HB Litigation News

Category: Mass Torts

  • The Intersection of Antitrust & Privacy | A MoginRubin Webinar | 10.31.2019

    The Intersection of Antitrust & Privacy Law

    [two-fifths-first] Recorded: Oct. 31, 2019
    Duration: 100 minutes
    Presented by:  MoginRubin LLP
    Produced by: HB Litigation Conferences

    The Panel

    Moderator
    Daniel J.  Mogin | Managing Partner, MoginRubin LLP

    Speakers
    Jennifer M. Oliver, CIPP/US | Partner, MoginRubin LLP
    Thomas N. Dahdouh | Director, Western Region, Federal Trade Commission
    Franklin M. Rubinstein | Partner, Wilson Sonsini Goodrich & Rosati
    Randi W. Singer, CIPP/US, CIPT | Partner, Weil, Gotshal & Manges

    Contributor
    Dina Srinivasan |     Independent Researcher & Author of The Antitrust Case Against Facebook
    Dina was unable to present but we thank her for her content contributions. 

    What you will get:

    • At least 1 hour of CLE credit.
    • Answers to your questions via email.
    • The opportunity to share with others on your team.
    • The complete Powerpoint.
    • The Antitrust Case Against Facebook
    • Dina Srinivasan’s statement to the House Committee on the Judiciary, Subcommittee on Antitrust, Commercial, and Administrative Law
    • The Chicago Booth School Stigler Center Committee on Digital Platforms Final Report

    Write to us at CLE@LitigationConferences.com to:

    • Ask about CLE
    • Request the materials
    • Send a question for the speakers

    [/two-fifths-first][three-fifths]

    Market Behavior and Data-Driven Market Power

    Highly publicized cases and investigations in the U.S. and Europe of big technology, e-commerce, and social media companies demonstrate how anti-competition laws are being used to scrutinize and challenge not only how these corporations conduct themselves in the marketplace, but the very core of their colossal success: the mass collection and utilization of user data.

    Are the privacy and antitrust worlds beginning to cross over?

    Or do they simply run parallel while addressing entirely different types of conduct? Whatever the answer, data is the raw material that drives the likes of Google, Facebook, Apple and Amazon, so how it is handled is a critical question when counseling clients on mergers and acquisitions.

    Meanwhile, there is increasing pressure on antitrust enforcers to consider privacy issues when conducting merger reviews.

    Antitrust laws allow and require consideration of data collection, handling, and use if there is a risk to fair competition. But are the agencies equipped to analyze the effect of post-merger datasets? Should they examine the privacy ramifications of proposed deals?

    Viewpoints on the overlap between the regimes are wide-ranging and nuanced. In a June speech, DOJ Antitrust Division chief Makan Delrahim said that “by protecting competition we can have an impact on privacy and data protection.” During a 2018 interview, though, FTC commissioner Noah Phillips argued that “privacy law and antitrust law each addresses different harms and vindicates different rights.”

    What does all of this mean to the practitioner or in-house counsel?

    Take this 100-minute webinar now to gain insights from leading experts on these issues, with a balance of perspectives from both the plaintiff and defense bars, academia, and regulatory enforcement.

    Get answers to questions like these:

    • Who should regulate privacy violations in the U.S.?
    • Which antitrust issues implicate privacy concerns?
    • What role does machine learning play on the competitive landscape?
    • What is big data really? How is it different from “data”?
    • What are the elements of effective merger reviews?
    • What are the appropriate remedies?
    • What are “notice-and-choice” versus “harms-based” approaches?
    • And more!

    [/three-fifths]

    Moderator & Speaker

    Daniel J.  Mogin, Managing Partner, MoginRubin LLP. Dan concentrates on antitrust, unfair competition and complex and business litigation. He has been selected as lead or liaison counsel in numerous cases and has also frequently served on Steering and Executive committees charged with overall responsibility for direction of complex Multi-District Litigation and Judicial Council Coordination Proceedings. He has participated in some of the largest antitrust class actions in the United States. Dan is frequently invited to participate in these cases by other law firms and often consults with law firms engaged in antitrust cases. He has also provided expert testimony in cases and before the California State Senate Judiciary Committee. Dan received his B.A. in Economics from Indiana University and his J.D. from the University of San Diego.

