In this edition of Litigation Roundup, Big Oil is denied its request to bring an early end to a climate suit in California, Marriott reaches a data breach settlement with all 50 states, and we bring you details of the $2.2 billion settlement GlaxoSmithKline reached to bring an end to thousands of Zantac lawsuits.
On Wednesday, the drug manufacturer announced it had reached an agreement that would bring an end to 93 percent, or about 80,000, of the state court product liability lawsuits it is facing alleging the heartburn medication Zantac caused cancer.
Among the lawyers representing the plaintiffs are Mikal Watts of Watts Law Firm, who posted on Facebook that the settlement represented a “big day at Watts Law Firm!”
“I took 65 Zantac depositions, prepped to try several cases, tried one, and negotiated hard for this result,” he wrote. “More settlements to come shortly.”
R. Brent Wisner of Wisner Baum and Jennifer Moore of the Moore Law Group were also representing a large number of plaintiffs in state court lawsuits in California and Delaware. GSK issued a statement Wednesday that the settlement agreement did not include any admission of liability on its part and that it expects to have the settlement “fully implemented” by the middle of 2025.
The company also announced Wednesday it had separately settled a qui tam lawsuit for $70 million.
The Litigation Roundup is a weekly feature highlighting the work Texas lawyers are doing inside and outside the state. Have a development we should include next week? Please let us know at tlblitigation@texaslawbook.net.
Harris County District Court
PEMEX Draws Suit Over Refinery Gas Leak
Three people who were working at Deer Park Refining, which does business as PEMEX Deer Park, when a high-pressure gas leak occurred last week have filed a personal injury lawsuit.
Sergio Antonio Olvera, Jonathan Martinez and Yoselyn Soto filed suit against PEMEX and PMI Services North America, seeking damages in excess of $1 million for injuries sustained in the Oct. 10 incident. The gas release included hydrogen sulfide gas, which can cause death in high concentrations.
The leak at the Deer Park facility killed two and injured 35. Officials have said workers were conducting maintenance on a large flange of a line carrying hydrogen sulfide when the flange failed for reasons that are unclear and under investigation.
The suit brings claims for negligence, gross negligence and premises liability.
A case number and counsel information for the defendants wasn’t immediately available Monday.
The plaintiffs are represented by Muhammad S. Aziz of Abraham, Watkins, Nichols, Agosto, Aziz & Stogner.
Travis County District Court
Norton Rose Team Gets win for Texas Children’s Health Plan
Travis County District Judge Laurie Eiserloh recently granted temporary relief to Cook Children’s Health Plan, Texas Children’s Health Plan, Superior HealthPlan and Wellpoint Insurance Company in a dispute over the state of Texas’ $116 billion Medicaid proposal.
The plaintiffs filed suit June 20, alleging that if allowed to move forward the new proposal would cause them to lose their Medicaid contract and would adversely impact about 1.8 million residents at risk of losing health coverage.
The health plans asked the court to prevent the state’s Health and Human Services Commission from signing contracts they alleged were awarded under a flawed procurement process involving the State of Texas Access Reform Medicaid program and the Children’s Health Insurance Program, known as STAR and CHIP, respectively.
Judge Eiserloh signed the order Oct. 4 and set a trial date in the case for Nov. 3, 2025.
“Plaintiffs have established a cause of action against defendant and a probable right to the relief sought on their claims that defendant has violated, and, unless enjoined, will continue to violate statutory and regulatory requirements applicable to the [requests for proposal],” she wrote. “Specifically, plaintiffs have established that defendant has violated and will continue to violate the Texas Government Code, Texas Health and Safety Code, and Texas Administrative Code in procuring managed care contracts for STAR & CHIP in Texas. …”
Michael Murphy, the president of TCHP, issued a statement expressing gratitude for the court’s decision.
“It is unfortunate that it had to come to this point,” he said. “HHSC’s flawed process would disrupt and jeopardize the care of 425,000 of the state’s most vulnerable children and pregnant women, who rely on TCHP for their health coverage.”
Texas Children’s Health Plan is represented by Norton Rose Fulbright lawyers Susan Harris, Paul Trahan, Tom Coulter, Warren Huang, Jessie Johnson, Jeff Wurzburg, Kayla Ahmed.
Wellpoint Insurance is represented by Foley & Lardner lawyers Benjamin Grossman, Michelle Ku and Robert Francis Johnson III.
Cook Children’s Health Plan is represented by Karen Burgess of Burgess Law and Matthew P. Gordon of Perkins Coie.
Superior HealthPlan is represented by Tiffany A. Roddenberry, Karen Walker, Meghan McCaig and Theresa Wanat of Holland & Knight.
The state is represented by assistant attorneys general Jennifer N. Cook, Stephanie A. Criscione and Thomas Bevilacqua.
The case number is D-1-GN-24-003839.
Northern District of Texas
Lack of Legally Acceptable Definition of ‘Relevant Market’ Dooms Antitrust Suit
Vizient Inc., which describes itself as a healthcare performance improvement company and is described in court documents as a healthcare group purchasing organization, will not have to face antitrust claims brought by Endure Industries after recently securing a summary judgment win.
U.S. District Judge Brantley Starr entered final judgment in favor of Vizient Oct. 9, bringing the litigation to an end about four years after Endure filed suit. Endure, which sells disposable medical supplies, alleged Vizient violated the Sherman Antitrust Act by “monopolizing the market and engaging in anticompetitive conduct” and filed this lawsuit after it lost bids to contract with Vizient.
