Film Forming Foams

Mass Tort Report update by Attorney Jeff Keiser

We’re going to start off this month’s newsletter with a case that we have not discussed here before, MDL 2873 or the Aqueous Film-Forming Foams (AFFF) Products Liability Litigation.

This case has been in progress since 2019 and involves PFAS (also known as ‘Forever’ chemicals) that have contaminated groundwater near military bases and other industrial sites.

AFFF’s are used for a number of purposes, causing personal injury, a need for medical monitoring, property damage and other economic losses.

The defendants (3M, Chemguard, Kidde-Fenwal, National Foam, and Dynax) have deep pockets, and Bloomberg is reporting their exposure may be more than $30b.

Last week, the MDL judge rejected defendants’ motion for immunity based on being contractors for the U.S. government. The ruling came from a summary judgment motion, and its denial means that the issue will be presented to a jury, but this is still a substantial victory for plaintiffs. We’ll see if this moves the defendants to the settlement table.

I suspect we’ll see some bellwether trials next year, but there is nothing on the calendar as of now. The MDL is moving slowly, but there’s some hope that it will pick up pace now that the summary judgment phase has concluded.

3M Denied

3M’s luck isn’t any better in the Combat Arms Earplug litigation. On August 29, 2022, Bankruptcy Judge Jeffrey Graham denied 3M’s attempt to shift liability to a separate entity, as Johnson & Johnson successfully (so far) did in the talcum powder case.

Despite the subsidiary’s bankruptcy, the court will allow suits to continue against the more financially stable parent company. After 3M lost 10 of 16 bellwether trials, this should really get defendants to the bargaining table.

The MDL judge agreed and has ordered a mediation between the parties by the end of the year. We’ll see what happens in that mediation, but this one could really see some action by the end of the year.

It remains the single largest MDL in U.S. history, and the number of plaintiffs is simply staggering.

J&J ‘Two Step’ Review

As to that ‘successful’ bankruptcy procedure that Johnson & Johnson pursued in the talcum powder case, it is under review by the 3rd Circuit.

If the Court agrees with the bankruptcy court, it remains uncertain how much exposure J&J will truly avoid as they continue to maintain the ‘Texas two-step’ will be the most efficient way to resolve the claims.

Plaintiffs, along with the U.S. Trustee, the DOJ’s watchdog for bankruptcy, have argued that it is a clear attempt for the parent company to avoid liability.

Expect this one to go to the Supreme Court, no matter how the 3rd Circuit decides, by the end of 2022. If that happens, we won’t likely have an answer as to the bankruptcy issue until the end of 2023.

This one could take some time.

Plaintiff Withdraws

In the Zantac litigation, Judge Robin Rosenberg dismissed claims related to some types of cancer, allowing only 5 types to keep going in the MDL.

As of now, only breast, prostate, colorectal, kidney, and lung cancers can proceed.

The bellwether system was supposed to start in September, but the plaintiff withdrew the case for unknown reasons. Defendants claims that they paid nothing in exchange for the plaintiff’s withdrawal.

Judge Rosenberg has not scheduled another trial yet, but certainly, this will be something to look out for as the year ends.

Any claimants with other types of cancer may still have a case, but not in the MDL. 

1 in 4 People

The bellwether trial system in the Bard hernia mesh cases have ended in mixed results.

Last month, in a Rhode Island state case, a bellwether trial resulted in a great result for plaintiff Paul Trevino. The jury there awarded plaintiff $4.8m in damages.

Plaintiff firm Motley Rice summed up the reality of this case nicely. “4000 people hurt severely by this device in the last 3 years alone. 25%, 1 in four people that were implanted with this device had another surgery to take it out.”

These cases are great value if you can find them, whether you’re in the MDL or not.

Monsanto Victory

In less satisfying bellwether news, Monsanto came out the victor in the most recent Roundup case tried before a jury.

There have been seven trials as of now, and Bayer, through their subsidiary Monsanto, has now won five straight. This is a direct hit for plaintiffs in this case, and causation remains the real challenge here.

The EPA labeled the active ingredient in Roundup as “unlikely to be a human carcinogen” in 2020.

Whether these cases hold value or not remains an open question, but with the right plaintiff and strong causation evidence, I still think they have value.

Camp Lejeune

Anyone that has turned a TV on over the past few months knows that the Camp Lejeune litigation is the big one this fall.

We discussed these cases in detail through a number of separate news blasts, but if you have a client that was exposed to the drinking water between August 1, 1953 through December 31, 1987, that was later diagnosed with several specific cancers or other diseases, these claims have real merit. And because the first step is a straightforward claims process, damages may begin getting paid as early as the first half of next year.

Competition for these claims is extreme – so get in early!

Focused on Bellwethers

That’s all for this month. Some may ask why we’re so focused on the bellwether trial process, and the answer is simple.

These trials give great guidance on how these cases will end up. If the defense wins the majority, the chances of a settlement agreement go down, but if plaintiffs score some decisive victories, they’re likely to try and get out cheap and quick.

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