    Speakers

    Jennifer M. Oliver, CIPP/US, Partner, MoginRubin LLP.  Jennifer joined MoginRubin LLP in 2017 after nearly ten years as a complex business litigator in New York City. She focuses on antitrust, as well as complex business and investment litigation.  Jennifer is a member of the California Lawyer’s Association’s Privacy subcommittee and of the International Association of Privacy Professionals (IAPP), and is an IAPP Certified Information Privacy Professional. Jennifer has played active roles in high-profile jury trials, served as lead counsel in complex mediations, and argued before both trial and appellate courts. In addition to her merger and cartel work, Jennifer has also advised on antitrust issues in mergers and acquisitions and litigated cases involving trade secrets, RICO conspiracies, securities fraud, unfair trade practices, breaches of contract and privacy cases. She earned her B.S. in Business Administration, M.B.A., and J.D. from the University at Buffalo, each with honors.

    Thomas N. Dahdouh, Director, Western Region, Federal Trade Commission.  Prior to his current position Tom served as Assistant Regional Director for the Western Region.  He worked for 14 years as a staff attorney in the San Francisco office of the FTC, handling consumer protection and antitrust matters.  Previously, he worked at the FTC’s Washington, D.C., headquarters for two commissioners.  He has also served on the Executive Committee of the California State Bar’s Antitrust, UCL and Privacy Section since 2009, most recently serving as its Chair from 2014-2015.  He received his J.D. from Harvard Law School and his B.A. from Yale University.

    Franklin M. Rubinstein, Partner, Wilson Sonsini Goodrich & Rosati. Franklin is an antitrust partner in the Washington, D.C., office. His practice encompasses a wide variety of antitrust matters, including mergers and acquisitions, investigations by the United States Department of Justice and the Federal Trade Commission, litigation, criminal investigations, and counseling on issues such as distribution, monopolization, tying, exclusive dealing, price-fixing, and antitrust compliance. Franklin has represented a diverse set of clients in the software, computer hardware, pharmaceutical, medical device, gaming, automobile, natural resource, Internet, and media industries. Education: J.D., University of Chicago Law School; B.A., Swarthmore College.

    Randi W. Singer, CIPP/US, CIPT, Partner, Weil, Gotshal & Manges. Randi has earned the Certified Information Privacy Professional (CIPP/US) and Certified Information Privacy Technologist (CIPT) credentials and regularly advises clients in connection with privacy, cybersecurity, and social media issues in a wide variety of matters, including hundreds of transactions ranging from high-profile deals such as Facebook’s acquisition of Whatsapp, Inc. to large public company mergers and small talent acquisitions. In 2015, The National Law Journal recognized Randi as one of its inaugural “Trailblazers” nationwide for her cutting-edge work in the cybersecurity and data privacy area. 

    Contributor

    Dina Srinivasan, Independent Researcher & Author of The Antitrust Case Against Facebook. Dina currently advises on the economics of digital advertising markets and continues to write about tech and antitrust. She is the author of “The Antitrust Case Against Facebook“, an academic paper published in the Berkeley Business Law Journal (February 2019)  that explains Facebook’s monopoly power under U.S. antitrust law. Her research and commentary on tech and antitrust have been covered or cited by U.S. Congress, The New York Times, Bloomberg, Business Insider, NBC News, the Today Show, and other publications and radio stations, domestically and globally. She was an executive with WPP, the world’s largest advertising holding company. She founded Effidia, an advertising technology company whose technology was acquired by a division of WPP. Dina also created one of the first applications to bridge text messaging across CDMA, TDMA, and GSM spectrum networks in the U.S.  She holds a J.D. from Yale Law School, where she studied law & economics and was an Olin Fellow with the Kauffman Program in Law, Economics and Entrepreneurship.

