While too many of us get overdosed with clownish depictions — from doctors, hospitals, insurers, and corporations, especially Big Pharma firms — of how the civil justice system operates, it’s always worth a reminder of the tremendous fortitude ordinary folks show in pursuing malpractice and other personal injury or liability claims.
Yes, the cases, on rare occasions, can result in sizable favorable rulings for plaintiffs, as the public might be reminded by the U.S. Supreme Court’s new refusal to overturn a $2.1 billion judgment against Johnson & Johnson.
Twenty women sued J&J, asserting its iconic baby powder played a key role in their suffering ovarian cancers.
But this high-court ruling came six years after the women first sued the company, and only after a growing body of evidence implicated asbestos — which J&J was accused of knowing about and is a known carcinogen — in talc products, which the company since has pulled from the U.S. and Canadian markets.
This was a tough court battle, as the Wall Street Journal recapped it:
“The case under appeal went to trial in St. Louis in 2018. A jury found J&J liable on all of the plaintiffs’ claims, awarding about $4.7 billion to 22 women and their estates, $550 million in compensatory damages and another $4.14 billion in punitive damages. A state appeals court last year reduced the total verdict to $2.1 billion and dismissed two of the plaintiffs from the case for jurisdictional reasons. In its petition to the Supreme Court, J&J had argued the state court proceedings were unfair. It said lower courts were wrong to allow all the women to proceed in a mass trial and argued the size of the punitive damages award violated its constitutional right to due process. The company also objected to allowing out-of-state plaintiffs to be included among the women who sued, arguing their claims didn’t have sufficient links to Missouri. Lawyers for the 20 women urged the Supreme Court not to hear the case, saying the company’s appeal lacked merit and wasn’t worth the court’s attention. Six women died from ovarian cancer before the trial and three more have died from it since, the lawyers said in a court brief.”
The high court does not always explain its rulings and it denied J&J’s appeal in a brief written order.
This case is part of a talc-lawsuit onslaught against the brand that built itself on purportedly family friendly products, the Wall Street Journal reported:
“J&J booked about $4 billion in 2020 litigation expenses that were primarily related to talc legal cases and certain settlements, the company said in a securities filing in February. Investors’ concerns about the ultimate cost of resolving the litigation have weighed on J&J’s stock price. As of April 4, 28,900 plaintiffs had lawsuits pending in various U.S. courts against J&J, alleging injuries caused by the company’s talc-containing powders, according to J&J’s most recent quarterly report filed with securities regulators.”
It is unclear exactly when or how much claimants in the St. Louis case will receive in the J&J judgment.
Eight years later, battling still over hundreds of millions
But if this case did not illustrate enough how high-stakes civil lawsuits can be, Bloomberg Law reported on another legal battle occurring over the cost of an eight-year case involving the Blue Cross Blue Shield Association and, as CNBC reported, “more than 1 million individual and corporate policyholders, whose policies covered tens of millions of Americans. They alleged that the [Blues’] member companies violated the Sherman Act and other antitrust laws by, among other things, dividing up health insurance markets to avoid competing with each other.”
The lawsuit resulted in a $2.7 billion settlement.
But David Boies and Michael Hausfeld, two prominent lawyers and lead counsel in the case, “are requesting nearly $627 million in fees and another $40 million in expenses,” Bloomberg Law reported.
The news service, in its headline about “trench warfare” in the case, aptly captures how brutal civil suits can be, taking years and devouring resources in the way kids munch candy. Here are some Bloomberg statistics from the tallying by the judge and lawyers involved:
- The case consumed more than 430,000 hours of legal time
- Defendants produced more than 75 million pages that were reviewed by a team of 178 attorneys
- Settlement negotiations began in 2015 and included 158 in-person and virtual meetings with mediators and 282 telephone conferences
- Lawyers conducted more than 120 depositions (sessions to take sworn testimony)
It is not clear when the federal judge, who approved the settlement, will decide the case costs and who will get what among the attorneys. He has indicated that he thinks the attorney fee requests he has seen, thus far, are justified. Plaintiffs in this case and the J&J suit, no doubt, will be beyond anxious for the sizable and complex finances of their disputes to be sorted out.
A huge opioids case with unsatisfying outcomes
Besides waiting for legal resolutions that can take years to be arrived at, claimants also can find that huge civil suits can take turns that can leave few of the disputing parties satisfied. That unhappy outcome may be where a multibillion-dollar bankruptcy claim involving Purdue Pharmaceutical appears to be heading.
The plutocratic family that founded Purdue, the maker of the highly addictive prescription painkiller OxyContin, may be on the brink of being shielded from legal claims against their huge personal wealth, estimated at points at $13 billion or so. As National Public Radio reported of a multibillion-dollar bankruptcy settlement inching toward completion:
“[M]embers of the Sackler family, some of whom own Purdue Pharma and served on the company’s board of directors, [are] a step closer to winning immunity from future opioid lawsuits. According to legal documents filed as part of the [bankruptcy] case, that immunity would extend to dozens of family members, more than 160 financial trusts, and at least 170 companies, consultants and other entities associated with the Sacklers … In addition to contributing money [to the bankruptcy settlement] from their personal fortunes, the Sacklers have agreed to give up control of Purdue Pharma. They will, however, retain ownership of other companies, admit no wrongdoing, and will remain one of the wealthiest families in America. Two dozen states still oppose the bankruptcy deal that has been negotiated largely behind closed doors. They argue it would improperly strip them of authority to sue members of the family for alleged wrongdoing.”
Not good. In my practice, I see not only the harms that patients suffer while seeking medical services, but also the strength, patience, and courage they display when they seek justice in the civil system for wrongs committed against them and to ensure bad things get corrected, so they do not happen to others. They also must seek financial redress for what may be major damages done to them and their lives, with patients often needing significant long-time or even lifetime support and medical care.
Can satire make a point?
The individuals and organizations that inflict the injury or cause serious debilitation, however, often have at their disposal professional spin masters. They want the public to see claimants as greedy fakers, while their lawyers, like me, get caricatured as slick, profit-seekers.
One good cartoon deserves another, as the folks at the Center for Justice and Democracy at New York Law School know. Joanne Doroshow, the center’s executive director, has noted this:
“We could have written another very serious and dry insurance study showing how the insurance industry got rich from the pandemic. But honestly, this industry, which despite their Covid-profit windfall never stops complaining about juries, victims, and lawyers, has fully crossed over into comedy territory. So, we’ve crossed over too! Please enjoy out latest, Welcome to Insurance Isle! If you like pictures, it’s full of funny illustrations. If you need sources and backup, we’ve got all that too. Plenty of it. It’s fully downloadable. And here’s our blog, ThePopTort, for more.”
Please enjoy the pointed satire (including its nifty pictures, such as the one shared above). We’ve got lots of work to do to ensure that the fat cats stay in check and that products and services we rely on don’t flip on us, ripping us off or causing us huge harm that can be costly, time-consuming, and challenging to address.