Navigating the Camp Lejeune Water Contamination Litigation

Daniela P on October 31, 2023

Camp Lejeune Water Contamination Litigation: An Overview of Legal Progress

The litigation concerning Camp Lejeune has reached a critical juncture, with significant developments promising a more expeditious pathway to resolution for the claimants affected by the contamination at the military base. There are three pivotal components currently underway: (1) the probable initiation of bellwether trials in the first half of 2024 for claimants with designated “Track 1” diseases; (2) the introduction of a “quick-pay” settlement program by the Navy as of September 2023; and (3) the prospective establishment of a standard settlement framework for those who either opt out of or do not qualify for the quick-pay option.

For a considerable period following the enactment of the Camp Lejeune Justice Act (CLJA) by President Biden on August 10, there was a noticeable absence of progress within the judicial system. Prior to April 5, 2023, the legislation seemed stagnant, with no discernible movement in the form of court deadlines, status conferences, hearings, or indication of when the Eastern District of North Carolina’s federal judges would begin active management of the CLJA lawsuits, despite the legislation’s intent. Moreover, there was little evidence of the Department of Justice (DOJ) and Navy adequately addressing the influx of administrative claims or enhancing their staffing to cope with these demands.

Momentum Shift Following Judge Dever’s Status Conference

The stagnation was disrupted on April 5 when Judge James C. Dever III orchestrated an extensive status conference. He called for the Navy to expedite the processing of administrative claims and to initiate settlement offerings, as by that date, the Navy had approximately 20,000 claims yet to be resolved. Moreover, Judge Dever stressed the need for the litigation to progress, enabling plaintiffs to promptly have their cases tried against the Government. He emphasized the necessity of creating a comprehensive database detailing the specific contaminants at Camp Lejeune, their locations, and time frame of presence – information that would be instrumental in substantiating causation in the pending litigation.

From this point, the trajectory of the Camp Lejeune lawsuits shifted dramatically, and the judicial approach adopted by the Eastern District of North Carolina’s four federal judges now mirrors the management typical of a Multidistrict Litigation (MDL):

Key Developments and the Path Forward

The subsequent months witnessed several noteworthy events:

– On July 19, a prominent Plaintiffs’ Leadership Group was appointed, comprising notable attorneys with considerable experience in mass tort litigation.

– July 28 saw the submission of a Joint Status Report and Joint Motion, proposing a Global Case Management Order that outlined a strategic approach to the consolidated lawsuits.

– By August 18, the Plaintiffs’ Executive Committee reported on significant discussions focused on the scientific underpinnings of the case.

– The end of August marked the filing of a Joint Status Report and a draft Case Management Order.

Central to these developments was the classification of diseases for the upcoming trials into “Track 1,” which includes serious conditions such as bladder cancer and leukemia. The DOJ’s alternative proposal suggested a narrower selection and a timeline extending the bellwether trials to 2025. However, the Judges’ Order reflected an alignment with the Plaintiffs’ suggestions, setting the stage for trials to commence in 2024 – a major victory for the plaintiffs.

On September 6, the Navy announced a “Quick Pay” settlement option, presenting a tiered structure of compensation based on the severity of diagnosis and duration of exposure. While the attractiveness of these terms to the victims remains to be assessed, there is anticipation for a more comprehensive settlement framework to be developed in 2024.

Further revisions were introduced on September 15 regarding attorneys’ fees, triggering a potential confrontation between Plaintiffs’ Leadership and the DOJ/Navy over these caps.

By October 26, detailed discussions on the path to a “Global Resolution” were outlined, and contentious issues, such as the DOJ’s attorneys’ fees caps, were poised for debate.

With the events of the past 14 months culminating in a series of strategic legal advancements, claimants impacted by the Camp Lejeune water contamination stand on the cusp of potentially receiving due recompense through a structured settlement program. The shift in the judicial approach and the proactive measures of the court now reflect the gravity and urgency with which this matter is being addressed, signifying a profound change from the previous standstill. The dedication to advancing the litigation with alacrity and fairness suggests that 2024 could be a pivotal year for achieving justice for the victims of Camp Lejeune.

