Top 7 Mass Torts to Watch in 2023

2022 was an eventful year for mass torts and 2023 is proving to be no different. In our 2022 recap piece, we covered major moments in the year’s five top actions. Here, you will find a summary of the seven additional top mass torts to watch in 2023. Read on to learn more about these actions, including current case status and prime opportunities for subject matter experts for each.

Camp Lejeune Water Contamination

For over 30 years, service members, their families, and other civilians living and working at Camp Lejeune were potentially exposed to contaminated drinking water. Camp Lejeune is the largest Marine Corps base on the East Coast, located in Jacksonville, North Carolina. Between 1953 and 1987, Marines and civilians drank, cooked with, and bathed in water found to be contaminated. Toxic chemicals, including four specific volatile organic compounds (VOCs), were identified in the water.

All four VOCs have been linked to serious, and sometimes deadly, illnesses such as various cancers, leukemia, and Parkinson’s disease.

Findings

The Agency for Toxic Substances and Disease Registry, which is part of the Centers for Disease Control, linked the contamination with industrial spills, leaking underground storage tanks, and most prominently, an off-base dry cleaning company. The main contaminants in the Camp Lejeune water supply were trichloroethylene (TCE), perchloroethylene (PCE), benzene, and vinyl chloride. Exposure to just one of these chemicals over time is enough to cause damage to the human body. For instance, TCE is carcinogenic to humans through all routes of exposure. It can also cause non-cancerous damage in the central nervous system, kidney, liver, immune system, male reproductive system, and to a developing embryo or fetus. These findings are supported by evidence spanning several decades.

Camp Lejeune Justice Act

To aid victims of long-term use of the base’s contaminated water, the federal government passed the Promise to Address Comprehensive Toxics Act (PACT Act). This became federal law once President Biden signed off on the Camp Lejeune Justice Act (CLJA) on August 10, 2022. The act grants the U.S. District Court of North Carolina exclusive jurisdiction to hear these cases.

A potential plaintiff has two years after the CLJA’s enactment to file a suit. Prior to filing, however, they must first submit an administrative claim with the Department of the Navy. The claim must set forth certain key facts such as the dates of exposure and medical diagnosis of any health condition, medical treatment information, and any other financial or mental impact suffered by the plaintiff. Damages awarded to a plaintiff will be offset by any previously paid disability claims.

Litigation Status

In August 2022, legislation granted the right to pursue legal action against the federal government for injuries suffered as a result of the contamination. This legislation not only allowed for new cases against the federal government but granted a second chance to those previously denied due to statutes of limitations or on federal immunity grounds. Per the Congressional Budget Office, total payouts were estimated to reach at least $6.1 billion. Claim estimates were originally expected to hit 20,000. That has proven to be a severe underestimation. To date, JAG has reported over 15,000 claims since the legislation was passed five months ago, with 5,000 in just the first month. Experts are now estimating numbers closer to 500,000 claims. With a filing deadline of August 2024, it’s anyone’s guess what that final count will look like.

Expert Witness Opportunities

Camp Lejeune litigation will provide ample opportunities for experts in toxicology and related medical fields. These experts will be able to opine on the broad scope of water contamination and the risks and complications of the same. Toxicologists are needed to opine on current literature and personal experiences treating sequelae of contamination. Physicians will also be necessary for reviewing and interpreting medical records and investigating questions of causation. Claims can be denied for lack of proper evidence to prove a qualifying medical condition, so medical expert testimony is key to a successful claim. For more information click here to watch Expert Institute’s Dr. Wendy Ketner and Ricky Siddiqui, MPH along with John Romano of Romano Law Group discuss the growing litigation surrounding Camp Lejeune.

Related Research Guides & Resources

• RESEARCH: Camp Lejeune Water Contamination: Medical Conditions Associated with Exposure
• READ: Contaminated Water at Marine Corps Base Camp Lejeune Causes Health Issues
• READ: Navigating Camp Lejeune Litigation: 5 Things Attorneys Need to Know
• WATCH: [Webinar] Camp Lejeune: Beyond Presumptive Diagnoses

Hair Straightening Products

Chemicals used in hair relaxers straighten hair by altering the structure of the protein components of the hair shaft. These chemicals are found in a range of consumer hair straightening products including shampoos, conditioners, sprays, gels, and moisturizers. Data from most but not all studies show an association between relaxer chemicals and adverse health effects such as an increased risk of uterine fibroids.

