn from the market by Bayer, are expected to begin in late 2019. There are currently in excess of 15,000 women who have claims related to Essure.
- Xarelto. With more than 20,000 Xarelto claims in a variety of jurisdictions, we expect to see multiple trials in 2019 in accordance with recent court actions.
- IVC filters. Cases regarding IVC filters against several defendants are proceeding.
- Proton pump inhibitors (PPIs). Cases linking this class of acid-blocking drugs to kidney disease/kidney failure are expected to continue, with bellwether trials expected in 2020.
We’re keeping an eye on some potential changes that may impact mass tort and class action litigation in 2019:
- The impact that rulings like those in Cyan v Beaver County Employees Retirement Fund, Spokeo v Robins and In re Hyundai and Kia Fuel Economy Litigation will have on class actions
- Further litigation regarding the Supreme Court ruling in Bristol-Myers Squibb v. Superior Court
- Potential changes to FDA regulations and further litigation on the issue of preemption
- Potential changes to the rules governing class actions and MDL litigation
- Additionally, attempts to limit discovery, such as imposing strict time limits on CEO depositions and limiting document production
What do you foresee as significant developments that may impact mass tort and class action litigation in 2019? We invite you to share your thoughts in the comments below.