Johnson & Johnson ordered to pay $4.69 billion in talc case

Photo credit: Jeff Chiu/Associated Press as reported by The New York Times on 7/12/18.

Photo credit: Jeff Chiu/Associated Press as reported by The New York Times on 7/12/18.

Johnson & Johnson, in one of the largest punitive damage awards in history, must pay $4.69 billion to plaintiffs exposed to talcum-based products which they claimed caused them to develop cancer.

“Johnson & Johnson was ordered Thursday to pay $4.69 billion to 22 women and their families who had claimed that asbestos in the company’s talcum powder products caused them to develop ovarian cancer,” The New York Times reported on July 12. “A jury in a Missouri circuit court awarded $4.14 billion in punitive damages and $550 million in compensatory damages to the women, who had accused the company of failing to warn them about cancer risks associated with its baby and body powders.”

Six of the women who sued the company have died, according to The New York Times. Johnson & Johnson, which has successfully appealed a number of similar cases, vowed to file an appeal.

‘Zero tolerance’ policy on border swells federal caseloads

Metropolitan Correctional Center in San Diego. Photo Credit: Nehrams2020 [CC BY-SA 3.0], via Wikimedia Commons

Metropolitan Correctional Center in San Diego. Photo Credit: Nehrams2020 [CC BY-SA 3.0], via Wikimedia Commons

A Trump administration policy to criminally prosecute illegal border crossings has created a renewed backlog in the federal justice system in the Southwest.

“Failures to bring new arrestees to court in a timely manner has been an issue off and on for years in San Diego and Imperial counties, and federal defense attorneys say that it has only magnified in the past couple months as the Trump administration has vowed to criminally prosecute all illegal border crossings under a ‘zero-tolerance’ policy,”reported Kristina Davis of The Los Angeles Times.

“Since mid-April, when U.S. Attorney General Jeff Sessions announced the new policy, public defenders in San Diego have filed 138 habeas corpus petitions, a civil remedy that in Latin translates to ‘produce the body.’ That’s compared to 13 filed during the same time frame last year, according to court records,” Davis reported.

As a result, more people arrested at the border spend longer periods of time in Border Patrol facilities rather than getting booked into the federal prison system, particularly the Metropolitan Correctional Center in San Diego, according to the report.

California courts react to #MeToo Movement with rule changes

Photo Credit: Rob Kall from Bucks County, PA, USA (#womensmarch2018 Philly Philadelphia #MeToo) [CC BY 2.0], via Wikimedia Commons.

Photo Credit: Rob Kall from Bucks County, PA, USA (#womensmarch2018 Philly Philadelphia #MeToo) [CC BY 2.0], via Wikimedia Commons.

The #MeToo Movement swept California courts this spring, as the judiciary adopted rule changes requiring the disclosure of financial agreements related to complaints of sexual harassment and discrimination.

On May 24, the California courts website reported, “The Judicial Council at its business meeting today revised the rules of court to clarify that any settlement agreements involving judicial officers for which public funds were spent in payment of the settlement must be disclosed if requested, including agreements related to complaints of sexual harassment and discrimination. In April, Chief Justice Tani G. Cantil-Sakauye convened a workgroup to study and recommend changes to the rules of court to ensure that all levels of the state court system respond to these types of public records requests.”

The revised rule allows redaction of names of complainants and witnesses, however.

The Recorder at law.com reports, “The Judicial Council approved the amendments to Rule of Court 10.500 with little discussion and none of the previous criticism from some judges that the mandate was too broad.”

The rule change went into effect June 1.

“The chief justice’s call for changes was in response to records requested by The Recorder and other media outlets that showed the judiciary paid $600,000 since 2011 to investigate and settle harassment claims against court employees and judges. Judiciary branch lawyers declined to name the judges involved or the allegations, citing broad protections for investigations of and claims concerning judges in Rule 10.500.”

Supreme Court agrees to hear civil forfeiture challenge

U.S. Supreme Court in Washington. Photo Credit: AP Photo/J. Scott Applewhite as reported by Forbes, 2/1/18.