Findings

Many chemicals, both natural and man-made, may mimic or interfere with the body’s hormones. These chemicals are linked with developmental, reproductive, brain, immune, and other problems. Because these chemicals impact the functions of the body’s endocrine system, they are commonly known as Endocrine Disrupting Chemicals (EDCs).

Clinical evidence strongly suggests the association between prolonged use of EDC-containing hair-relaxing products and the development of fibroids, endometriosis, or uterine cancer. This is also supported by data harvested from studies exploring the chemicals’ effects on both humans and animals. However, other risk factors play a role, making it difficult to confirm the causal effect of hair-relaxing products in any specific case.

The underlying cause of fibroids appears to be estrogen dominance or an increased circulating estrogen-to-progesterone ratio. This leads to the reprogramming of myometrial stem cells and their subsequent transformation into tumor-initiating stem cells. Such a process has been linked to exposure to EDCs. The same exposure may also increase the risk of endometriosis and uterine cancer, both of which are estrogen-dependent.

Litigation Status

Litigation was kicked off by a Missouri case in the fall of 2022, where the plaintiff alleged L’Oréal’s hair straightening products are linked to her uterine cancer. The suit further claimed that the beauty company knew about the link between EDCs in their products and cancer since 2015. Upon filing in Illinois, the case sought certification as a class action on behalf of women who developed uterine cancer after relying on various L’Oréal products.

In the past four months, nearly 60 cases have been filed across the country against L’Oréal and various other companies. On January 26, plaintiffs urged the Judicial Panel on Multidistrict Litigation to consolidate their lawsuits. Consolidation would be overseen by one federal judge. This aids in streamlining the discovery and pretrial process across all cases.

On February 6, the panel announced its agreement with the plaintiffs. The lawsuits will be consolidated in Chicago federal court before U.S. District Judge Mary Rowland. Further details and upcoming deadlines will be announced soon.

Expert Witness Opportunities

Litigation related to the negative health effects of hair straightening products is yet another avenue for toxicologists to flex their expert witness muscle. They would be able to opine on the potential risks and complications of EDC exposure, of which they are aware from the literature and from personal experience managing patients with this condition.

Gynecology is also a specialty in which vital subject-matter experts can be found. An expert in gynecology would be able to opine on the etiology, risk factors, and management of uterine fibroids. Whether the knowledge comes from directly treating patients or studying and interpreting the data received from clinics, gynecologists can expect demand for their services to increase as these cases increase.

Related Research Guides & Resources

• READ: L’Oreal Hair Straightening Product Lawsuit May Be First of Many

Access the latest research on the chemicals found in hair straightening products, consult our team of physicians to pinpoint causation and liability, and connect with world-class experts to understand the scope of potential damages here.

Baby Formula Linked to Necrotizing Enterocolitis Infections

Cow’s milk-based infant formula, a staple of the diet of newborns from birth to age six months, has received recent scrutiny due to the development of gastrointestinal conditions such as necrotizing enterocolitis (NEC). Cases appear among preterm newborns who are provided with this form of nutrition. NEC is a serious bacterial infection that can develop in the gastrointestinal system of newborn infants.

Findings

Although the precise origins of NEC are poorly understood, the relationship between this condition and cows’ milk formula has been observed for at least 40 years; de Peyer et al.’s 1978 case report on this topic points to how “cow’s milk protein played a major role in the pathogenesis of necrotizing enterocolitis.”

While theories abound, absolutely clear mechanisms behind how cow’s milk might cause NEC has yet to be explained. Regardless, such a correlation is well-established.

Studies have linked NEC to the use of certain infant formulas derived from cow milk. In a 1990 study, scientists found that in exclusively formula-fed babies, NEC was 6-10 times more common than in those fed breast milk alone and three times more common in those who received formula plus breast milk.

In 2011, Johns Hopkins Medical Institution found that extremely premature babies fed human donor milk were less likely to develop NEC than those fed a standard premature infant formula derived from cow’s milk. Of course, it has yet to be determined whether cow’s milk-derived formula increases the risk of NEC or if a preemie already has a significant risk for NEC and human donor milk can combat that risk.

Litigation Status

Regardless, parents and their preemies who were fed cow’s milk products and subsequently developed NEC started filing product liability lawsuits against formula manufacturers for negligent failure to warn despite knowledge of the risks.

In April 2022, the MDL Panel certified the Formula NEC multidistrict litigation (In re: Abbott Laboratories, et al., Preterm Infant Nutrition Prod. Liab. Lit.– MDL No. 3026) in the Northern District of Illinois under Judge Rebecca Pallmeyer. To date, there is a total of 97 NEC formula lawsuits pending in the MDL, representing the total plaintiff population. There is no claim registry in this MDL; therefore, this litigation will be small relative to other mass torts. This also means that defendants will be better able to make settlement payouts without cutting profitability.