    Privacy Matters

    Take a look at the Apple privacy commercial. This comes up during the webinar. If it raises any questions for you, please let the speaker know. Write to us at Questions@LitigationConferences.com. What do you think?

    Check out the MoginRubin Blog for insights on anticompetition, privacy, mergers and more.

  • PTSD in Multi-Plaintiff and Mass Tort Cases | Webinar OnDemand

    [one-fourth-first]

    Price: $47
    When: On-demand
    Where:     Your computer or mobile device
    CLE:     1 hour

    Speakers

    Mark I. Levy MD, DLFAPA
    Medical Director
    Forensic Psychiatric Associates Medical Corporation
    Associate Clinical Professor, Psychiatry
    University of California, San Francisco, School of Medicine
    415.388.8040
    mlevy@fpamed.com 

    Sarah A. Hall, PhD.
    Psychologist for Forensic & Neuropsychological Assessments
    Forensic Psychiatric Associates Medical Corporation
    shall@fpamed.com 

    [/one-fourth-first][three-fourths]

    What tort attorneys need to know about PTSD claims.

    Mass tort claims arise most frequently in man-made and natural disaster catastrophe litigation as well as personal injury, employment, product liability and toxic tort litigation. Frequently, these lawsuits include either primary or secondary allegations of emotional distress. PTSD is one of the most common emotional distress claims alleged within mass tort litigation, as well as allegations of depression and emotional stress (anxiety). 

    Join an experienced psychiatrist and psychologist who will cover the following topics relevant to the forensic psychiatric assessment of emotional damages within mass tort and complex litigation: 

    + Introduction: Defining PTSD. What it is and what it is not.

    + The methodological approach to assessing allegations of emotional distress in mass tort & complex litigation.

    + The importance and the methodology of psychological testing as part of the assessment of emotional distress claims in mass tort litigation.

    + Claimant population screening. Using psychological test instruments to differentiate claimants who require in-depth forensic psychiatric assessment from claimants who do not. 

    + Are all psych tests the same? Types of psychological test instruments we recommend and ones that we do not — and why.  

    + So-called “PTSD Tests.” Do they have a role in forensic psychological assessments?

    + Accuracy and reliability of conclusions derived from psychological test data.

    + Taking a “team approach” to emotional distress claim assessment in mass tort litigation. 

    [/three-fourths]

  • CNN — Jury returns $2 billion verdict against Monsanto for couple with cancer — the biggest so far

    [one-half-first][/one-half-first] [one-half]

    A California jury returned a $2.055 billion verdict against Monsanto and their popular weed killer, Roundup. “The verdict in Oakland includes more than $55 million in compensatory damage and $2 billion in punitive damages.” The septuagenarian plaintiffs, represented by attorney Michael Miller of The Miller Firm, were a California couple that said long-term exposure to Roundup caused both of them to be diagnosed with non-Hodgkin lymphoma, a cancer that usually cannot be traced back to a source according to the American Cancer Society. The particular carcinogen in Roundup is glyphosate, which the EPA has stated was not a carcinogen in a 2015 assessment, which contradicts WHO’s statement that glyphosate is “probably carcinogenic to humans”. While a Monsanto spokesperson previously denied any manipulation, a jury found that a series of texts and emails between Monsanto and the EPA that proved Monsanto culpable of manipulating science.

    [/one-half]

    Read the complete post by Michael Nedelman on CNN.com here!

  • The Wrong-Headedness of Hindsight Standards — Michelle Yeary | Drug & Device Law Blog

    Dechert LLP attorney Michelle Yeary cautions against applying perfect hindsight to drug liability.

    “We all know hindsight is 20/20.  And, it’s easy.  There are dozens of television and radio programs that thrive on Monday morning quarterbacking.  There’s no risk in saying the coach should have called for a pass when you already know the run didn’t work.  It’s also dangerous because it’s easy.  People are often too quick to point out that you should have taken path B after everyone learns path A is full of potholes.  Pointing it out is one thing, holding you liable for it is another.”

