Year End Review: 2022 Product Liability Developments

Our 2022 year-end review encapsulates significant jury verdicts and decisions affecting product liability cases across the nation. Below, is a non-exhaustive list of some product liability cases with national and regional implications that deserve attention.

U.S. SUPREME COURT AND OTHER COURTS

1. U.S. Supreme Court Denies 3M Co.’s Writ of Certiorari In Re Bair Hugger Surgical Blankets MDL

The Supreme Court declined to review the Eighth Circuit Court of Appeals’ decision to reinstate nearly 6,000 lawsuits regarding 3M’s allegedly defective Bair Hugger surgical warming blankets. The plaintiffs in Amador v. 3M Co. brought claims against 3M Company alleging its surgical blankets used to keep patients warm by a forced air device during orthopedic-implant surgeries cause periprosthetic joint infections (“PJIs”). Plaintiffs proffered expert testimony to support their argument that the blanket’s warm air device allowed microbes and bacteria to enter surgical sites or wounds thereby causing PJIs in patients.   

In 2019, the MDL court sitting in the United States District Court for the District of Minnesota granted 3M’s motion to exclude plaintiffs’ two general-causation medical experts and one engineering expert. The court subsequently granted 3M’s summary judgment as to all of Plaintiffs’ claims and entered an MDL-wide final judgment. Regarding plaintiffs’ medical causation experts, the MDL court ruled that the medical causation experts offered inadmissible testimony under the Daubert standard. Specifically, it found that medical experts’ theories of causation were “so fundamentally unsupported that they should be excluded rather than admitted” under Rule 702. 

On appeal, The Eighth Circuit reversed. In so doing, it held that the MDL court erred in finding that the medical experts’ opinions were “so fundamentally unsupported that they should be excluded.” Rather, although it found the theories relied on by plaintiffs’ medical causation experts were weak, it held the “redress for such weaknesses lie in cross-examination and contrary evidence rather than exclusion.” On this basis, it further reversed 3M’s grant of summary judgment effectively reinstating plaintiffs’ negligence and strict liability claims. 

In a costly blow to 3M, the Supreme Court denied its writ of certiorari following the Eighth Circuit’s decision. Despite 3M’s victory in the first bellwether trial in Gareis v. 3M Co., it will now have to expend even more resources, time, and money in preparing the remaining bellwether cases for trial. Equally important, the Supreme Court’s denial has reinvigorated the debate over Daubert’s application in federal courts. Numerous amicus briefs were submitted in support of 3M’s writ, emphasizing Rule 702’s function in requiring federal judges to act as “gatekeepers” to prevent a jury’s exposure to “junk science” or unreliable expert testimony. While Daubert’s application is by no means uniform throughout the twelve circuits, the responsibility of judges to act as “gatekeepers” continues to be at the forefront of debate in ensuring fair trials in product liability cases.

On June 21, 2022, the Supreme Court denied Monsanto’s writ of certiorari in Monsanto Company v. Edwin Hardeman. The denial left in place the Ninth Circuit Court of Appeals’ decision affirming a $25 million damages award to a consumer with non-Hodgkin’s lymphoma, who alleged that Roundup caused his cancer.

Hardeman sued Monsanto asserting that it failed to warn about the cancer risks of using Roundup. He alleged that he used Roundup between 1980 and 2012 and then in 2015 was diagnosed with non-Hodgkin’s lymphoma as a result. He sued under California law, claiming Monsanto’s failure to warn about Roundup’s carcinogenic risk caused his illness. At trial, the district court admitted expert testimony that exposure to glyphosate can cause non-Hodgkin’s lymphoma generally and caused his illness specifically, while acknowledging that both questions were close even under the Ninth Circuit’s lenient admissibility standard. Following a jury verdict awarding $5.27 million in compensatory damages and $75 million in punitive damages to Hardeman, the district court reduced the latter, explaining that Monsanto’s culpability was “diminish[ed]” because (1) glyphosate had been “repeated[ly] approv[ed]” by EPA and other regulators, and (2) there was “credible evidence” that glyphosate does not cause non-Hodgkin’s lymphoma.  The Ninth Circuit affirmed and held that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) neither expressly nor impliedly preempted the failure to warn claims and that the district court’s Daubert ruling followed the Ninth Circuit’s precedent under which some level of deference to experts with borderline opinions was proper. Monsanto subsequently filed a petition for a writ of certiorari, which the Supreme Court declined to hear.

The Supreme Court’s rejection of Monsanto’s appeal thwarts, for now, the company’s attempt to avoid potentially billions of dollars in damages in thousands of ongoing and potential Roundup lawsuits and opens doors for plaintiffs alleging similar injuries from the company’s product to seek comparable damages. While Monsanto remains adamant that the cancer claims related to Roundup do not align with the 2020 Environmental Protection Agency decision that “glyphosate is unlikely to be a human carcinogen,” the Ninth Circuit in a separate case just a week before the Court’s denial of the company’s certiorari vacated the 2020 EPA decision and ordered the agency to reassess the human health risks of glyphosate by October 2022. NRDC, et al. v. EPA, No. 20-70787 (9th Cir. June 17, 2022).

The Eighth Circuit Court of Appeals affirmed a jury award of $1.05 million in compensatory damages and $2.5 million in punitive damages against Biomet, Inc. Nicholson v. Biomet, Inc. arose out of MDL proceedings regarding Biomet’s M2a Magnum hip-replacement device. Plaintiff alleged defective design after experiencing complications from hip replacement surgery using a M2a Magnum device. At trial, plaintiff presented evidence that Biomet should have tested the M2a Magnum device before introducing it to the market but failed to do so.

