On Top of 2023

Now that 2022 is officially over and the holidays are in our rear-view mirrors, there is some actual movement that makes us think 2023 may be the year we see some of them finally settle, and others really take off.

Bad News First – Zantac

First, the bad news – the Zantac litigation suffered some major setbacks in the latter part of the year, and we don’t see any realistic way for these cases to come back from the dead, at least in the federal system.

Causation problems were always there, and the MDL judge finally released a 341-page order detailing the specific issues, eventually dismissing all Zantac cases in the MDL.  

While some hope remains that these cases may have more success in state courts, the MDL is effectively dead, and plaintiffs have not proposed any new causation experts.

The Order is far too long to detail in this short blog post, but defendant GSK was happy to announce that it ‘reflects the state of that science and ensured that unreliable and litigation-driven science did not enter the federal courtroom.’

Plaintiffs are certain to appeal, and state courts remain an option, but evidentiary standards may cause the same problems. That being said, the California case that was scheduled for February 2023 recently settled for undisclosed terms, so this may be a path worth considering.

The remaining cases on that docket are scheduled on May 1, 2023, August 7, 2023, and October 23, 2023, but it seems unlikely that any of them will actually proceed.

3M – Court Rejects Two Step

The 3M Combat Arms litigation remains the single largest in US history, at least in terms of number of plaintiffs. The sheer number of legal leads in this case is staggering. But these cases won’t be easy.

Following Johnson & Johnson’s successful use of the ‘Texas Two Step’ maneuver in the Zantac litigation, 3M tried to do the same thing by shifting liability to a new entity called Aereo Technologies.

Fortunately, however, the Court rejected this move, going so far as to sanction 3M in a December 22 order. In other words, unless appeals are successful, 3M will be the defendant when these cases go to trial.  

A Bloomberg report this week noted that 3M has already spent more than $450 million in legal fees on this case, a shocking amount that can only drive them to the negotiation table.  

In addition to more than $300 million in bellwether plaintiff verdicts, the amounts of money being spent may push 3M just that much harder.

In addition to more than $300 million in bellwether plaintiff verdicts, the amounts of money being spent may push 3M just that much harder.

I’d expect a global settlement sometime in the first half of the year on this one, but nothing has been agreed to yet.  

Keep pushing these cases – there are plaintiffs out there and the money will start coming soon. Our mass tort leads are a great way to start finding clients.

Waiting for SCOTUS

Speaking of the talcum powder cases, there are some lawyers predicting plaintiff’s appeals against the dreaded ‘Texas Two Step’ maneuver will succeed and that the US Supreme Court will not revive the issue.

The applicability of this scheme remains one of the most important legal topics in the mass tort world, and the Supreme Court has not yet spoken on it. It’s a near certainty that they’ll have the opportunity to visit the subject this year, but no one knows whether they will or not.

The 3rd Circuit recently heard oral arguments on the matter, and after watching the video replay, I don’t believe the Court will allow this “bankruptcy to avoid bankruptcy” to stand.1

We may need to wait for a Supreme Court decision on the matter, but everything is pointing to a harsh reality for defendants.

Camp Lejeune – Simply Massive

Camp Lejeune has been everywhere over the past few months, and for good reason.

Mass tort marketing has been ubiquitous, and our leads are second to none. These are great cases and I expect things to resolve relatively quickly.

As of January 9, 14,000 claims have been filed with the Navy JAG Tort Claims Unit, but expectations are that the number will double in the next few months.

Interestingly, there has been no action on these claims to date, making it more likely that the government will simply let the CLJA 6-month response requirement pass.

There has been some discussion about a claims portal being developed, but as of writing, this is merely speculation.

The US has started budgeting for the payment of these claims, and even though $6.1 billion was the number being thrown around, all expectations are that the actual budget will be more than $21 billion.  

These figures come from CBO analysis and are not final, but the scope of this litigation is simply massive.

Quick Hits

And finally, a few quick hits in other litigations that we’re all working.  

  • In Paraquat, the MDL grew by 400% in 2022, and we expect that growth to continue. The first bellwether is scheduled for October. 
  • Likewise, the first PFAS firefighting foam bellwether trial is scheduled for June 2023. 
  • The Philips CPAP machine cases are interesting. Late last year, the DOJ was close to finalizing a consent decree that would force defendants to accept responsibility for damages associated. If this happens, it will become difficult for defendants to take any positions amounting to ‘we did nothing wrong.’ 
  • We’re all anxiously awaiting the JPML at the end of January, where we’re sure to get a new MDL for the hair relaxer cancer cases. 
  • Likely, we’ll get some other news on some of the cases discussed above. No matter what, we’ll have leads available for every MDL on the docket.

Next Month

We’ll be back next month with more updates on these (and other) cases.  Let us know if there are any cases you’d like us to focus on.

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