    Yeary takes a look at what happened in Holley v. Gilead Science, Inc., 2019 WL 2077845 (N.D. Cal. May 10, 2019). The case involves two of the main active ingredients in AIDS drugs: TDF and TAF. The plaintiff alleges that the defendant should be responsible for allegedly knowingly using TDF over TAF (allegedly a safer alternative). TDF was FDA approved first and TAF second.  Unfortunately, Yeary wrote, hindsight “can be used to demand perfection,” allowing  plaintiffs to “proceed on what is essentially a stop-selling theory,” that first-generation drugs should not be submitted to the FDA because, in hindsight, “later approved treatments were safer.” That’s what happened in Holley, she said.

    Read the complete post by Michelle Yeary on the Drug and Device Law Blog here. 

    Read the opinion here.

  • J&J Hit with $120 Million Verdict at Mesh Trial

    A Philadelphia jury returned a $120 million verdict against Johnson & Johnson after finding that a negligently designed pelvic mesh implant caused chronic pain and suffering, which left plaintiff Susan McFarland incontinent and unable to have sex for the last 10 years. McFarland alleged the implant she received in 2008 caused the product to saw through the soft tissue in her pelvis and become exposed in her vagina. She had to undergo a second surgery to remove a portion of the implant (Susan McFarland,et al. v. Ethicon Inc., et al., No. 130701577, Phila. Comm. Pls. Ct.).

    This is the second of two trials. The jury in the first trial was deadlocked, unable to agree on the extent of negligence of the design of the Ethicon product. Tracie Palmer, McFarland’s attorney, added in the second trial that the vaginal mesh was on market prior to clinical studies determining its safety and efficacy. 

    Defense attorney Adam Spicer maintained that the chronic pain McFarland experienced could be due to other causes, including her age. He said the product had been used for years prior. 

    McFarland’s case is one of more than 100,000 cases brought together in the MDL, down from nearly 105,000 cases against seven manufacturers.  The MDL will be closing and there will be two more waves of trial, with next wave comprising 150 cases. Final settlement conferences are scheduled for August 1 with trial set to begin August 14.

    McFarland and her husband are represented by Tracie Palmer, Braden Lepisto, Shanin Specter and Lee Balefsky of Kline & Specter PC.

    Ethicon is represented by Kate Skagerberg of Beck Redden LLP, Adam Spicer, Paul Rosenblatt and Jordan Walker of Butler Snow LLP, and D. Alicia Hickok, Kenneth Murphy and Melissa Merk of Drinker Biddle & Reath LLP.

  • Philadelphia Jury Hits J&J with $120M Award in Mesh Injury Case — Law360

    [one-half-first][/one-half-first] [one-half]

    “Jurors credited claims from Susan McFarland that the negligent design of a mesh implant she received in 2008 caused the product to saw through the soft tissue in her pelvis and become exposed in her vagina. She was eventually forced to undergo a second surgery to remove a portion of the implant.

    “The pain she’s been left with as a result of the complications, she says, has prevented her from having sex with her husband for the last 10 years.

    “This is the second time jurors have been asked to determine whether McFarland and her husband should be awarded damages for injuries she attributes to alleged defects in a so-called TVT-O implant she received to treat urinary stress incontinence.”

    Read the complete article on Law360 here. [/one-half]

  • Top Class Actions: Vaccine Litigation Case Roundup

    [one-half-first][/one-half-first] [one-half]There have been numerous lawsuits filed alleging injuries caused by the shingles vaccine Zostavax. Cases have stated they were not warned of the adverse side effects of the vaccine alleging it caused the diseases it is meant to prevent, among other things.