U.S. Supreme Court in Washington. Photo Credit: AP Photo/J. Scott Applewhite as reported by Forbes, 2/1/18.

Billions of dollars in government revenue and one of the most contentious constitutional questions of the present day are at stake in a pending U.S. Supreme Court case over civil forfeiture.

“For the first time in over 20 years, the U.S. Supreme Court will have the opportunity to review the constitutionality of civil forfeiture laws, which allow the government to confiscate cash, cars, and even homes,” Forbes reported.

Civil forfeiture laws allowed local and state jurisdictions to reap millions of dollars: “from 2001 to 2014, the Justice Department and the Treasury Department’s forfeiture funds took in almost $29 billion,” Forbes reported.

The court has granted a cert petition from Tyson Timbs, “who was forced to forfeit his $40,000 Land Rover in civil court to the State of Indiana, after he pled guilty to selling less than $200 worth of drugs,” the Forbes article reported.

Timbs prevailed in lower courts, but last fall the Indiana Supreme Court ruled against him. “The Excessive Fines Clause does not bar the State from forfeiting Defendant’s vehicle,” the court ruled, “because the United States Supreme Court has not held that the Clause applies to the States through the Fourteenth Amendment.”

Now, the U.S. Supreme Court is poised to weigh in.

Records: Booted Tulare County, CA judge focus of $120,000 sex harassment case

The sexual harassment case against a Tulare County judge who was ousted from the bench is documented in a five-page settlement document released as a result of newly revised rules of disclosure in California’s judiciary.

The Recorder at law.com reported on June 12, “California’s judiciary paid a Tulare County Superior Court clerk $120,000 in 2016 to settle claims that a judge — now removed from the bench — harassed her over several months in 2013.”

The Recorder noted, “The payment was made to Priscilla Campos Tovar, a Tulare court clerk who alleged that Judge Valeriano Saucedo attempted to pressure the married woman into a romantic relationship by sending her frequent text messages and numerous gifts, including a family trip to Disneyland, cash and a car. Saucedo argued he was only trying to act as a mentor to Tovar. The Commission on Judicial Performance ordered Saucedo removed from the bench in December 2015, calling his conduct ‘so completely at odds with the core qualities and role of a judge that no amount of mitigation can redeem the seriousness of the wrongdoing.’”

On May 24, the California Judicial Council revised the rules of court “to clarify that any settlement agreements involving judicial officers for which public funds were spent in payment of the settlement must be disclosed if requested, including agreements related to complaints of sexual harassment and discrimination,” the state’s judicial website reported.

The Recorder reported, “The Tulare court settlement is one of three involving judges around the state dating back to 2010. Lawyers for the Judicial Council acknowledged in March that the judiciary had paid $296,000 to settle three complaints against judges, although it declined to identify the judges or say whether they remained on the bench.”

Tar Heel State on Point to Tackle Asbestos Fraud by Sara Corcoran, Courts Monitor Publisher

U.S. Sen. Thom Tillis is among several senators pushing reform with the “PROTECT Asbestos Victims Act.” Photo credit: Wikipedia.

U.S. Sen. Thom Tillis is among several senators pushing reform with the “PROTECT Asbestos Victims Act.” Photo credit: Wikipedia.

North Carolina, long famous for great college sports and some of the nation’s best barbecue, is fast earning recognition of another sort: Being at the forefront of America’s longest-running personal injury litigation, asbestos lawsuits. The new status is interesting in the civil justice sense not only because of recent landmarks involving talc (I’ve written about that here but over how the state overlaps with national political trends.

For example, there was another “reform” milestone this month as the Tar Heel State became, by my count, at least the 15th state to embrace increased transparency in the virtually unregulated filed of asbestos bankruptcy trusts. The trusts are part of a special process for asbestos companies to protect them from massive liability, and industry watchers say some 100 companies have gone the bankruptcy route.

Of course, asbestos litigation community members will recall that one of the more prominent bankruptcies came in 2004 in North Carolina, and has unearthed questionable practices as related to the management of asbestos trusts. “Garlock” is a gasket manufacturer that received bankruptcy protection in Charlotte, NC. In an unusual move, a retired judge presiding over the case allowed discovery into 15 cases, eventually deciding that ALL 15 had some level of evidence suppression.

