Top 10 Civil Justice Stories for the Year 2017: Part One

Civil justice cases grabbed huge headlines in 2017, proving the value of the civil justice system in improving United States health and safety. The largest product recall in automotive history was issued this year as a result of civil justice lawsuits over dangerous Takata airbags, there were multiple dangerous product or medical device jury verdicts returned against companies like Johnson & Johnson for damages in excess of $100 million, and social media outrage fueled a sizable confidential injury settlement for a passenger forcibly removed from a flight.

As in years past attorney-author Rick Shapiro has researched the various news stories, jury verdicts, and legislative actions to compile his top-10 list of civil justice stories for 2017.

Note that this is part 1 of two-part series; part 2 can be found here.

No. 10 – Congress Votes to Lift Restrictions, and Allow Mandatory Arbitration Clauses

Why It’s Big
This qualifies as a civil injustice story. According to the Seventh Amendment to the U.S. Constitution, “in suits at common law…the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.” Mandatory arbitration is an end run around the Seventh Amendment and is a means of weakening access to the civil justice system, and trial by jury, if a consumer seeks to hold a corporation accountable for reckless or nefarious conduct.  Companies desire arbitration because results prove that arbitration tends to tilt the scales towards the company and away from the consumer.

What Did We Learn?
The GOP-controlled Senate voted to eliminate a landmark financial regulation that restricts banks and credit card companies from imposing written mandatory arbitration agreements on their customers as a means to resolve disputes.  These arbitration clauses are buried in the pages of fine print and there is no consumer bargaining power of opting out of arbitration. The Senate had to bring in Vice President Mike Pence to be the tie-breaking vote. Business groups including the U.S. Chamber of Commerce, the American Bankers Association and the Financial Services Roundtable all opposed the regulation (which prohibited such mandatory arbitration clauses) and lobbied Congress to eliminate it legislatively.  The big companies won, meaning they got back the right to require mandatory arbitration agreements buried in the fine print.  “The vice president only shows up [in the Senate] when the rich and the powerful need him,” Sen. Sherrod Brown (D-Ohio) said.

Dig Deeper
Pence Breaks Tie in Senate Vote to Ax Arbitration Rule (Politico)

No. 9 – The Shocking Link between Asbestos and Talcum Powders  

Why It’s Big
When lawsuits are filed against large corporations, it is quite common to discover shocking details about the internal practices and studies conducted on popular consumer products during the pre-trial discovery process. The talcum powder ovarian cancer litigation against Johnson & Johnson is a prime example. During a deposition of a chemist who took part in research for J & J, it was revealed that many J & J talc baby powder products he tested were adulterated with asbestos.  Despite this, J & J contended its baby powder was safe as the driven snow, and still contends this to this day.  Could mothers who used J & J baby powder on their babies have unwittingly caused one of the most dangerous carcinogens to be inhaled by their babies and themselves for decades?

What Did We Learn?
In December 2016, a chemist described having done testing in the 1970’s of various Johnson & Johnson baby powder products, which confirmed asbestos had adulterated talc baby powder in about 50 percent of the powders he tested.  This was at a time that the FDA was considering regulating cosmetic talc products, but J & J and other consumer products companies selling cosmetic powders with talc assured the FDA that it had refined its mining methods to eliminate all asbestos, and, in the end, the FDA never regulated the cosmetic talc powder products for asbestos.  In other words, consumers since the 70s, buying talcum baby powder products, had to trust these companies not to be selling a product adulterated by asbestos.  In current suits around the U.S., attorneys claim that baby powder is a cause of ovarian cancers, and the bombshell evidence of asbestos adulteration will be explored in upcoming jury trials.