Understanding the Landmark AFFF/PFAS Water District Settlement

Daniela P on October 19, 2023

Groundbreaking AFFF/PFAS Settlements Redefine Water Safety Litigation

In recent legal developments, the potential settlements involving AFFF (aqueous film-forming foam) and PFAS (perfluoroalkyl and polyfluoroalkyl substances) have marked a significant turn in environmental and public health litigation. With DuPont, Chemours, and 3M reaching monumental, proposed class action settlements, the legal implications for public water systems and potential personal injury claimants are substantial.

Below are key points and a closer discussion on the legal ramifications of these developments:

Five Key Points:

The Sixth Circuit panel expressed skepticism about a lawsuit against 3M and DuPont, among others, regarding PFAS in Ohio.
The potential class could encompass as many as 11.8 million Ohioans exposed to PFAS.
The lead plaintiff, Kevin Hardwick, seeks medical monitoring and a panel to study the effects of PFAS on humans.
The case could have wide-ranging implications for other chemical-exposure lawsuits.
There concerns expressed by the court were two-fold (1) the accuracy of detecting PFAS levels and (2) the financial implications of the lawsuit for the defendants.

The lawsuit stems from the contention that 10 chemical companies are responsible for the presence of PFAS in the bloodstream of the lead plaintiff, Kevin Hardwick. He has subsequently moved to have the companies pay for a panel of scientists to investigate the effects of PFAS on the human body and for medical monitoring of class members at increased risk of illnesses, such as cancer.

The case is unique and is being closely monitored due to its potential ramifications for other PFAS and chemical-exposure lawsuits. Notably, there’s a debate about whether the lawsuit was filed with appropriate due diligence. Judge Raymond M. Kethledge expressed concerns, suggesting that the lawsuit might have been initiated before comprehensive research was done. This perspective might affect the case’s standing, given the emphasis on ensuring that legal processes are built on robust foundations.

From a financial standpoint, this case could impose a significant burden on the defendants. If the class is certified, the initial study and science panel might cost tens of millions of dollars. Further, the defendants might be liable for in excess of $10 billion.

While the case predominantly focuses on PFAS in Ohio, it paints a broader picture of the evolving legal landscape surrounding chemical exposure. In such legal endeavors, defining causality, tracing harms to specific defendants, and quantifying the impact on victims are notoriously complex issues.

As the case unfolds, its implications for claimants, the chemical industry, and the broader legal system will become clearer. It underscores the importance of due diligence, robust evidence, and the potential financial implications of mass torts. For the time being, it stands as a testament to the power of litigation in shaping industry practices and advocating for victims of chemical exposure.

Update on Tylenol Litigation: Initiation of Daubert Motions

Daniela P on September 25, 2023

Insightful Update on the Tylenol Litigation’s Daubert Hearing Proceedings

The judicial examination concerning the admissibility of general causation expert testimony in the Tylenol litigation has formally begun. On September 19, 2023, Johnson & Johnson, along with co-defendants representing retail entities, submitted a trilogy of motions intent on precluding the testimonies of the plaintiff’s general causation experts. The defense has raised questions about the scientific reliability of claims that acetaminophen consumption during pregnancy: (1) increases the risk of autism spectrum disorders, (2) elevates the risk of Attention-Deficit/Hyperactivity Disorder (ADHD), and (3) is backed by biological plausibility. Conversely, the plaintiff’s legal team has presented a series of motions aiming to exclude all expert testimonies put forth by the defense regarding general causation.

At this nascent stage of proceedings, it is challenging to predict the rulings on these motions. Opposition briefs and corresponding evidentiary materials will be filed by both parties on October 10, 2023. Subsequently, each will have an opportunity for rebuttal with reply briefs due on October 20th. A clearer understanding of the possible judicial directions will likely emerge only after the comprehensive briefing of each motion.

Further insights into the methodology of the presiding Judge Cote may be ascertained from a public telephonic status conference scheduled for early October. During this session, Judge Cote will delineate the expectations and specifics of the Daubert hearings set to commence on December 4th. This discussion may involve directives on witness examination procedures, the sequencing of testimonies, and potential limitations on the duration of oral arguments. Additionally, substantive comments from Judge Cote on the current briefs may signal her areas of interest.

It is also within the realm of possibility that Judge Cote will either request or mandate a set of questions for the counsel to address during the hearings in December, drawing parallels to the approach taken by Judge Rosenberg in the Zantac MDL Daubert proceedings of September 2022. Such an inquiry would likely underscore the issues Judge Cote deems pivotal in formulating her factual and legal conclusions.