Judge Starr’s ruling hinged on what he said was Endure’s failure to define the “relevant market” within which Vizient carried out its allegedly anticompetitive activities. He rejected the argument that Vizient’s rebate programs and group purchasing organization contracts with hospitals “locked in” consumers to use only Vizient to purchase medical supplies.
“As noted above, 629 hospitals have left Vizient over the course of its time as a GPO,” Judge Starr wrote. “Vizient is hardly Hotel California.”
Haynes Boone partner Ron Breaux issued a statement saying Judge Starr’s ruling “rightly recognizes that Vizient’s rebate programs offer its members more choices — not fewer.”
“There’s nothing more pro-competitive than that,” he said. “Vizient’s programs don’t violate antitrust law — they offer value to members.”
Endure is represented by Christopher W. Patton and Andrés Correa of Lynn Pinker Hurst & Schwegmann.
Vizient is represented by Benjamin Goodman, Bill Morrison, Ashley Koos, Ben Breckler and Andrew Guthrie of Haynes Boone.
The case number is 3:20-cv-03190.
Western District of Texas
Spirit AeroSystems Gets Texas Investigatory Statute Invalidated
At a hearing Friday morning, U.S. Magistrate Judge Mark Lane granted a summary judgment win to Spirit AeroSystems, a Kansas-based manufacturer of Boeing fuselages, after permanently enjoining a Texas Business Organizations Code statute.
Spirit had argued that the law, found in Texas Business Organizations Code §§ 12.151-12.156, was unconstitutional because it gave “the Attorney General unlimited authority to demand immediate access to ‘any record’ of a filing entity or foreign filing entity (such as Spirit) registered in Texas.”
The U.S. Supreme Court made clear in its 2015 ruling in City of Los Angeles v. Patel, Spirit argued, that in order for such a search to pass constitutional muster, “the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker.” The Texas rule has no such allowance, Spirit argued in its June motion.
Spirit had filed suit seeking a declaratory judgment in its favor in May after the Texas Attorney General Ken Paxton issued Spirit a “request to examine” under the business code statute. In March, Paxton issued notice he was investigating the parts supplier “after reoccurring issues with certain airplane parts provided to Boeing.”
“The Texas Business Organizations Code authorizes the Office of the Attorney General to investigate the company’s organization, conduct, and management by requesting to examine pertinent documents,” read the press release issued by OAG. “Spirit AeroSystems is being instructed to produce a variety of documents relevant to manufacturing defects in their products. Additionally, the company must release documents related to its diversity, equity, and inclusion (‘DEI’) commitments, and whether those commitments are unlawful or are compromising the company’s manufacturing processes.”
Spirit is represented by Gerard A. Salvatore, Jaclyn N. Moyer and Matthew T. Martens of Wilmer Cutler Pickering Hale and Door and Darren L. McCarty of McCarty Law.
Texas is represented by assistant attorneys general Jason C. McKenney, Matthew Jennedy, Ryan Baasch and Scott Froman.
The case number is 1:24-cv-00472.
Superior Court of California, San Francisco County
Big Oil Loses Bid to End California’s Climate Suit
Major oil and gas companies have been denied a request to bring an end to a lawsuit brought by the state of California and several municipalities accusing the entities of misleading the public about climate change.
The long list of defendants in the lawsuit include the largest oil and gas companies in the world — ExxonMobil, Shell, Total, BP, Citgo, ConocoPhillips, Hess and Marathon, to name a few.
California Superior Court Judge Ethan P. Schulman issued a 22-page order declining to dismiss the lawsuit Oct. 8. The companies had sought dismissal on jurisdictional grounds, arguing California courts didn’t have authority to hear the case because the claims didn’t arise from or relate to their contacts with California.
“The court disagrees and, consistent with every other court in the country that has addressed similar climate change actions, concludes that plaintiffs’ claims arise out of or are related to defendants’ extensive contacts with California, including their sale and promotion of fossil fuel products in California, their allegedly deceptive statements regarding climate change, and the alleged injuries plaintiffs suffered in California,” he wrote.
The lawsuit was filed last year and brings claims for public nuisance and false and misleading advertising.
The case number is CJC-24-005310.
Federal Trade Commission
Marriott Reaches Nationwide $52M Data Breach Settlement, Texas Gets $3.5M
The Federal Trade Commission and Marriott International reached a settlement agreement Oct. 9 that brings an end to litigation stemming from three data breaches that exposed the contact information, credit card information, dates of birth and other personal information of 344 million guests.
As part of the deal, the hotel and its subsidiary, Starwood Hotels & Resorts Worldwide, will pay $52 million across 50 states. Texas’ share is $3.5 million. The hotel chain agreed to implement policies and practices to strengthen its data security and to offer customers an avenue to request that their personal data be deleted.
The breaches that prompted the FTC’s involvement occurred between 2014 and 2020.
“Given the frequency of cyberattacks today, it is simply unreasonable for companies to lack a comprehensive risk-based data security program,” Texas AG Paxton said in a news release. “Through this settlement, customers will be much better protected.”
Marriott and Starwood are represented by its executive vice president and general counsel Rena Hozore Reiss.
The case was prosecuted by Bureau of Consumer Protection attorneys Katherine E. McCarron, Kamay M. Lafalaise, Tiffany George and Samuel Levine.
The file number is 1923022.