For context, it is worth noting that asbestos bankruptcy is an insular environment. Faced with burgeoning asbestos liability in the early 1990s, the U.S. Congress in 1994 created a system that allowed court-approved trusts to assume those payouts. Funded by the companies, the trusts are typically managed by victims’ attorneys and have come under fire for having little or no independent oversight.

The Reuters news service explained that “… a judge who found what he called a ‘startling pattern’ of abuse by plaintiff’s lawyers may have shifted the landscape of asbestos litigation with a ruling in favor of manufacturers” and then quoted from the judges decree stating that lawyers had manipulated evidence to get bigger settlements from Garlock.

Citing his finding, the judge knocked a billion dollars off the amount victims attorneys were seeking for asbestos cancer victims. Garlock even sued some of the firms that had been suing them, claiming racketeering. That case was resolved, but other civil racketeering cases have been filed and more than a dozen state attorneys general have taken notice, The AG group issued a formal letter demanding information from trust records, but did not get that information. That effort resulted in a lawsuit in Utah, and developments are ongoing.

In discussing North Carolina, it is also worth noting that in neighboring South Carolina, another retired judge – a former state supreme court chief justice – presided over one of the nation’s high-profile asbestos/talc trials that ended in a hung jury. More than 10,000 lawsuits nationwide claim that talc was involved in giving them cancer, with some jury awards in the millions of dollars. Defendants note that none of that has been paid out and appeals have overturned some big awards.

Federally, the asbestos trust transparency has been a casualty of Congressional gridlock for years. Yet new traction is being reported for a bill with – you guessed it! – North Carolina connections. U.S. Sen. Thom Tillis is among several senators pushing reform with the “PROTECT Asbestos Victims Act.”

Probably the most significant section of the bill involves allowing the U.S. Trustee Program of the Department of Justice, which has oversight of similar trusts, to investigate fraud against the asbestos trusts – a power not included when Congress created the asbestos-specific system in 1994.

“Asbestos bankruptcy trusts were created to compensate asbestos victims, not trial lawyers,” said Senator Tillis. “The PROTECT Asbestos Victims Act will reform the asbestos bankruptcy trust system by adding in layers of oversight, accountability and transparency, which in turn will help eliminate fraud and ensure that trusts are able to compensate present and future asbestos victims.”

Another sponsor of the bill, Chuck Grassley (R-IA), argued that we “… need commonsense accountability measures to ensure that the trust fund is not syphoned away from the victims it was intended to help. And we need independent oversight to protect against any waste, fraud, and abuse. This bill accomplishes these much needed reforms.”

Grassley refers to a provision of the proposed law that empowers the U.S. Trustee Program of the Department of Justice to investigate fraud against asbestos trusts, which they are excluded from doing under current law. Allegations of potential fraud has brought some to support trust transparency efforts, at least in part because asbestos cancers impact U.S. military veterans more than the non-vet population.

For example, the reforms would no doubt be welcomed news to the American Legion, one the nation’s largest veterans’ groups, which has repeatedly endorsed legislation aimed at discovering attorneys who might be pilfering the trusts.

If that turns out to be the case, keep an eye on the Carolinas, Tar Heels and Palmettos alike.

(Sara Corcoran is the publisher of the California Courts Monitor, National Courts Monitor, and a contributor to CityWatchLA and other news outlets.)

Alameda County court provides links — with redactions — to settlements

Justice Marsha Slough, Associate Justice of the California Fourth District Court of Appeal, led the workgroup tasked with amending the rules of court to clarify that any settlement agreements involving judicial officers are publicly disclosable. Photo credit: California Courts website

Justice Marsha Slough, Associate Justice of the California Fourth District Court of Appeal, led the workgroup tasked with amending the rules of court to clarify that any settlement agreements involving judicial officers are publicly disclosable. Photo credit: California Courts website

The Alameda County Superior Court in California agreed to pay an employee $175,000 in a 2017 settlement. In another instance, in 2016, the court settled for $26,600 to resolve a charge of harassment.