Meanwhile, the American Academy of Pediatrics (AAP) recently issued new guidelines that recommend avoiding infant formula entirely for newborns, urging hospitals to stop promoting infant formula and focus on breastfeeding. It’s not yet clear whether these changes have inflicted a large enough blow to the MDL defendants to change their ways.

One of the potentially culpable manufacturers is also facing legal woes regarding the cleanliness of its facilities. Last month, the Department of Justice opened a criminal investigation into an Abbott Laboratories plant in Michigan over unsanitary workplace conditions in its production of baby formula. This will only add fuel to the fire of formula safety concerns.

Expert Witness Opportunities

As litigation develops, many specialties will be in demand to provide expert testimony. Areas of expertise range from practicing medical providers and hospital administration to scientists studying neonatology and epidemiology. FDA drug safety experts would have a unique knowledge of acceptable medical practices and could interpret what is standard medical knowledge and procedure. Pediatric surgeons would also have an important story to tell as they are the ones in direct contact with affected intestinal systems and related medical histories.

Related Research Guides & Resources

• RESEARCH: Necrotizing Enterocolitis: Infant Formula Contamination Concerns
• READ: Lawsuits Allege Link Between Similac Baby Formula and Serious Gastrointestinal Infections

PFAS Contamination

Per- and polyfluoroalkyl substances (PFAS) are a class of compounds that are the current subject of some scrutiny due to having “been linked to many harmful health effects, including cancer,” per a systemic evidence review conducted by Pelch et al. This study also ranks PFAS as a “serious global health threat.” While several hundred chemicals are contained in this class, there are eight in particular which have been associated with a myriad of health risks. These molecules are made up of a chain link of carbon and fluorine atoms. Due to the strength of the chemical bonds, the molecule does not degrade readily in the environment. Owing to that fact, scientists are unable to estimate an environmental half-life for PFAS. Of note, these chemicals are no longer manufactured in the United States but that hasn’t put an end to their negative impacts on human health and the environment.

Findings

PFAS chemicals are used in multiple industries, such as in fire-fighting applications, cosmetics, greases, lubricants, paints, polishes, and adhesives. PFAS persists in the environment and has been identified in bodies of water and in a variety of land and water animals. Humans can be exposed to PFAS either by working with it, using a product that contains it, or via contaminated water sources.

Aqueous film-forming foams (AFFFs) are a mixture of chemicals that are used to extinguish fires, especially when highly flammable liquids are involved. PFAS are cited as the main chemicals in these substances. These so-called “forever chemicals” are fluorinated and hydrogenated surfactants that are stable in high temperatures, non-flammable, and non-biodegradable. Due to these properties, these types of chemicals were widely used in many industrial and commercial applications.

Given the widespread use of PFAS substances in AFFFs, the potential exposure to this carcinogen by firefighters has received much research scrutiny. A publication in the Journal of Occupational and Environmental Medicine determined that more than 80% of fire departments surveyed throughout the state of Florida use AFFFs and are largely unaware of their carcinogenic effects.

Litigation Status

The MDL is made up of thousands of cases brought by individual plaintiffs, state governments, and local municipalities. Firefighters are one such group of plaintiffs. Our first responders in red come into contact with PFAS substances regularly through some of the most important products on the job: flame-retardant firefighting gear treated with PFAS and firefighting foam. These suits allege that firefighters also have significant levels of PFAS in their bloodstream. In turn, defendants deny wrongdoing and maintain that their products are safe and meet or exceeded the applicable industry standards, and enable firefighters to do their jobs safely and effectively.

In September 2022, the U.S. District Court for the District of South Carolina denied the defendant government contractors’ motion for summary judgment. In their decision, the court held that as manufacturers of AFFFs and the PFAS involved in the process, the defendants “had significantly greater knowledge than the government about the properties and risks associated with their products and knowingly withheld highly material information from the government.”

The main question arising in these suits, therefore, is whether or not exposure to PFAS by way of their equipment resulted in the elevated PFAS in their blood and whether those levels in turn played a causal role in the ailments firefighters are facing. The MDL judge stated that a bellwether trial for its chosen test case is anticipated to be set for April of this year with preliminary discovery to commence in March.