To date, there is no record of any Daubert ruling from Judge Cote in similar product liability or mass tort cases, nor has either party cited such precedent in their filings. It is anticipated that Judge Cote will render a considered verdict on the motions, with a determination expected by mid to late January 2024.

Should the motions by the defendants be overruled, the litigation is expected to proceed to a subsequent phase, entailing: (1) the selection of bellwether plaintiffs and related discovery, (2) further Daubert motions and hearings focused on specific causation experts, and (3) the setting of bellwether trials, anticipated to be led by noted trial attorneys Mark Lanier and Mikal Watts, contingent upon the plaintiff’s causation experts prevailing against exclusion.

We will continue to provide updates as further developments arise.

Judicial Update 10.6.23: Judge Cote’s Status Conference on Daubert Hearing Procedures

In a concise telephonic status conference lasting merely 11 minutes, Judge Cote conferred with counsel regarding the logistics for the forthcoming Daubert hearings scheduled for the week of December 4th. Judge Cote immediately remarked on the uncommon nature of live expert testimonies during such hearings, indicating her preference for engaging with these testimonies only if they clarify issues arising from their written reports, depositions, or referenced scientific studies, thereby assisting her understanding.

Judge Cote assured that should she deem it necessary to solicit further explanations from specific experts during the proceedings, she will inform the parties accordingly. She emphasized efficiency in testimony, expressing her intention to conduct a thorough review of not only the briefs and reports but also the foundational studies referenced therein.

Although Judge Cote refrained from imposing oral argument constraints during the call, she signaled her willingness to hear counsel’s arguments and indicated that more concrete plans for the hearing would be forthcoming.

Upon querying the parties for their input on her preliminary views, the defendants’ counsel drew a parallel to a precedent where Judge Wolfson found live testimony beneficial after initial hesitation. Judge Cote responded by underscoring her current focus on the written briefs, indicating a readiness to request further expert testimony if necessary after the conclusion of the briefing process.

With the defense’s proposal for comprehensive witness testimony and the plaintiff’s call for a more streamlined approach, Judge Cote’s stance could be interpreted as leaning towards the plaintiffs. However, a more accurate assessment of her position will likely be available after further communication post-October 20th. Insights may also be enhanced should Judge Cote decide to present the parties with specific questions or topics to be addressed during the December hearings.

Legal Brief 10.20.23: Tylenol Case Progress

Following the submission of the final briefs on October 20th concerning the parties

’ Daubert motions, anticipation builds for further instructions from Judge Cote. Ahead of the December 4th Daubert hearing, there are several key considerations: the potential for Judge Cote to call upon specific expert witnesses, the allotment of time for each side’s oral arguments, the sequence of these arguments, and the possibility of receiving direct questions from the Judge. These forthcoming directives will offer significant insight into Judge Cote’s judicial approach and the trajectory of the hearings.

Recent Judicial Proceedings in Paraquat Multidistrict Litigation Await Decision by Judge Rosenstengl

Daniela P on September 19, 2023

Awaiting Judge Rosenstengl’s Determination on Daubert Hearings in Paraquat Litigation

The series of Daubert hearings, pivotal in the ongoing multidistrict litigation concerning Paraquat, concluded after intensive deliberations from August 21 to 24, under the adjudication of MDL Judge Nancy Rosenstengl. The proceedings, marked by vigorous debate, centered predominantly on the testimony of Dr. Michael Wells, the plaintiffs’ principal general causation expert. His appearance was at the behest of Judge Rosenstengl, indicating the weight his testimony held in the litigation.

Dr. Michael Wells’ Testimony: A Focal Point of the Daubert Hearings

Dr. Wells’ testimony involved a meta-analysis of seven epidemiological studies that examined the potential link between Paraquat exposure and Parkinson’s Disease, with his findings suggesting an odds ratio of 2.8. The defendants, Syngenta and Chevron, challenged his methodology, claiming an oversight of three larger, more recent studies that contradicted his conclusions. They used critical language, implying that Dr. Wells selectively reported data to support his position, thus questioning the reliability of his analysis.

In response, Dr. Wells, supported by plaintiffs’ counsel Eric Kennedy, contended that the newer studies were of inferior quality and methodologically distinct, thereby justifying their exclusion from his analysis. Furthermore, the defense’s citation of past instances where Dr. Wells’ expert testimony was purportedly disregarded was met with firm refutations from counsel Kennedy, who insisted these references were misrepresented.

