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Litigation Spotlight: #12

Top 5 Mass Torts of 2020

Top 5 Mass Torts (1)The year 2020 was newsworthy in almost every regard and caused most Americans to drastically change the way they live and work. The legal industry saw a dramatic shift from in-person interactions, brick-and-mortar offices and face-to-face hearings and trials, to a near total virtual space, forcing many attorneys to quickly become well-versed in programs like Zoom and Google Meets.

Initially, the pandemic-related shutdown caused a backlog in the judicial system. Both courts and attorneys have made great efforts to keep matters moving forward considering the restrictions still in place. The mass tort arena saw the advent of several new litigations and the following is a recap of some of the 5 biggest mass torts of 2020.

Contaminated_WaterPFAS Chemicals

One of the most expansive mass torts currently in litigation is the PFAS chemical pollution litigation. Lawsuits in the PFAS litigations span a wide array of both potential plaintiffs and potential defendants. Significant momentum was gained in 2020, with lawsuits filed by a wide range of plaintiffs alleging that the so-called “forever chemical” has polluted the air, land and water. In addition, compensation is sought for clean-up efforts.

Several state attorney generals have already filed suit on behalf of their residents based on the legal concept of “parens patriae.” Under this legal theory, whatever harms the residents of the state therefore harms the state itself. In addition to state plaintiffs, claims have been filed by individuals on behalf of similarly situated classes, generally alleging that exposure to PFAS has put them at a higher risk for cancer. Allegations of environmental contamination have also been raised, which plaintiffs claim have caused substantial degradations to their property values. Defendants in PFAS suits include chemical giants DuPont de Nemours Inc., DuPont’s subsidiary, The Chemours Co. and 3M.

Per-fluoroalkyl and polyfluoroalkyl substances, or PFAS chemicals, consist of a group of around 1,200 man-made chemicals widely used in the manufacture of industrial and consumer products worldwide since the 1940s. PFAS gained widespread popularity due to the ability to resist grease, water and oils. PFAS are used in a large number of household products, including stain-resistant and water-repellent fabrics, non-stick products like Teflon, polishes, waxes, paints and cleaning products. Industries that utilize chrome plating or fire-fighting foams, manufacture electronics or take part in oil recovery operations also frequently use PFAS. The fire-fighting foams in particular have been identified as a major source of groundwater contamination near airports and military bases where firefighting training occurs.

Human exposure to PFAS can potentially lead to a number of health issues including an increased cancer risk, reduced immune function, disruption of the body’s natural hormone levels, increased cholesterol and has been shown to affect infants’ and children’s growth, learning ability and behavior. Increased PFAS exposure has also been linked to thyroid disease, weight gain, decreased vaccine response and neurobehavioral effects. PFAS exposure may also be associated with decreased fertility, lower birth weights and pregnancy-induced hypertension.

Recently, new concerns have surfaced regarding possible endocrine disruption due to PFAS exposure. PFAS exposure has been named as a public health concern by the Centers for Disease Control (“CDC”), National Center for Environmental Health (“NCEH”) and the Agency for Toxic Substances and Disease Registry (“ATSDR”).

As mentioned above, several state attorney generals have filed suits against PFAS manufacturers including the attorneys general of New York, New Jersey, New Hampshire, Michigan and Vermont. These states generally allege that the chemical manufacturers deliberately and intentionally concealed the dangers of PFAS from governmental entities and the public at large in order to protect profits and avoid responsibility for injuries and damages caused by their toxic products.

In January 2020, the California American Water Company filed suit against the United States government in federal court in California alleging that PFAS from the Mather Air Force Base had contaminated one of the water supply systems owned and operated by the plaintiff. The water company alleges damages that include the costs of construction and installation of a treatment system to remove PFOA and PFOS from extracted groundwater, the costs of maintaining and monitoring the performance of the new treatment system and the costs of testing groundwater at the well for PFAS. More recently, in December 2020 DuPont, 3M, Chemours and Corteva were served with claims surrounding PFAS groundwater contamination in California State Superior Court in Orange County by the Orange County Water District and 10 other water districts in the county. The action argues that the defendants should cover all decontamination costs.

Notably, a $69.5 million settlement was reached in February 2020 in a suit filed by the state of Michigan along with two Michigan townships against a Michigan shoe company, Wolverine Worldwide (Wolverine”), wherein the state argued that PFAS leaked from Wolverine’s factories and caused widespread water contamination. Wolverine subsequently filed suit against 3M, the maker of Scotchgard™, the product used to waterproof its shoes for over 40 years. The company alleges that 3M failed to inform Wolverine that the product contained PFAS and that it posed a serious risk to the environment. 3M ultimately agreed to pay $55 million to assist Wolverine in its clean-up efforts.