Expert Witness Opportunities

A key factor in the PFAS litigation would be toxicologists. An expert in toxicology would be able to opine on the causal link and sequelae of PFAS exposure in humans, as well as the risks and complications of which they are aware from the literature and from personal experience. The precise connection between PFAS and the various harms alleged in these actions isn’t clear. As such, a collection of other experts could also prove vital. Such specialties could include city, product, and industrial engineering; public health; immunology; and endocrinology. Opportunities for expert witnesses are endless here as their testimony will be crucial in determining exactly how PFAS chemicals find their way into the bodies of those alleging harm, what risks were known at what time, and what industry standards exist in ensuring known risks are alleviated or altogether avoided.

Related Research Guides & Resources

• RESEARCH: Aqueous Film-Forming Foams (AFFF) and Cancer: Causation Between AFFF & Cancer
• READ: Massachusetts Firefighters Sue Over Exposure to PFAS
• READ: Manufacturers Face Uphill Battle in PFAS Litigation

Exactech Product Liability Cases

Arthroplasty has become one of the most performed and successful surgeries in recent times. The frequency with which this procedure is performed has steadily increased over time, as has the variety of manufactured prosthetic products used. These products serve a specific function, designed with the intention to work synergistically to replace the intended joint (hip, knee, ankle) successfully and for a long duration, complication-free. Several issues can arise from faulty products implanted in patients which may manifest on the scale of months to years post-surgery. Highly cross-linked polyethylene was developed to address the problem of wear and osteolysis associated with metal-on-conventional ultra-high molecular weight polyethylene (UHMWPE) bearing surfaces.

Total Knee Replacement (TKR) consists of resection of the diseased articular surfaces of the knee, followed by resurfacing with metal and polyethylene prosthetic components. Generally, TKR is performed for the destruction of joint cartilage either from osteoarthritis (degeneration of joint cartilage and the underlying bone), rheumatoid arthritis/inflammatory arthritis (inflammation in the joints with painful deformity), post-traumatic degenerative joint disease, or osteonecrosis/joint collapse (death of bone tissue due to a lack of blood supply) with cartilage destruction.

A standard total knee replacement has four parts: 1. The femoral component (this is the metal piece that attaches to the thigh bone, also known as the “femur”); 2. The tibial tray (this is the metal piece that fits into the shin bone, also known as “tibia”); 3. The patellar component (this is the piece of plastic that fits into the kneecap, also known as the patella); 4. The tibial polyethylene (plastic) insert (this is the plastic that fits between the femoral component and tibial component and acts as the new cushion or cartilage for the replaced knee joint).

Findings

Exactech alleges that the premature degradation of the polyethylene components in its knee replacement systems is not the proximate cause to such issues. Instead, it is the inadequate packaging, non-conforming packaging lacking a secondary barrier that confers additional resistance. Exactech believes that this packaging may enable increased oxygen penetration to the system and that over time “oxidation can severely degrade the mechanical properties of conventional UHMWPE, which, in conjunction with other surgical factors, can lead to both accelerated wear debris production and bone loss, and/or component fatigue cracking/fracture, all leading to corrective revision surgery.”

Regardless, Exactech Ultra-High Molecular Weight Polyethylene (UHMWPE) Knee Polyethylene components have shown premature wear and potential concerns, reaching enough reported cases and conditions to grant a recall and investigation by the FDA.

Litigation Status

Investigations by the FDA remain underway and extensive litigation can be expected to commence shortly. While there have been individual suits ongoing since 2017, no class action lawsuit has yet to be organized. The proximate cause will certainly be the main issue in these cases, making this product liability issue one to watch.

Expert Witness Opportunities

Experts in biomedical engineering are the key specialists for this type of litigation. Biomedical engineers would be able to opine on how the implants are designed. They would also be able to offer the extent to which the potential failure points were known (or unknown) and what kind of harm they could bring patients in the long term.

Related Research Guides & Resources

• RESEARCH: Exactech Prosthesis: Hip, Ankle, Knee
• READ: Exactech Faces Product Liability Claims Concerning Knee Replacement Recall

Asbestos

Asbestos is a mineral group that occurs naturally as fiber bundles. These fibers can be found in soil and rocks all around the planet. They are mostly composed of silicon and oxygen, but other elements are present. Asbestos is classified into two types: Chrysotile and amphibole. Both of which have been linked with cancer. In fact, the American Cancer Society goes as far as to say that “there is no ‘safe’ type of asbestos in terms of lung cancer risk.”