Dig Deeper
Is Asbestos in Talcum Baby Powder the ‘Crime of the Century’? (The Legal Examiner)

Johnson & Johnson Alerted to Risk of Asbestos in Talc in ’70s, Files Show (Chicago Tribune)

No. 8 – Passenger Assaulted by Airline Officers Settles with United

Why It’s Big
This incident highlighted the tremendous power of social media in today’s society. The video of Dr. David Dao being dragged from his seat and off a United Airlines plane after refusing to give up his seat to an airline crew member instantly went viral and made national headlines. As a result, United took swift action by offering a sizable (confidential) settlement and publicly apologizing for the conduct of their employees and their practices.

What Did We Learn?
First, we learned the power of viral video on social media.  Ultimately, months later Dao reached an “amicable settlement” with the airline for the personal injuries he received as result of the April 9 incident, which his attorney said included two lost teeth, a broken nose and a “significant” concussion. The amount of the settlement would remain undisclosed, according to the terms of the settlement, Dao’s attorney said. Rumors have swirled about the total amount of the settlement. There have been tweets alleging Dr. Dao obtained millions from United, but these claims are completely unsubstantiated.

Dig Deeper
David Dao and United Airlines Reach ‘Amicable’ Settlement After Viral Video Incident (NBC News)

In China, rumors are flying about David Dao’s alleged $140 million settlement from United Airlines (Washington Post)

No. 7 – Nearly 1.5 Million Additional Fake Accounts “Discovered” by Wells Fargo

Why It’s Big
The level of corporate malfeasance and deception committed by Wells Fargo executives is staggering. This disturbing story of fake accounts being created and then assessed fees appears to be getting worse.

What Did We Learn?
Wells Fargo “uncovered” an additional 1.4 million more fake accounts after digging deeper into the bank’s broken sales culture. That means there were approximately 3.5 million potentially fake bank and credit card accounts that were created and charged fees in an effort to gin up profits for this financial behemoth. Wells Fargo has agreed to pay a total of $6.1 million to refund customers for unauthorized bank and credit card accounts, up from $3.3 million previously. The bank also promised to pay $910,000 to refund customers for the 528,000 potentially improper online bill pay enrollments. The review of online bill pay was required by the September 2016 settlement. Additionally, Wells Fargo has agreed to a $142 million national class action settlement to cover fake accounts that were opened going back to 2002. That settlement received preliminary approval from a federal judge in July 2017.  Oh, have you seen the “feel good” T.V. commercials about Wells Fargo?  They seem like a disconnect from the devious honchos that dreamed up the unrequested, fake money-making accounts.  Oh, and there’s more:  another suit claims Wells Fargo targeted mom and pop size businesses with massive early termination fees if the business tried to get out of the credit card merchant services it supplied.

Dig Deeper
Wells Fargo Uncovers up to 1.4 Million More Fake Accounts (CNN Money)

Wells Fargo Accused of Ripping Off Mom-and-Pop Shops (CNN Money)

No. 6 – Bayer AG and J & J Ordered to Pay $28 Million to Plaintiffs in Bellwether Xarelto Case

Why It’s Big
This bellwether trial marks the first plaintiff’s victory in the Xarelto litigation.

What Did We Learn?
A jury in Philadelphia state court found in favor of the plaintiffs and ordered Bayer AG and Johnson & Johnson to pay $27.8 million to a couple over the failure to warn of significant internal bleeding risks from the blood thinner Xarelto.  While Xarelto has some distinct advantages over other blood thinners, it also carries a highly dangerous side effect in some patients: a potentially fatal uncontrolled bleeding risk.  “It’s a clinically significant adverse event, it’s a demographic characteristic and it should be on the label,” said Dr. David Kessler, who served as FDA commissioner under the first Bush and the Clinton administrations in his testimony at the trial. The jury slapped the companies, which jointly developed the drug, with $1.8 million in compensatory and $26 million in punitive damages.

Dig Deeper
Jury Orders Bayer, J&J to Pay $28 Million in Xarelto Lawsuit (Reuters)

Remember that we’ll continue this list on Friday 12/29 — as well as include a backlink here once posted!