BOSTON — The Massachusetts Supreme Judicial Court on March 16 vacated the dismissal of a Proscar (finasteride) claim against Merck & Co. Inc., ruling that the plaintiff can amend his complaint to bring a common-law recklessness claim against Merck for allegedly failing to update the drug label to warn of a risk of permanent impotency cause by the generic version of the drug (Brian Rafferty v. Merck & Co., Inc., et al., No. AJC-12347, Mass. Sup.).
SAN FRANCISCO — The Yurok Tribe of Native Americans on March 12 filed an opioid RICO complaint against eight drug manufacturers, alleging that the companies misrepresented the addictive nature of their drugs and are causing a financial and social burden on the tribe (The Yurok Tribe v. Purdue Pharma L.P., et al., No. 18-1566, N.D. Calif., San Francisco Div.).
SAN JOSE, Calif. — Theranos Inc. CEO Elizabeth Holmes has agreed to pay a $500,000 penalty, to return her remaining 18.9 million shares to the company, to relinquish voting control of the company she started and to be barred from serving as an officer or director of any public company for 10 years, the U.S. Securities and Exchange Commission announced March 14 after filing a civil fraud claim against Holmes and Theranos (Securities and Exchange Commission v. Elizabeth Holmes, et al., No. 18-1602, N.D. Calif., San Jose Div.).
PHOENIX — The first bellwether trial in the C.R. Bard Inc. inferior vena cava (IVC) filter multidistrict litigation is scheduled to get under way on March 14 in the U.S. District Court for the District of Arizona (In Re: Bard IVC Filters Products Liability Litigation, MDL Docket No. 2641, No. 15-2641, Sherr-Una Booker v. C.R. Bard, Inc., et al., No. 16-474, D. Ariz.).
New developments in the following mass tort drug and device cases are marked in boldface type.
CHICAGO — The Seventh Circuit U.S. Court of Appeals on March 13 affirmed an $87,500 quantum meruit award to an attorney who represented a plaintiff in a DePuy ASR hip case before the client fired him and accepted a $250,000 settlement offer from the defendant (Dustan Dobbs v. DePuy Orthopaedics, Inc., et al., No. 17-2195, 7th Cir., 2018 U.S. App. LEXIS 6213).
CLEVELAND — The United States on March 1 asked the opioid multidistrict litigation court to give the government 30 days to evaluate whether it should participate in the MDL (In Re: National Prescription Opiate Litigation, MDL Docket No. 2804, No. 17-md-2804, N.D. Ohio, Eastern Div.).
PHOENIX — The judge overseeing the C.R. Bard Inc. inferior vena cava (IVC) multidistrict litigation on March 12 trimmed claims that will go to a May 15 trial, leaving only claims for failure to warn and punitive damages (In Re: Bard IVC Filters Products Liability Litigation, MDL Docket No. 2641, No. 15-2641, Doris Jones, et al. v. C.R. Bard, Inc., et al., No. 16-782, D. Ariz., 2018 U.S. Dist. LEXIS 40020).
CLEVELAND — The U.S. Drug Enforcement Agency (DEA) on March 5 told the opioid multidistrict litigation court that it will produce information identifying drug companies and distributors that sold 95 percent of opiates in each state from 2006 through 2014 (In Re: National Prescription Opiate Litigation, MDL Docket No. 17-md-2804, N.D. Ohio, Eastern Div.).
INDIANAPOLIS — An Indiana federal judge on March 9 granted summary judgment on the remaining claim in a Cook Medical Inc. inferior vena cava (IVC) filter bellwether case, agreeing with the defendant that the breach of the implied warranty of merchantability claim is time-barred (In Re: Cook Medical, Inc., IVC Filters Marketing, Sales Practices and Product Liability Litigation, MDL Docket No. 2570, No. 14-ml-2570, S.D. Ind., Indianapolis Div.).
PHOENIX — A plaintiff on March 9 moved to intervene in the Arizona attorney general’s consumer violation settlement with Theranos Inc., saying a state court should declare that the state settlement does not extinguish claims by a purported class of state citizens who say they were harmed by Theranos’ blood-testing services (In Re: Arizona Theranos, Inc., Litigation, No. 16-2138, D. Ariz., Arizona, et al. v. Theranos, Inc., No. CV2017-006644, Ariz. Super., Maricopa Co.).
CHARLESTON, W.Va. — The West Virginia federal judge overseeing the Neomedic pelvic mesh multidistrict litigation on March 12 officially ordered the MDL to be closed (In Re: Neomedic Pelvic Repair System Products Liability Litigation, MDL Docket No. 2511, No. 14-md-2511, S.D. W.Va.).
PHILADELPHIA — In a case of first impression involving a medical device of “mixed” components, the Third Circuit U.S. Court of Appeals on March 1 said a plaintiff’s claims of negligence, strict liability and breach of express warranty in a metal-on-metal hip case are expressly preempted by federal law (Walter Shuker, et al. v. Smith & Nephew, PLC, et al., No. 16-3785, 3rd Cir., 2018 U.S. App. LEXIS 5160).
WARSAW, Ind. — Zimmer Biomet said in a Feb. 27 financial filing that it has taken a charge of about $15.8 million for a remitted and molded verdict and post-judgment interest in a knee prosthesis case while considering whether it will appeal a Dec. 15 Pennsylvania Superior Court ruling affirming a $21.5 million award (Margo Polett, et al. v. Public Communications, Inc., et al., No. 80 EDA 2017, Pa. Super.).
NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals on March 9 reversed summary judgment in a hernia mesh patch case, finding that a trial court erred in discounting plaintiffs’ evidence about the manufacturer of device (Randy A. Roberts, Sr., et al. v. Johnson & Johnson, et al., No. 17-30601, 2018 U.S. App. LEXIS 5995).
HAMMOND, Ind. — An Indiana federal jury on March 8 returned a $35 million verdict in an Ethicon Inc. pelvic mesh trial, including $25 million in punitive damages (Barbara Kaiser, et al. v Johnson & Johnson, et al., No. 17-114, N.D. Ind., Hammond Div.).
BROOKLYN, N.Y. — Convicted former pharmaceutical company CEO and hedge fund manager Martin Shkreli will spend the next 6-1/2 years in prison after a federal judge in New York on March 9 sentenced him to seven years’ imprisonment for his role in bilking investors of millions of dollars of investments (United States of America v. Martin Shkreli, No. 15-637, E.D. N.Y.).
CHICAGO — The retrial of an AndroGel multidistrict litigation bellwether case got underway March 7 in the U.S. District Court for the Northern District of Illinois (In Re: Testosterone Replacement Therapy Products Liability Litigation, MDL No. 2545, No. 14-1748, Jesse Mitchell v. AbbVie, No. 14-9178, N.D. Ill., Eastern Div.).
CHICAGO — The Seventh Circuit U.S. Court of Appeals on March 8 affirmed summary judgment in the second NexGen knee multidistrict litigation bellwether trial, finding that the Wisconsin Supreme Court would agree that the learned intermediary doctrine barred the plaintiff’s failure-to-warn claim (In Re: Zimmer, NexGen Knee Implant Products Liability Litigation, Appeal of: Theodore F. Joas, et al., No. 16-3957, 7th Cir., 2018 U.S. App. LEXIS 5863).
BOSTON — Heart pump maker Abiomed Inc. has agreed to pay $3.1 million to resolve a False Claims Act, 31 U.S. Code § 3729, lawsuit that the company bought lavish meals for physicians to induce the doctors to use the company’s Impella line of heart pumps, the U.S. Attorney’s Office for the District of Massachusetts announced March 8.