Defense Challenges and Plaintiff Rebuttals in Paraquat Case

Throughout the hearings, Judge Rosenstengl was discerning, alluding to the Seventh Circuit’s Manpower decision which admonished lower courts against exceeding their ‘gatekeeping’ mandate on Daubert motions, reminding them of the jury’s exclusive role in determining the veracity and significance of expert testimony. Her allusions to this precedent appeared to indicate a meticulous approach in her pending decisions concerning the admissibility of Dr. Wells’ and other experts’ testimonies.

Following the conclusion of the hearings, Judge Rosenstengl requested additional post-hearing briefs from the parties, extending to 20 pages, which were filed on September 8, 2023. She acknowledged the extensive review that lay ahead, leading to the deferment of the first bellwether trial, originally scheduled for October, to an undetermined later date. This rescheduling is contingent on her potential denial of the Daubert motions seeking to exclude Dr. Wells and other expert witnesses offered by the plaintiffs, marking the third postponement of the trial.

Given the complexities of the arguments presented, the anticipation of the outcomes of the Daubert motions has become increasingly challenging. Judge Rosenstengl exhibited no clear inclination towards a decision at the hearings’ conclusion, underscoring the unpredictability of the ruling.

A definitive judgment on the Daubert motions is expected before the close of the year, a decision that will have significant implications for the direction of the litigation.

Tylenol Litigation Update: FDA’s Stance Reveals Complex Implications

Daniela P on September 11, 2023

FDA’s Response in Tylenol Autism/ADHD Litigation: An Overview

In the unfolding Tylenol litigation, the U.S. Food and Drug Administration (FDA) has provided a nuanced response to inquiries concerning the potential risks associated with acetaminophen use during pregnancy. In late April 2023, the presiding Judge Cote solicited the agency’s perspective on whether warnings about the risk of autism and Attention-Deficit/Hyperactivity Disorder (ADHD) should be explicitly stated on acetaminophen labels for pregnant women. Although the FDA’s feedback was initially due by the end of July, the deadline was extended at the request of the U.S. Government to September 15th.

Ahead of schedule, on September 8th, the U.S. Attorney for the Southern District of New York, on behalf of the FDA, submitted a letter and an accompanying report. This submission occurred 11 days before the deadline for the parties to present their initial Daubert briefs, which are intended to challenge and aim to exclude their opponents’ general causation experts.

The disclosure from the Department of Justice (DOJ) indicated that the FDA currently views the post-2015 scientific studies it has reviewed as inconclusive regarding causality. This perspective is seen as unfavorable by those who advocate for a definitive link between acetaminophen use during pregnancy and developmental disorders.

However, there is an aspect of the FDA’s position that may be perceived positively by the plaintiffs. According to the DOJ letter, the FDA has chosen not to assert a position within the ongoing litigation, aiming not to impede Judge Cote’s evaluative process of expert testimony during the Daubert hearings. Notably, the FDA has refrained from commenting on potential alterations to the current warning labels, thus abstaining from influencing the judicial procedures directly.

This development prompted Johnson & Johnson and Walmart to consider additional legal maneuvers, anticipating that Judge Cote might be persuaded to reassess her previous rulings that dismissed their preemption claims. In response to a subsequent request from Johnson & Johnson for a status conference to deliberate on the implications of the FDA’s stance, Judge Cote promptly declined, reasserting her focus on the upcoming September 19 Daubert motions.

The future implications of the FDA’s position remain to be fully understood. Defendants are expected to leverage the FDA’s findings in the Daubert motions and may seek to inform juries of the agency’s stance in future bellwether trials. Conversely, the plaintiffs’ representatives are likely to contend that unless FDA officials are subject to deposition and cross-examination, the disclosure of the FDA’s views could unfairly prejudice the jury against the plaintiffs.

Following the FDA’s response, the plaintiffs’ leadership has made public a previously submitted letter to the FDA, arguing that recent scientific studies do indeed establish a causal link. This public disclosure suggests an increased probability that subsequent filings from both parties, including the September 19 Daubert motions and the October 10 opposition briefs, may also enter the public domain rather than being filed confidentially.

While the FDA’s current position on the recent studies does not endorse causality, the agency’s non-interventionist approach to the warning label debate and the Daubert process presents a complex tableau. The litigation community now eagerly awaits the impending exchange of Daubert motions, expert reports, and briefs due for submission on September 19, 2023.