    Here is what the CDC says to consumers: “Your risk of shingles and postherpetic neuralgia (PHN) increases as you get older. CDC recommends that people 60 years old and older get shingles vaccine (Zostavax®) to prevent shingles and PHN. Shingrix (recombinant zoster vaccine) is the preferred vaccine, over Zostavax® (zoster vaccine live), a shingles vaccine in use since 2006. Zostavax may still be used to prevent shingles in healthy adults 60 years and older. For example, you could use Zostavax if a person is allergic to Shingrix, prefers Zostavax, or requests immediate vaccination and Shingrix is unavailable. Zostavax (zoster vaccine live) was licensed by the FDA in 2006. This vaccine reduces the risk of developing shingles by 51% and PHN by 67%. It is given in one dose as a shot, and can be given in a doctor’s office or pharmacy.“

    Read more: https://www.cdc.gov/vaccines/vpd/shingles/public/zostavax/index.html

    The vaccine is produced by Merck & Co.  Their product information can be found here: https://www.merckvaccines.com/Products/Zostavax

    Here is a roundup of the cases filed.

    [/one-half]

    1.Husband and Wife File Zostavax Shingles Vaccine Lawsuit 

    “A North Carolina husband and wife recently filed a new Zostavax shingles vaccine lawsuit against pharmaceutical giant Merck & Co., alleging the vaccine caused serious side effects.

    “The plaintiff, Cecilia S., says she was inoculated with the Zostavax vaccine on March 5, 2017, in order to prevent shingles (or herpes zoster). Unfortunately, the day after receiving this vaccine, Cecilia alleges she suffered from a number of problems, including herpes zoster, cellulitis, and postherpetic neuralgia.”

    2. Zostavax Lawsuit Says Vaccine Caused Shingles

    “West Virginia patient has filed a Zostavax lawsuit claiming the shingles vaccine gave her shingles instead of preventing her from getting it.

    “Shingles is a rash caused by a virus, and can have lasting effects, according to Science News. Shingles is more common in older people, and recently, Pharmacy Times reported that there has been a push to increase vaccination rates.”

    3. Can You File a Shingles Vaccine Lawsuit?

    “Some patients have come forward with reports of major complications after treatment with Zostavax, a popular shingles vaccine—and some have even filed a shingles vaccine lawsuit over these Zostavax side effects.”

    4. No Warning of Severe Reactions to Shingles Vaccine, Couple Claims

    “A couple from Illinois alleges they are suffering from severe reactions to shingles vaccine, complications that pharmaceutical company Merck allegedly failed to warn about.

    “The couple filed legal action after discovering other patients had reported similar adverse vaccine reactions soon after getting the Zostavax shot.

    “Plaintiffs Victoria and Earl V. filed this Zostavax lawsuit alleging Victoria developed shingles, or herpes zoster, despite having been vaccinated against it.”

    5. Lawsuit Alleges Hearing Problems Due to Zostavax Shingles Vaccine

    “Plaintiff Kim M. is the latest to lodge a lawsuit against Zostavax maker Merck and Company, arguing that the shingles vaccine causes preventable and dangerous Zostavax side effects such as hearing loss. She argues that she might have made a different decision about getting the shot if she had known about the risks.

    “The plaintiff alleges that she received the Zostavax vaccine for regular health purposes and prevention of shingles in February 2016 while a resident of California.”

    6. Lawsuit Alleges Shingles Vaccine Adverse Effects are Permanent 

    “A couple has filed a lawsuit alleging they suffer from shingles vaccine adverse effects.

    “Plaintiffs Kathleen H. and Joseph W. say Kathleen received the Zostavax vaccine in 2017 for the prevention of shingles, medically known as herpes zoster.

    “They allege she suffered severe side effects from the inoculation, including a stroke, physical limitations, mental and emotional distress and severe, permanent personal injuries.”

    7. Common Zostavax Shingles Vaccine Complaints Named in New Lawsuit

    “The Zostavax shingles vaccine emerged on to the market as a new option for people at risk for developing shingles to guard against it. The CDC recommends that individuals aged 60 and older get the shingles vaccine whether or not they remember having had chicken pox previously in their life. According to research studies, more than 99 percent of Americans 40 and beyond have gotten chickenpox even if they don’t remember getting the disease.”

    8. Growing MDL Alleges Serious Zostavax Shingles Vaccine Reactions

    “Merck & Co. is facing a growing multidistrict litigation (MDL) consisting of similar claims alleging patients developed serious side effects from the company’s Zostavax shingles vaccine.

