It’s been one week since Johnson & Johnson announced it had reached a proposed $5.5 billion settlement that would bring an end to about 76,000 lawsuits alleging the company’s talc products caused ovarian cancer. The proposed deal would resolve the cases proceeding in multidistrict litigation in New Jersey as well as several state court lawsuits, which represent about 95 percent of the remaining claims against J&J.
Whether the majority of plaintiffs will support the deal remains to be seen, but Mikal Watts, a Texas lawyer who is representing many clients in the litigation that’s been ongoing for 15 years, recently shared his feelings on social media, writing he would be recommending all of his clients accept the “good deal.” He noted that the $5.5 billion figure “is a floor, not a ceiling,” and wrote that the terms of this deal are “virtually the same terms as those embedded in our proposed 2024 settlement.”
Watts had helped negotiate a 2023 proposal for a $8.9 billion settlement that would have resolved the talc cancer lawsuits nationwide.
“Despite garnering the support of lawyers representing the overwhelming majority of these claims nationwide, some of my colleagues representing only a small minority of the total talc claims killed that deal … while viciously accusing me and other[s] supporting that deal of ‘selling out’ these women,” Watts wrote.
In a revised deal, reached in the 2024 Red River Talc bankruptcy proceedings, the company would have paid $10 billion to resolve the claims.
“Nonetheless, the same lawyers in the minority, then with control of the levers of the MDL proceeding and the common benefit fees potentially to be earned by it, killed that deal too, despite more than 75 percent of the claimants voting for it,” Watts wrote.
Since then, some plaintiffs lawyers have been disqualified for alleged ethical violations, two plaintiffs experts were disqualified, and a judge in New Jersey issued a show-cause order that, as Watts described it, put “all 69,000 of our claims in the federal MDL tort proceeding on life support.”
“The point is not to say ‘I told you so’; it is to say that ‘$10 billion mass tort settlements don’t grow on trees,” Watts wrote.
“We don’t always have to agree, but time has proven that we need to carefully consider the options available to us before castigating the motives of others for trying to solve hard problems for their respective clients,” the post reads.
“I’m glad these women are finally to get paid, but I fear our industry’s collective hubris cost those women billions of dollars and more than three years of delay. Next time, we have to collectively do better. Who is Hester Prynne now, forced to wear a scarlet letter for the rest of their legal careers, signifying their role in causing the biggest mass tort strategic debacle ever?”
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.
Northern District of Texas
Ex-Lawyer Gets 9 Years Prison for $8M Loan Scheme
A former lawyer who was accused of defrauding numerous victims out of more than $8 million will spend the next nine years in prison.
Prosecutors alleged William Thomas Engle Jr., 68, of Southlake, would promise to help individuals secure small business loans but would instead use those funds to buy luxury vehicles, jewelry and a yacht.
Engle, a 1982 graduate of Baylor University School of Law, was indicted in September on charges of wire fraud, conspiracy to commit wire fraud and transactional money laundering. His case went to trial in January, but after two days of testimony he agreed to plead guilty to one count of wire fraud.
U.S. District Judge Mark Pittman sentenced Engle on July 30 to 108 months in prison, and Engle filed notice of appeal to the Fifth Circuit the following day.
Judge Pittman ordered Engle to forfeit the following property:
- A 2019 Jeep Wrangler
- A ladies Rolex watch
- A diamond and sapphire pendant necklace and earrings
- An aquamarine and diamond pendant necklace and earrings
- A diamond eternity necklace
- A diamond tennis bracelet
- Diamond hoop earrings
- A diamond engagement ring
Engle was ordered to self-report to prison Sept. 1.
According to the State Bar of Texas website, Engle received a fully probated suspension in 2008, a public reprimand in January 2010 and resigned from the practice of law in lieu of discipline in November 2010.
“At the time of Engle’s resignation, there were 10 matters pending against him that allege neglecting legal matters; communicating with one represented by counsel; frequently failing to carry out completely legal obligations owed to the client; and failing to keep clients reasonably informed … to keep client funds in trust or escrow … to return unearned fees … and engaging in conduct involving fraud, deceit, dishonest or misrepresentation,” according to an article detailing lawyer disciplinary actions in the February 2011 edition of the Texas Bar Journal.
Engle is represented by federal public defender Adam Nicholson.
The federal government is represented by Brandie Wade, Jonathan Penn and Marty Basu of the Department of Justice.
The case number is 4:25-cr-00227.
Southern District of Texas
Prosecutors Secure $36.4M FCA Settlement
The former CEO of a Houston laboratory and his business partner from Florida have agreed to pay a total of $36.4 million to resolve claims they paid kickbacks and improperly billed Medicare and Medicaid for genetic testing.
The government had alleged that between January 2018 and January 2020, Access DX Laboratory in Houston, its former CEO Michael Stewart and Florida businessman Harold Shatz paid kickbacks to marketers in exchange for referrals of patients for genetic testing that was medically unnecessary.
The civil settlement comes in a qui tam lawsuit filed in Georgia by Douglas Green, the president of a marketing company in Massachusetts that was hired to market genetic testing. Green will receive $7.2 million.
Separately, in June, Stewart entered a plea agreement under which he pled guilty to conspiracy to defraud the federal government and conspiracy to pay and receive kickbacks. He is set to be sentenced in the criminal case in December by U.S. District Judge Andrew Hanen.
Shatz entered a plea agreement in October, agreeing to plead guilty to the same charge as Stewart. His sentencing, set for October, will also be handled by Judge Hanen.
Stewart is represented by David Gerger and Ashley Kaper of Gerger Hennessy Martin.