JuulJuul

The Juul litigation has been in the news since late 2019, when the Multidistrict Litigation (“MDL”) was consolidated by the Judicial Panel on Multidistrict of Litigation (“JPML”) on October 2, 2019 and transferred to the U.S. District Court for the Northern District of California under Judge William Orrick. Plaintiffs in the MDL all similarly allege that defendant Juul Labs Inc. marketed its e-cigarettes in a way knowingly designed to attract minors. Additionally, suits in the MDL allege that Juul markets its products as containing 20% less nicotine than they actually contain, thus influencing consumers who are looking to quit smoking, into the buying the product. Notably, in June 2020 a group of Native American tribes filed suit against Juul Labs Inc., Philip Morris USA and Altria Group Inc., joining the growing MDL. The tribes argue that the companies have made concerted efforts to market to Native Americans in an attempt to get tribe members, and specifically the tribes’ youth, addicted to nicotine.

In addition to litigations consolidated in the MDL, several actions have been filed against Juul Labs by a growing number of state attorneys general (“AG”) in state court on behalf of state residents, including in New York, Washington state, California, Illinois, Washington D.C., Massachusetts and Pennsylvania. In the suits, the AGs argue that Juul’s aggressive advertising of its multi-flavored products contributed to a public health crisis that has left countless state residents, many of whom are teenagers, addicted to its products and fighting for their health.

These complaints point to the fact that in 2010, the U.S. Surgeon General concluded that nicotine has the same effect on the brain as cocaine and heroin. The suits further allege that even infrequent use of nicotine products is enough to put teens at risk for addiction, due to the fact that their brains are still developing and are therefore prone to nicotine addiction at a much lower concentration than in adults over the age of 26. The AG also alleges that in 2016, roughly one-third of surveyed teens reported that they thought Juul products were harmless. It is further argued that Juul has seized upon Big Tobacco’s advertising and flavoring tactics, allowing it to profit at the expense of the health of state residents, and particularly young residents. The suits claim that Juul has sought to specifically target teens through its marketing, by attempting to recruit celebrities like Miley Cyrus and young social media influencers.

The FDA has issued several letters regarding Juul products, including a September 2019 letter to Juul CEO, Kevin Burns, warning the company that it has a continuing responsibility to take action to address the electronic nicotine delivery system (“ENDS”) youth addiction epidemic. More recently, on March 10, 2020, the FDA issued warning letters to 22 e-cigarette manufacturers and retailers, warning the companies that it appeared they were selling flavored products without authorization in violation of the federal Food Drug and Cosmetic Act. Manufacturers include Apollo Future Technology Inc., Global Tobacco LLC, Premium Manufacturing Facility, ProSmoke, United Tobacco Vapor Group and WhiteLightning USA. Warned retailers included 7-Eleven stores, Chevron, Citgo, Conoco, Exxon Mobil, Marathon, Shell and Sunoco gas stations.

The Juul litigations have maintained momentum throughout 2020 and are likely to expand even further throughout 2021.

HeartburnZantac

Zantac litigation is another mass tort that gained significant traction in the final months of 2019 and continued to make headlines throughout 2020. Zantac, known chemically as ranitidine, was a well-known over-the-counter heartburn medication and is part of a class of drugs called histamine-2 blockers. Ranitidine reduces the amount of acid produced by the stomach. Zantac is used to treat many stomach conditions, namely Zollinger-Ellison Syndrome in which the stomach produces too much acid. Zantac is also used to treat gastroesophageal reflux disease and other conditions which cause acid to back up from the stomach into the esophagus resulting in heartburn. Zantac has also been used as a precautionary measure to prevent ulcers in the stomach and intestines.

The events leading up to Zantac’s recall began in July 2018, when the FDA announced a voluntary recall of several medications containing the active ingredient valsartan, used to treat high blood pressure and heart failure. The recall was due to an impurity, N-nitrosodimethylamine (“NDMA”), found in the valsartan-based drugs. NDMA is classified as a probable human carcinogen and once digested in large amounts, has the potential to cause cancer in humans. The FDA has reported that NDMA is reasonably safe to consumers in small amounts, considering that NDMA is often found in cured or cooked meats. It is important to note that according to the FDA, the allowable daily limit of NDMA is 92 nanograms.

In September 2019, the FDA announced it had begun investigations into NDMA levels in Zantac and its generic forms. Research showed that a single dose of Zantac contained over 3 million nanograms of NDMA, far exceeding the recommended daily limit of 92 nanograms. Just days after the FDA announcement, Novartis AG’s Sandoz unit announced that it would be ceasing worldwide distribution of generic versions of Zantac. In October 2019, Sanofi, the makers of branded Zantac, announced it was issuing a voluntary recall of all over-the-counter Zantac products as a precautionary measure in both the U.S. and Canada. On April 1, 2020, the FDA announced its request that manufacturers withdraw all prescription and over-the-counter ranitidine drugs from the market immediately.