These and other public records are available at a page on the Alameda County Superior Court website. This is the product of a rule change in the California judiciary on May 24, when the California Judicial Council revised the rules of court “to clarify that any settlement agreements involving judicial officers for which public funds were spent in payment of the settlement must be disclosed if requested, including agreements related to complaints of sexual harassment and discrimination,” the state’s judicial website reported.

The Recorder at law.com reported on June 8, “Two weeks after California’s judiciary leaders ordered more transparency in disclosing taxpayer-funded settlements of judicial wrongdoing, most courts have offered the same response: We don’t have anything to report.”

Two appellate courts — the Second and the Sixth — and more than half of the trial courts told the publication that they had no responsive records to release.

“One court, however, took a different tack,” the Recorder reported. “Alameda County Superior Court unveiled a page on its website Friday that contains links to what court officials said are all ‘documents reflecting the resolution of claims or litigation — from Jan. 1, 2010, to the present, involving the court, its employees, and/or its judicial officers.’”

The Recorder acknowledged that the blacked-out portions of the documents often left questions. “The redactions and limited information in the documents makes it unclear if the court ever paid an employee to settle claims of sexual harassment or other misconduct by a judicial officer,” the publication reported.

Judge: Florida’s ban on smokable medical marijuana is unconstitutional

 

Photo credit: Orlando Weekly, 5/2/18

Photo credit: Orlando Weekly, 5/2/18

A state-imposed ban on smokable medical marijuana is unconstitutional, a Florida judge has ruled.

Leon County circuit court Judge Karen Gievers on June 5 upheld her May 25 ruling, ending a stay in this back-and-forth dispute.

“The state’s Department of Health had filed an appeal of Gievers’ original ruling, which automatically put it on hold,” The Associated Press reported. “Even with the stay being lifted, smokable medical marijuana will not immediately be available for sale at treatment centers.  That’s because the Department of Health must come up with rules for cultivation and distribution, which could take several months.”

Orlando Weekly noted that an appeals court had temporarily blocked a Tampa businessman from growing marijuana as he sought to prevent a relapse of lung cancer. The 1st District Court of Appeal had reinstated a stay of Gievers’s May 25 ruling. The circuit court’s ruling had cleared Joe Redner to grow his own marijuana for a treatment known as “juicing,” Orlando Weekly reported.

 

Iconic S.C. Judge, Odd Dateline Mark Milestone In Talc Cancer Litigation

Photo Credit: Tim Dominick | The State, as reported by The State, 12/5/15.

Photo Credit: Tim Dominick | The State, as reported by The State, 12/5/15.

 
 by Sara Corcoran, Courts Monitor Publisher
 
“So far, the story of the talc litigation has mostly been about two things—the science and the choice of forum,” said Howard Erichson, a professor at Fordham University School of Law, quoted in the National Law Journal.
 
Despite late-night television ads and some media coverage, it may still come as a surprise to many people that nearly 10,000 families have brought lawsuits alleging that talc – yes, the talk of baby powder and old-school hygiene – caused their cancer, but that has been a rapidly emerging personal injury trend over the past few years.
 
Mostly, the big-verdict headlines have come from places that observers of civil litigation might expect: A California jury awarded $417 million in a single case (since overturned by a state judge who ordered a new trial), a few hundred million from St. Louis juries, several thousand cases pending in a New Jersey multi-district federal court.
 
So when news broke recently that the latest milestone case had ended in a hung jury, it was noteworthy not only that the case came from Darlington County (population 68,000) in the usually business-friendly South Carolina, but also that the judge in the case is progressive judicial icon and retired South Carolina Chief Justice Jean Hoefer Toal.
 
While it’s certainly not uncommon for retired judges to preside over trials, especially ones that promise to take months of hearing and weeks of testimony, it’s not often that a former state chief justice takes the bench. And Judge Toal is no usual justice: When she published a 23-essay book last year entitled “Madam Chief Justice,” contributors of glowing pieces included U.S. Supreme Court Associate Justice Sandra Day O’Connor and current Associate Justice Ruth Bader Ginsburg.
 