Shatz is represented by Andrew Levander and Ryan Strong of Dechert and Fred Schwartz of Shahady Wurtenberger.
The government is represented by Andrew Tamayo, Courtney Chester, Mellori Lumpkin-Dawson and Neeli Ben-David of the Department of Justice.
The case numbers are 4:22-cr-00328; 4:25-cr-00330; 1:19-cv-02845.
Southern District of Ohio
Buc-ee’s Goes After Cartoon Beaver in Ohio Trademark Suit
Buc-ee’s, the convenience store chain that is notoriously protective of its trademarks, as filed a new federal trademark lawsuit to protect its brand, this time taking aim at a cartoon beaver adorning signs at a mini mart in Ohio.
Hanes Road Carryout Inc., which operates Beaver’s Mini Mart in Beavercreek, Ohio, is accused in a new lawsuit of using a cartoon beaver logo that is too similar to Buc-ee’s’ federally protected mark.
“Like the Buc-ee’s marks, defendant’s marks incorporate a cartoon beaver with wide eyes and a smile,” the lawsuit alleges. “Defendant also uses red as a predominate color in its exterior signage with its anthropomorphic representation of a cartoon beaver mascot.”
Buc-ee’s told the court the Ohio store’s mascot is “likely to cause confusion among consumers” who are “likely to perceive a connection or association” with Buc-ee’s.
The case, filed Tuesday, has been assigned to U.S. District Judge Michael J. Newman.
Buc-ee’s is represented by Christina Moser and Melissa Bilancini of Baker & Hostetler.
Counsel for Hanes Road had not filed an appearance as of Monday.
The case number is 3:26-cv-00272.
Western District of Texas
Blogger Says Midland County Judge Retaliated Against Him
The elected chief executive officer of Midland County has been accused by a local blogger of retaliating against his reporting by publicly posting the author’s full social security number, date of birth and driver’s license number.
Christino Rodriguez, who operates the blog under the name Nino America, accuses Terry Johnson of First Amendment retaliation and of violating his Fourteenth Amendment rights by disseminating his personal identifying information. The lawsuit also alleges Johnson violated the Driver’s Privacy Protection Act, breached his statutory duty and was negligent.
Rodriguez alleges Johnson made the disclosure on Facebook after Rodriguez published court records regarding two lawsuits against Midland County. One of the lawsuits he detailed was brought by a former employee who alleged unlawful retaliation “under the supervision of defendant Johnson” and ended in a $150,000 settlement, according to the lawsuit.
Less than 24 hours after that blog post, according to Rodriguez’ lawsuit, Johnson posted to his personal Facebook page an old arrest warrant for Rodriguez that contained all the aforementioned personally identifying information with the caption, “Convicted felon trying to be a player.”
Rodriguez told the court in the lawsuit that the warrant, from 2015, did not result in any conviction and that the criminal charges he faced were dismissed. He also noted that his home address and telephone number were redacted from the post on Johnson’s Facebook page.
“This selective redaction supports a strong inference that the poster was aware the posted information was sensitive and dangerous and that the decision to leave the Social Security number and driver’s license number exposed was intentional rather than inadvertent,” the lawsuit alleges.
Johnson later deleted the post, according to the lawsuit, but his action drew a call for his resignation from a member of the Midland Independent School District board of trustees.
“Defendant Johnson’s conduct was not an isolated lapse in judgment,” the lawsuit alleges. “It was the deliberate act of a government official using the access of his office against a private citizen who sought to hold that official accountable through lawful, protected speech.”
The case, filed July 27, has been assigned to U.S. District Judge David Counts.
Rodriguez is represented by James Trainor III of Dhillon Law Group.
Counsel for Johnson had not filed an appearance as of Monday.
The case number is 7:26-cv-00284.
U.S. Court of Appeals for the Federal Circuit
$42M Infringement Verdict Undone on Appeal
A three-judge panel recently wiped out a $42 million verdict against Boston Scientific, agreeing with the company’s argument at trial that it was entitled to judgment as a matter of law on invalidity and infringement.
In January 2023, a jury in Delaware sided with the University of Texas Board of Regents and TissueGen Inc., agreeing Boston Scientific had willfully infringed the patent covering technology used in a biodegradable polymer fiber drug delivery system. UT had filed suit in 2017, alleging Boston Scientific’s “drug-eluting coronary stent systems” infringed its patent.
The jury deliberated nearly three hours before determining Boston Scientific had willfully infringed the patent that was issued in July 2003 to inventor Kevin Nelson, who was a professor of biomedical engineering at the University of Texas at Arlington before founding TissueGen.
The patented technology is used to release therapeutic agents to a targeted location inside of a patient at a variable rate, according to court documents.
Boston Scientific had incorporated the drug delivery system into its Synergy-branded coronary stents, jurors were told, after the company’s executives heard about the technology at a conference and in email exchanges.
Boston Scientific unsuccessfully argued at trial that the claims were invalid because of a prior-art reference. The panel agreed.
“We conclude that no reasonable jury on this record could find that UT’s proof established the presence in the accused stents of the ‘thread-like’ structure required by the claim construction not challenged by UT on appeal,” the opinion reads. “For this reason, BSC is entitled to JMOL of no infringement as well as of invalidity.”
Judges Richard G. Taranto, William C. Bryson and Tiffany P. Cunningham sat on the panel that issued the July 27 opinion.
UT is represented by John Lahad, Corey Lipschutz and Brian Melton of Susman Godfrey and Michael Shore of The Shore Firm.
Boston Scientific is represented by Pratik Shah, Z.W. Chen, Rachel Elsby, Michael Kahn and Kristen Loveland of Akin Gump Strauss Hauer & Feld.
The case number is 24-2062.
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