Picking 6 Winners in Mass Torts Litigation

growing number of plaintiff personal injury firms have started mass torts practices, which are product liability cases against reckless pharmaceutical companies.

The phenomenon has been fueled over the last 15 years by:

• Drug and medical device companies that intentionally, criminally or negligently sell drugs with dangerous side effects that harm thousands of plaintiffs.
• The creation of 300 federal multi-district litigation dockets, which organize hundreds of cases and promote settlements with trials of bellwether cases.
• The new availability of information about mass tort cases at conferences like Mass Torts Made Perfect, where lawyers can hear lectures by lawyers who are pursuing the litigation.
• The prevalence of litigation financing companies that make it possible for law firms to take on billion-dollar drug companies with vast resources to defeat plaintiffs.
• The advent of marketing-savvy lead-generation companies that find clients for plaintiff law firms.

Six mass torts winners

Plaintiff lawyer Edward Lake of Gacovino Lake & Associates of Sayville, NY, identified six dangerous products that have produced cases that are mass tort "winners" from the plaintiff's point of view. He spoke at the recent PILMMA marketing and management conference.

1. Benicar - a high blood pressure treatment with side effects including gastrointestinal damage, chronic diarrhea, sprue-like enteropathy and celiac-like symptoms. Daiichi Sankyo is the manufacturer and an MDL has been established in New Jersey.
2. Mirena - an intrauterine birth control device. Bayer is facing lawsuits for allegedly downplaying the link between Mirena and neurological side effects, including pseudotumor cerebri, with brain tumor-like symptoms including blindness and severe, debilitating headaches.
3. Talcum Powder - Used on female genitalia, it has been linked to some 10,000 ovarian cancer cases. The defendant is Johnson & Johnson.
4. Transvagina Mesh - At one point, nearly 40 companies were producing nearly 100 vaginal mesh products. Implanted after woman has a hysterectomy, the mesh erodes through vaginal wall, causes infections and requires repeated revision surgeries. Lake said the average revision settlement is $140,000 to $180,000.
5. Xarelto - Made by Bayer and Janssen, this is diabetes drug that carries the risk of internal bleeding without a reversal agent. An MDL has been established in New Orleans.
6. Zofran - an anti-nausea drug that was approved FDA for women who were taking chemotherapy. Later it was marketed to pregnant women to relieve morning sickness and it caused birth defects. GlaxoSmithKline reached a settlement of $3 billion with the Justice Department in 2012 for fraudulent marketing. An MDL was created in Philadelphia.

Assessing potential cases

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Lake said he assesses potential cases by examining whether the injury is worse than the disease that the drug is supposed to treat -- such as a diabetes drug that causes cancer. He then analyzes how frequently the risk occurs and compares it with the risk from other drugs or medical devices.

An important step in the analysis is how many people are using the product compared with how many are injured. In one product liability example, millions of people drove cars with the defective GM ignition switch over ten years -- and the liability is clear -- however the death toll is pegged at 104 people.

Another factor is the manufacturer. "Large pharmaceutical manufacturers have deep pockets and the ability to pay settlements. But in comparison, natural supplement makes cause injuries but the companies go bankrupt or go out of business. You have to ask whether the company can sustain a major settlement," he said.

Evidence of fraud, bribery and off-label marketing also increases liability and the likelihood of a settlement. See for example DePuy Bribed Surgeons to Use Defective Hip: Lawsuit.

Co-counseling to get leads and cases

Lake encouraged lawyers to co-counsel with his law firm, Gacovino Lake, which will market a plaintiff law firm and generate mass tort leads. His firm will provide mass tort commercials which lawyers add to rotation of TV commercials for three months.

The firm fields the incoming calls so that a law firm doesn't have to create a mass tort marketing program. "We handle the potential clients' inquiry, screen for current potential pharmaceutical and medical device claims and retain the case using your retainer agreement," he said.

This allows litigators to focus their energy on building the case. "Law firms are either good at litigation or good at marketing to get cases," he said.