    “One of the most recent Zostavax shingles lawsuits was filed by a woman from Tennessee, who alleges Merck failed to disclose the full scope of potential vaccine reactions.”

    9. Zostavax Lawsuit alleges Vaccine caused Permanent Cardiovascular Complications 

    “This Zostavax lawsuit is joining a growing multidistrict litigation (MDL), which consists of similar claims alleging Merck failed to warn them against the full severity of the potential side effects associated with their shingles vaccine.

    “Plaintiff couple Terrance and Brenda O. conjointly filed this Zostavax lawsuit, stating the side effects of the shingles has permanently impacted their marriage and their quality of life. Like numerous other patients in the United States, Terrance says he was prescribed the Zostavax injection to prevent shingles soon after he turned 60.”

    10. Lawsuit Claims Shingles Vaccine and Eye Problems Connection

    “Many consumers have already come forward to allege a connection between the Zostavax shingles vaccine and the development of shingles itself.

    “However, more patients are now arguing that the shingles vaccine and eye problems is another troubling connection about which the public is not aware.”

  • The Need for Real MDL Rules Will Only Grow More Acute — Drug and Device Law Blog

    By Bexis 

    [one-half-first].[/one-half-first] [one-half]”In the ensuing procedural gamesmanship, plaintiffs are in the process of losing one of the main ways they gamed the system to keep diverse cases in state court – the so-called ‘forum defendant rule’ whereby even a diverse action could be kept in state court by the presence of defendant domiciled in the plaintiff’s chosen forum. The forum defendant rule applies only to parties ‘properly joined and served,’ and technologically-savvy defendants have discovered that, by monitoring electronic dockets, they can remove diverse cases faster than plaintiffs can serve forum defendants. We call this ‘pre-service,’ ‘snap,’ or ‘wrinkle’ removal, and we’ve chronicled (and advocated) its rise since 2007.”

    Read the complete post by Bexis on Drug and Device Law Blog here. [/one-half]

    This is an excellent blog. One of my favorites. It’s unapologetically defense-oriented, of course. A phrase like “gamed the system” is practically an invitation for rebuttal! So if you would like to respond, rebut, or rebuke, please write to us at Editor@LitigationConferences.com. –Tom Hagy, HB

  • A Generic Drug Failure to Warn Claim? –Michelle Hart Yeary

    [one-half-first][/one-half-first] [one-half] “Rather than focusing on what plaintiff’s off-label marketing claim really was – a claim that defendant’s label should have contained different information or warnings about off-label uses – an impliedly preempted claim, the court got distracted trying to fit the case in under Bausch and started talking about parallel violation claims.

    “The court found that because plaintiff was alleging a violation of federal regulations, his claims “run parallel to [defendant’s] state law duties,” and thus were not preempted. The problem with this is that Mensing is not an express preemption case.  It was an implied preemption case, and the district court had no business applying ‘parallel claim’ analysis to implied preemption, where a ‘parallel claim’ exception does not exist.  It makes no difference whether plaintiff’s off-label promotion claim is ‘parallel’ to federal regulations, defendant could not have offered any different warning so any claim that the warning or information it provided was inadequate is preempted under Mensing.  The court was trying to fit a square peg into a round whole – and the only way that works is to cut off the corners.”

    Read the complete post by Dechert’s Michelle Hart Yeary here!

    [/one-half]

  • Private Calif. Plaintiffs Seemingly Enforcing FDCA, Drug & Device Law Blog Says

    “Doctors treated two plaintiffs for severe psychological problems, ultimately employing defendant’s Thymatron System IV to perform electroconvulsive therapy. Plaintiffs claimed that, as a result, they suffered brain trauma, memory loss and other brain-related injuries. They filed product liability claims based, in the main, on the manufacturer’s alleged failure to report adverse events. The decision in Riera addressed summary judgment motions, ones filed by both the plaintiffs and the defendant. You don’t ordinarily see summary judgment motions by plaintiffs, and Riera is an example of why.”

    Read the complete post by John J. Sullivan of Cozen O’Connor.