On February 6, 2020, the JPML issued a transfer order consolidating 15 actions from nine districts into an MDL in the Southern District of Florida under Judge Robin L. Rosenberg. The JPML noted in the transfer order that the litigation was likely to be quite large. On April 2, 2020, Judge Rosenberg issued an order governing the form and schedule for service of an Initial Census Form for all cases filed within the MDL, as well as certain unfiled cases, and a Census Plus Form for personal injury and medical monitoring cases in the MDL. In addition to the MDL, on June 8, 2020, attorneys representing 40 people with cancer who allege that defendant pharmaceutical companies concealed the risk that Zantac could produce carcinogens filed a petition in California court. The petition seeks to have the suits linked in a judicial council coordinated proceeding to consolidate pretrial and trial phases of the cases, which they said would work alongside the existing Zantac MDL.

TikTokTikTok

Social media app TikTok garnered much attention in 2020 as Americans have increasingly relied on social media during the COVID-19 pandemic as a way to connect with others. TikTok has reached a staggering 1.3 billion downloads worldwide with in excess of 120 million users in the U.S. alone. The app is used to create and share short, 15-second videos of dancing, lip-synching or other forms of self-expression. It also has the capacity to allow users to post short looping videos between three and 60 seconds in length. The app sets itself apart by offering a wide array of music, animation, special effects and filters that users can apply to their videos. Similar to other social media apps like Facebook and Instagram, TikTok users can “follow” each other and “like” others’ posts.

Recent lawsuits have brought to light privacy issues that exist within the social media app. On August 4, 2020, the Judicial Panel for Multidistrict Litigation consolidated 10 cases into a multidistrict litigation in the Northern District of Illinois under Judge John Z. Lee, all of which challenge the app’s conduct with respect to the scanning, capture, retention and dissemination of the facial geometry and other biometric information of its users.

However, according to plaintiffs currently engaged in suits against the TikTok and its China-based parent company, ByteDance Inc., the perceived playful and light-hearted reputation belies the fact that the app operates on users’ private, biometric information. The suit states that TikTok scans a user’s facial geometry before running an algorithm to determine the user’s age. The app also employs facial scans to allow users to superimpose animated facial filters onto the moving faces of subjects in a video.

Plaintiffs argue that the app fails to inform users that their biometric data is being collected, captured, received, obtained, stored and/or used by the app. Further, the plaintiffs argue that the app fails to disclose how TikTok Inc. and its parent company use the data, how long the data is stored and who has the ability to access the data.

Some of the claims assert that TikTok is taking advantage of the unsophistication of its youthful followers by targeting minor children and misleading them into disclosing personal identifying information without parental consent. It is widely acknowledged that TikTok’s primary audience is young people, with 60% of active users being between the ages of 16 and 24. According to court documents, around 70% of ten-year-old girls who have access to or own smartphones were reported to have used TikTok at some point in 2019. According to reports from both the Google App Store and Apple’s iTunes Store, TikTok is the most downloaded non-gaming app in the world—surpassing Facebook, Snapchat and Instagram.

The TikTok MDL is likely to make major headlines in 2021 and as the app continues to grow in popularity, the number of potential plaintiffs in turn increases, opening the door to further privacy litigation.

AdobeStock_115220076Roundup

No mass torts discussion would be complete without mentioning the Roundup litigations. Roundup cases have been making news for the past several years as suits have been filed in both state court and federal court against agrochemical company Monsanto alleging that exposure to its popular weed killer Roundup causes cancer. Plaintiffs in these litigations have argued that Monsanto, acquired by Bayer AG in 2018 for $62.5 billion, has spent years suppressing scientific evidence that its product causes cancer while providing the Environmental Protection Agency false scientific articles ghostwritten by Monsanto-sponsored scientists. Most recently, in October 2020 the California Supreme Court refused to hear an appeal of a $20 million jury verdict for plaintiff Dwayne Johnson who alleged that his non-Hodgkin’s lymphoma was caused by Roundup exposure.

However, the biggest news to come from the Roundup litigations was a September 2020 announcement from plaintiffs’ attorneys in the Roundup MDL that a binding master settlement agreement had been reached with Bayer AG for an undisclosed amount. A November 2020 Bayer AG earnings report revealed that the company announced that although the settlement process is not complete, it has advanced to a point that prompted Bayer to forecast it will cost the company around $2 billion. Bayer also reported that it will file a motion for preliminary approval of the settlement once a formal agreement is reached between itself and the plaintiffs.

Categories: Litigation Spotlight

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