(Reuters) – Here are some events of interest to the Products Liability community this week. All times are local unless otherwise noted.
Monday, Sept. 27
8 a.m. – The U.S. Supreme Court will meet privately for the “long conference,” its first collective review of certiorari petitions since July 1. More than 1,200 petitions have been distributed, including two involving product-liability issues and two with clear repercussions for the field:
– Bayer HealthCare Pharmaceuticals seeks review of a 9th U.S. Circuit Court of Appeals ruling that sent lawsuits over alleged injuries from its MRI contrast agent, Magnevist, back to state court, rejecting Bayer’s claims of federal preemption and federal-officer immunity.
The case is Bayer HealthCare Pharmaceuticals v. Ulleseit, No. 20-1144.
– A pharmaceutical company and two trade associations hope to renew their fight over New York’s Opioid Stewardship Act, which created a $600 million surcharge on opioid manufacturers and distributors to fund efforts to fight opioid addiction. A federal judge found the OSA unconstitutional, but the 2nd U.S. Circuit Court of Appeals overturned that ruling last year, saying the case cannot be brought in federal court.
The case is Healthcare Distribution Alliance et al. v. Letitia James, No. 20-1611.
– In a trade-secrets case, Epic Systems has asked the court to take up a $140 million dispute over the allowable ratio of punitive to compensatory damages. Epic was awarded $280 million in punitive damages under a Wisconsin law that authorizes a 2:1 ratio, but the 7th U.S. Circuit Court of Appeals ruled last year that the U.S. Constitution limits the ratio to 1:1.
The case is Epic Systems v. Tata Consultancy Services, No. 20-1426.
– Class-action objector Rachael Threatt wants the U.S. Supreme Court to resolve a fracture among the circuits as to the proper role of the lodestar in determining the reasonableness of attorneys’ fees in class-action cases. A split panel of the 9th U.S. Circuit of Appeals last year said judges are free to ignore the lodestar entirely. The majority affirmed a $14.5 million award as a reasonable share of the $66 million settlement in Farrell v. Bank of America, an overdraft-fee case, even though the lodestar was just $1.43 million.
The case is Threatt v. Farrell, No. 20-1349.
9:15 a.m. (ET) – Dr. Patrizia Cavazzoni, director of the U.S. Food and Drug Administration’s Center for Drug Evaluation and Research opens the 30th annual PDA/FDA Joint Regulatory Conference – the flagship event of the Parenteral Drug Association, with three days of online sessions on manufacturing, quality, and supply-chain issues for injectable and implantable drugs. The conference also includes presentations by Dr. Peter Marks, director of the FDA’s Center for Biologics Evaluation and Research; Dr. Steven Solomon, director of the Center for Veterinary Medicine; and Associate Commissioner for Regulatory Affairs Judith McMeekin. For the full agenda, go to https://www.pda.org/global-event-calendar/event-detail/pda-fda-joint-regulatory-conference
2:30 p.m. – After a postponement due to Hurricane Ida, the 5th U.S. Circuit Court of Appeals will consider an appeal by three plaintiffs in the multidistrict litigation over Chinese drywall who say they were deprived of most of their recovery in a class action settlement because the plaintiffs’ steering committee in the case mistakenly classified them as claimants against the wrong manufacturer.
The case is Frego et al v. Settlement Class Counsel, 5th U.S. Circuit Court of Appeals, No. 20-30596. For appellants: Ed Rowan of Taylor Martino. For class counsel: Stephen Herman of Herman Herman & Katz.
Thursday, Sept. 30
11 a.m. (ET) – The Judicial Panel on Multidistrict Litigation will hear arguments virtually on motions to create two new product-liability MDLs: one for litigation over Philips’ CPAP machines that can produce harmful gases, the other for cases involving varieties of Johnson & Johnson’s Neutrogena sunscreen sprays that have tested positive for low levels of benzene. Each company voluntarily recalled the products last summer, and each supports the creation of an MDL, although they suggest alternatives to the movants’ preferred jurisdictions.
The cases are In Re: Philips Recalled CPAP, Bi−Level Pap, and Mechanical Ventilator Products Liability Litigation, MDL No. 3014; and In Re: Johnson & Johnson Aerosol Sunscreen Marketing, Sales Practices and Products Liability Litigation, MDL No. 3015. For Philips: John Lavelle Jr. of Morgan, Lewis & Bockius.
For Movant Thomas Starner: Sandra Duggan of Levin Sedran & Berman. For J&J: Steven Zalesin of Patterson Belknap Webb & Tyler. For movant Melissa Jimenez: Jonathan Shub of Shub Law Firm.
Know of an event that could be included in Week Ahead in Products Liability? Contact Brendan Pierson at [email protected]
