Have a Safe 4th of July Weekend

Please be careful out there on the roads this long holiday weekend. The National Safety Council, an organization formed in 1913 and is a nonpolitical group that does not contribute to or support any political party or candidate, calculates that 582 people may be killed on the roads during the upcoming 4th of July holiday period. They also cited that an additional 66,900 may be seriously injured in crashes. This is the highest estimate the Council has issued since 2006 for a four-day July 4th holiday period.

Attentive driving, coupled with putting down your smart phone while driving, can help make the roads out there safer. Safe travels for all of those out there who are hitting the highways and roads this weekend. 

Anthem Reaches Settlement Over Data Breach Lawsuits

Anthem, which some estimate to be the largest health insurer in the country, has agreed to settle litigation over hacking in 2015 that compromised about 79 million people's personal information. The settlement amount is reported to be for $115 million, making the deal the largest settlement ever for a data breach. The settlement must still be approved by U.S. District Judge Lucy Koh in San Jose, California, who is presiding over the case. Over one-hundred lawsuits filed against Anthem were consolidated in Judge Koh’s court.

The money will go to pay for two years of credit monitoring for people affected by the data breach. Victims are believed to include current and former customers of Anthem and of other insurers affiliated with Anthem through the national Blue Cross Blue Shield Association.

The credit monitoring in the settlement is in addition to the two years of credit monitoring Anthem offered victims when it announced the breach in February 2015. In February 2015 an unknown hacker had accessed a database containing personal information, including names, dates of birth, social security numbers, home addresses, email addresses, and employment and income information. The attack supposedly did not compromise credit card information or medical information.

The breach is just one of a series of high-profile data breaches over the last several years. Other large corporations that were hacked include Target, which agreed to pay $18.5 million to settle claims, and Home Depot which agreed to pay at least $19.5 million to consumers last year.

U.S. Supreme Court Ruling in Bristol-Myers Squib Case Already Having Devastating Effects on Mass Tort Litigation

A Supreme Court decision issued last week is already making it harder for large groups of plaintiffs to sue corporations in state courts for damages caused by manufacturers' products. This is just another win for the ‘tort reformers’ in their pursuit to limit access to justice.

Bristol-Myers Squibb (“BMS”) prevailed in its effort to get the Supreme Court to limit where patients can sue for harm caused by drugs. Justices ruled 8-1 for the drug company. The case centered around whether plaintiffs residing outside of the state who claim they were harmed by BMS' blood thinner Plavix could join in a lawsuit brought by California residents against the New York-based company in California. The out-of-state residents didn't buy the drug or take it in California, and the product wasn't manufactured in the state.

 Justice Alito wrote the majority opinion, stating that, "The mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in California — and allegedly sustained the same injuries as did the non-residents — does not allow the State to assert specific jurisdiction over the nonresidents' claims."
The main legal issue was whether the plaintiffs had standing to sue in California state court.

This ruling will affect many other state courts. For example, a large majority, nearly 95 percent, of the mass torts filed in Philadelphia are submitted by out-of-state plaintiffs. Under the Supreme Court BMS decision, plaintiffs could not file these suits in Pennsylvania unless the company was based in that state.

The lone dissenter, Justice Sotomayor, realized the real importance of the majority's opinion. She wrote,
"The effect of today’s opinion will be to curtail — and in some cases eliminate — plaintiff's ability to hold corporations fully accountable for their nationwide conduct." She went on to opine that the ruling "hands one more tool to corporate defendants determined to prevent the aggregation of individual claims and forces injured plaintiffs to bear the burden of bringing suit in what will often be far flung jurisdictions."

The opinion is already having drastic outcomes for other cases. A Missouri court set to oversee the seventh day of a multi-plaintiff talcum powder trial granted Johnson & Johnson's motion for a mistrial, which was brought in light of the BMS decision. Johnson & Johnson is also expected to use the BMS decision in their appeal of several large verdicts against them over their baby powder product.




Second Xarelto Bellwether Trial Ends With Defense Verdict

The second bellwether trial in the Xarelto MDL ended with a defense verdict. The jury received the case this last Monday, and deliberated for a few hours before reaching their verdict. The plaintiff in the case suffered a stroke and alleged it was caused by Xarelto. Most of the 18,000 cases filed in the MDL allege bleeding events that led to hospitalization. It is unclear if the Plaintiff will appeal. This is the second trial in a row the plaintiffs have lost.

The plaintiff in the first bellwether trial, who also received a defense verdict from the jury, is asking for a new trial. That plaintiff alleged a gastrointestinal bleed for which he required hospitalization and blood transfusions. Although he is appealing on several grounds, one of his main contentions is that he was prevented from presenting the jury with evidence that a blood clotting test called Neoplastin PT should have been provided to patients in order to monitor any adverse reactions from Xarelto.

Zimmer NexGen MDL Will Go On...For Now

U.S. District Judge Rebecca Pallmeyer issued a brief minute order this week that she will not disband the multidistrict litigation accusing Zimmer of manufacturing shoddy knee implants before she can try another pair of bellwethers in her court. Judge Pallmeyer expects two more bellwether trials in the MDL before she will entertain a request to unwind the MDL and send around 300 remaining cases back to the courts where they were initially filed or where jurisdiction is proper.

It appears that the two bellwether trials will occur this year and that the remand request will be revisited in 2018. The MDL at one point had over 1,800 cases filed in it. The cases all involve variations of the Zimmer NexGen series of knee implants. Zimmer opposed the unwinding of the MDL. Two bellwether cases have previously been tried; both resulting in defense verdicts. One option going forward is to try multiple plaintiffs’ cases at one time, similar to the approach that was taken in the Pinnacle MDL.

Judge Pallmeyer simultaneously weighed in on another dispute involving the production of documents from a third-party medical consulting firm, ruling that Physicians Medical Review must “produce all medical records that were furnished to potentially declaring or testifying experts.” However, she ruled that deposition notices issued to PMR’s principals would not be enforced.