Losses continue to accrue for 3M Company In Re: 3M Combat Arms Earplug Products Liability Litigation as Florida federal juries issued verdicts in favor of three veterans totaling $187.5 million in compensatory and punitive damages. The MDL filed against manufacturers of combat earplugs involve allegedly defective earplugs that caused hearing injuries and hearing loss to veteran users.

James E. Beal, a former soldier, used the CAEv2 Dual-Ended Combat Arms Earplug manufactured by 3M Company while on active duty from 2005-2009 and then as a reservist in 2011. Beal asserted a defective design theory, among others, in support of his claim that he suffered hearing loss, sequelae to hearing loss, and tinnitus. Beal ultimately secured a jury verdict of $5 million in compensatory damages and $72.5 million in punitive damages for a total award of $77.5 million.

Army veterans Ronald Sloan and William Wayman claimed they sustained hearing loss and tinnitus in both ears after receiving 3M Combat Arms Earplugs Version 2 when they first enlisted in 2006 at the age of 19. After a three-week trial, a Florida federal jury awarded them each $55 million, including $40 million in punitive damages, totaling $110 million in damages.

The United States District Court for the Southern District of West Virginia entered a bench trial verdict in favor of three wholesale distributors of opioids: AmerisourceBergen Drug Corporation, Cardinal Health, Inc., and McKesson Corporation. The West Virginia government plaintiffs, city of Huntington and Cabell County, only asserted one claim of public nuisance against the distributor defendants. The court ruled that West Virginia law does not recognize public nuisance claims based on the sale and distribution of products, including opioids. The court reasoned that “to apply the law of public nuisance to the sale, marketing and distribution of products would ‘open the floodgates of litigation.’”

On April 18, 2022, Johnson & Johnson and Janssen Pharmaceutical Companies announced a $99 million settlement agreement with the State of West Virginia. The agreement effectively removes J&J from the Kanawha County, West Virginia opioid litigation docket where claims remain ongoing. A link to the J&J newsletter can be found here: https://www.jnj.com/johnson-johnson-statement-on-west-virginia-opioid-settlement-agreement

Manufacturers and distributors of Zantac can rest easy following a federal judge’s dismissal of thousands of Zantac lawsuits. On December 6, 2022, Judge Robin L. Rosenberg, who oversees the Zantac (Ranitidine) Products Liability MDL in the U.S. District Court for the Southern District of Florida, granted summary judgment to all defendants after finding plaintiffs failed to establish sufficient evidence of general causation under the Daubert standard that Zantac causes cancer. The application of Daubert and proving medical causation continues to be at the forefront of product liability litigation in 2022. An appeal from the MDL court’s ruling, to the Eleventh Circuit, is expected. 

Tyson Fresh Meats filed a products liability and negligence action against Dykhuis Farms and McKenzie Highlands, Inc. after it was forced to dispose of approximately 1,786,245 pounds of fresh meat that was contaminated by hogs purchased from Dykhuis and raised by McKenzie Highlands. Defendants filed a motion to dismiss arguing that “animals aren’t products,” and that “the court shouldn't expand the definition of product to include animals because its jurisdiction is based on diversity and Indiana courts haven’t addressed the issue yet.” The court dismissed the negligence claim but allowed the product liability claim. It ruled that Indiana law, in accordance with the UCC, finds it “logical to conclude that if the unborn young of an animal is a good, then the adult mature animal ... is also a good under Indiana law.” 

9. Illinois Supreme Court Grants Appeal of Abbott Lab’s Judicial Estoppel Claim

After giving birth to a newborn with severe spina bifida, a mother and her family filed a lawsuit against Northwestern Memorial Hospital. At trial, they argued that the physicians chose not to properly supervise or treat the mother. A jury agreed and awarded the family $18.5 million in damages. The facts of the case revealed that prior to giving birth, the mother was prescribed Depakote, a mood stabilizer, after experiencing several psychotic episodes. Depakote is a drug manufactured by Abbott Laboratories Inc. and AbbVie Inc., who manufactured and sold Depakote, respectively.

The Muhammads filed a separate product liability action against Abbott and AbbVie, alleging they failed to warn of Depakote’s risks of birth defects, among other things. Abbot moved for summary judgment shortly thereafter, arguing that the Muhammads’ claim should be judicially estopped, as they took an inconsistent position in the prior medical malpractice case. The trial court agreed and the Muhammads appealed.

On appeal, The First District reversed and remanded the trial court’s ruling. The court held that a prescribing physician’s malpractice does not necessarily relieve a drug manufacturer from liability for failure to provide adequate warnings of a drug’s risks. As a result, it found that judicial estoppel did not apply. On November 30, 2022, the Illinois Supreme Court granted Abbott’s bid to review the First District’s decision. 

Jackson County, Missouri, and a certified class of other Missouri counties, obtained a $56 million settlement with guardrail manufacturers Trinity Industries, Inc. and Trinity Highway Products, LLC. The county plaintiffs filed a class action alleging products liability, negligence, strict liability, and negligent supply of a dangerous instrumentality for business purposes. Trinity manufactured, marketed, and sold the ET-2000 guardrail end terminal system, purchased by the county plaintiffs. Trinity subsequently redesigned the ET-2000 and rebranded it under the name ET-Plus without notice. The court has since granted preliminary approval of the class action settlement.