Mass tort is a notoriously lucrative legal market, but it’s also hard to break into for many firms. That’s why Bayer and Johnson & Johnson’s recent Xarelto settlement agreement is great news for anyone exploring this practice area. With $775 million in guaranteed payouts on the table, there’s little risk involved in testing this one out. But could this agreement snowball into additional tort payouts all year long? We certainly think so — and we’ll explain why below.
FACTORS THAT LED TO SURPRISE XARELTO SETTLEMENT OFFER
Xarelto manufacturers Bayer and J&J agreed to split the payments in order to settle over 25,600 pending lawsuits. While both companies refused to admit any liability, the offer caught some legal experts off-guard. Despite one jury awarding plaintiff Lynn Hartman $28 million in December 2017, they successfully reversed that verdict on appeal. In fact, Bayer and J&J prevailed in all six Xarelto bellwether trial cases heard in court. So what’s behind the sudden itch to settle?
Company spokespeople said costly litigation, bad PR and patient confusion drove the decision. Patients who saw lawsuit commercials on TV grew concerned and stopped taking Xarelto, they explained. This led some Xarelto users to suffer strokes and even resulted in several deaths. In addition, both companies can easily afford their settlement payments. With Xarelto’s $448/month list price, the anticoagulant earned J&J $2.48 billion in U.S. sales revenue last year. And Bayer, which markets the drug internationally, earned $4.11 billion from global sales in 2018. In fact, Xarelto’s sales are so strong that J&J’s now launching TV ads showing its list price to consumers.
But both companies still face more than 30,000 pending mass tort lawsuits. And in the long run, those cases may prove far costlier to their bottom lines.
BAYER’S BIGGEST LITIGATION CONCERN FOR 2019: ROUNDUP
In March 2018, German conglomerate Bayer secured EU approval to purchase U.S.-based Monsanto for $62.5 billion. One thing making this merger so attractive: Extensive U.S. market penetration from Monsanto’s massively popular Roundup Weed Killer. Today, farmers spray Roundup’s active ingredient, glyphosate, on 90% of American-grown crops. But less than six months after buying Monsanto, Bayer lost their first Roundup case in court. In August 2018, a California jury ruled that Roundup caused former groundskeeper Dewayne Johnson to develop fatal non-Hodgkin’s lymphoma. While a judge reduced the original $289 million Roundup payout to $78 million, the verdict against Bayer still stands.
One year later, Bayer lost another Roundup cancer case in San Francisco’s U.S. district court. Plaintiff Edwin Hardeman alleged that 26 years of regular Roundup use led him to develop NHL in 2015. Jurors agreed, awarding Hardeman compensatory as well as punitive damages totaling $80.27 million on March 27, 2019. And with over 11,000 Roundup lawsuits still pending, Bayer’s day in court is far from over. If this second verdict gets upheld, Roundup could become the next massive settlement agreement Bayer offers to pay in 2019.
J&J FACES MOUNTING TALCUM POWDER LAWSUITS AFTER ASBESTOS SCANDAL
Johnson’s Baby Powder has been a staple in U.S. nurseries for more than a century. However, thousands sued J&J over talcum powder’s link to ovarian cancer in recent years. And some plaintiffs proved successful, winning multimillion-dollar settlements. But the biggest blow for J&J came in 2018, when 22 ovarian cancer plaintiffs won nearly $5 billion in damages.
What made St. Louis Circuit Court Judge Rex Burlison uphold this historic verdict in December 2018? In fact, asbestos made all the difference in proving these talcum powder-cancer cases. These 22 plaintiffs submitted internal company documents into evidence showing J&J knew its products contained asbestos. For this reason, it’s the first case linking asbestos contamination to ovarian cancer. Since then, at least three more plaintiffs with mesothelioma or ovarian cancer won damages in their talc lawsuits against J&J.
GET SUPERIOR QUALITY XARELTO, ROUNDUP & TALCUM POWDER LEADS
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