Because asbestos fibers are robust, resistant to heat and many chemicals, and do not carry electricity, they can be beneficial. As a result, asbestos has been utilized as an insulator since antiquity. Asbestos has been used to insulate factories, schools, homes, and ships. It has also been used to manufacture vehicle brake and clutch parts, roofing shingles, ceiling and floor tiles, cement, textiles, and hundreds of other items since the industrial revolution.

Findings

Studies have emphatically found that all forms of asbestos can increase the risk of pleural plaques and malignancy, including chrysotile asbestos. While there is debate over the role of chrysolite asbestos in the development of pleural plaques and malignancy, the opposition is mainly composed of producers of products that still allow the export of asbestos-containing products. Regardless, there is certainly enough evidence to support litigation in various suits surrounding the use of asbestos. For instance, asbestos exposure accounts for up to 80% of the known cases of mesothelioma, a rare form of cancer that attacks the smooth lining of the chest, lungs, heart, and abdomen.

Litigation Status

The majority of asbestos manufacturers have long gone bankrupt but not before courts forced them to set up over $30 billion in trust funds to compensate those who developed mesothelioma from their products. Although this began in the 1980s, litigation is still ongoing with funds still available.

More recently, however, cosmetic talc, often linked to asbestos fibers, has been the new asbestos buzzword. According to filings with the U.S. Securities and Exchange Commission, Colgate-Palmolive faces over 170 claims that its products are contaminated with asbestos. It’s extremely likely that asbestos contamination claims around the use of cosmetic talc will be a continuously growing area of litigation.

Expert Witness Opportunities

Medical specialists once again find their way to the top of opportunities for expert testimony in this litigation, namely medical toxicologists, oncologists, and pulmonologists. An expert in medical toxicology would be able to opine on the broad scope of indications for testing for asbestos exposure, as well as the risks and complications of which they are aware from the literature and from personal experience in treating patients with work-related illnesses.

Similarly, an expert in oncology would be able to opine on the broad scope of indications for the treatment of mesotheliomas and other lung cancers, as well as the risks and complications of which they are aware from the literature and from personal experience in treating cancer patients. Finally, an expert in pulmonology would be able to opine on the broad scope of indications for evaluating pleural plaques, as well as the risks and complications of which they are aware from the literature and from personal experience in treating patients with pulmonary disease.

Related Research Guides & Resources

• READ: Johnson & Johnson Employs Bankruptcy Strategy to Cap Litigation Payouts
• READ: Cosmetic Talc Products & Asbestos Contamination: A New Angle of Litigation
• READ: In Daubert Hearings, Johnson & Johnson Expert Testifies There is No Link Between Talc and Ovarian Cancer
• READ: Supreme Court Denies Johnson & Johnson’s Appeal of $2.1 Billion Verdict
• READ: J&J’s Own Expert Working for FDA Found Asbestos in Baby Powder

Hernia Mesh

A hernia is a clinical syndrome in which part of an internal organ or part of the body becomes displaced and extends through an opening in the bodily wall that previously contained it. Typically, this process involves a part of the intestine that protrudes through a weak point in the abdominal wall. Hernias can be divided into ventral abdominal hernias, inguinal hernias, hiatal hernias, and femoral hernias. As the abdominal wall experiences repetitive stress secondary to increased intra-abdominal pressure, microscopic tears within the tissue develop. Eventually, this can lead to decreased tissue strength, predisposing individuals to the development of hernias.

Findings

Laparoscopic Ventral Hernia Repair (LVHR) is a common procedure that has developed significantly over the years. Incisional hernias are the most common types of ventral abdominal hernias. Robotic hernia repairs are on the rise but result in extensive operation time and increasingly expensive healthcare costs.

Hernia mesh products are medical devices used in these types of repairs. Over a million implantations of mesh are done each year with approximately one-third of patients experiencing adverse side effects. These negative impacts include bowel obstruction, perforation of organs, and even the need for corrective surgery.

Litigation Status

Over the years, there have been over 50,000 lawsuits related to hernia mesh products, but they aren’t stopping any time soon. As of January 18, 2023, there are 18,403 current lawsuits pending against just one manufacturer alone, C.R. Bard, in multidistrict litigation. The next bellwether trial is scheduled for May 2023.

Expert Witness Opportunities

There is much opportunity for general surgeons to make their mark as expert witnesses. An expert in general surgery would be able to opine on the broad scope of indications for laparoscopic hernia repair, as well as the risks and complications of which they are aware from the literature and from personal experience performing laparoscopic procedures.

Related Research Guides & Resources

• READ: Plaintiffs Win Second Hernia Mesh Bellwether Trial