Drawing Judge Toal could not have been good news for Johnson & Johnson lawyers, given her longstanding advocacy for consumer rights and assertive demeanor honed over 27 years on the state’s highest court, with nearly 16 of those as chief justice.
 
Asked about her “assertive temperament” in a profile by The State newspaper of Columbia, S.C., Toal responded, with a reported smile:  “I very much concede that I understand the power of controlled aggression,” she says, explaining that it’s part of a trial lawyer’s psyche to be fierce. “Sometimes you need to get people’s attention. But you don’t need to beat them over the head with it. But yes, passion needs a face.”
 
She may also become the judicial face of the next talc litigation milestone, since the victims’ attorneys intend to re-try the case.
 
In a major story by reporter Lauren Sausser published May 6, in the Charleston, S.C.-based The Post and Courier newspaper tackled the talc litigation issue. In a story labeled “Toxic talc?” 
 
Sausser explains that a South Carolina woman “… is among thousands of women who have filed lawsuits against Johnson & Johnson, emboldened by multi-million-dollar verdicts and a body of anecdotal and scientific evidence linking talcum powder to cancer. They’re fighting to prove a definitive connection and to force the company to post warning labels on its product to spare others from the same fate.”
 
Sausser also quotes Charleston attorney Carmen Scott explaining that it was a $72 million for a South Carolina woman named Jacqueline Fox that provided “a watershed moment” for talc litigation. Scott, who handles hundreds of talcum powder cases at Motley Rice in Charleston told the newspaper that the $72 million verdict in that case represented “a very angry jury.”
 
Yet the story also notes that a Missouri appeals court tossed out the verdict, deciding that it was tried in the wrong venue, and that “… none of the plaintiffs have received any money, and company executives point to a lack of conclusive evidence linking ovarian cancer with their product.”
 
That means the talc litigation, unlike asbestos-based litigation over the cancer mesothelioma that has spanned over 40 years, is just getting started; specific courts and judicial decisions are just now being created.
 
Into that arena comes Judge Toal and her “assertive temperament.” Can that hold up in South Carolina’s pro-business environment? Well, she was on the high court for more than a quarter century and even survived an unusual election attempt by business-focused forces aimed at removing her from that job.
 
My bet? Look for more talc/asbestos headlines out of The Palmetto State.
 
(Sara Corcoran is publisher of the Courts Monitor and a contributor to CityWatch LA and other news outlets.)

Judge seeks funding information in opioid-manufacturer lawsuits

Photo Credit: By richiec from Chicago, USA [CC BY-SA 2.0, via Wikimedia Commons.

Photo Credit: By richiec from Chicago, USA [CC BY-SA 2.0, via Wikimedia Commons.

A U.S. District judge wants information about the funders behind hundreds of lawsuits against manufacturers and distributors of opioids.

The judge overseeing more than 600 lawsuits targeting opioid makers is demanding local governments’ lawyers turn over information about any litigation-funding agreements and provide assurance that lenders won’t gain control over legal strategy or settlements,” Bloomberg reported.

U.S. District Judge Dan Polster in Cleveland issued the order on May 7, “saying he wants to ensure the agreements don’t create conflicts of interest by affecting plaintiffs lawyers’ judgments in pursuing cases against opioid makers, such as Purdue Pharma LLP and Johnson & Johnson, and distributors such as McKesson Corp. and Cardinal Health Inc.”

Bloomberg explained, “He wants to know details of any lending arrangements, and he requested sworn statements from the lawyers and lenders that there won’t be any conflicts of interest and that the lenders won’t have control over strategy, advocacy or settlement decisions.”

On April 11, Reuters reported that Polster was pushing for a settlement and pursuing an aggressive schedule “that would have the first trial take place in March 2019.”

Reuters noted, “The lawsuits accuse the drugmakers of deceptively marketing opioids and allege that drug distributors ignored red flags indicating the painkillers were being diverted for improper uses. In 2016, 42,000 people died from opioid overdoses, according to the U.S. Centers for Disease Control and Prevention.”