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Attorneys Seek Leadership Roles in Litigation Over Recalled Allergan Biocell Breast Implants

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A proposal has been submitted by a group of lawyers representing women who are pursuing Allergan Biocell breast implant lawsuits, seeking various leadership roles in the recently established federal multidistrict litigation for all claims resulting from the cancer risk linked to the textured surface design.

Dozens of women are pursuing product liability and class action lawsuits over Allergan Biocell textured breast implants, which were removed from the market last year, due to a risk the design may cause women to develop a rare type of cancer in the surrounding tissue, which is now known as breast implant-associated anaplastic large cell lymphoma (BIA-ALCL).

In addition to individual claims for women who developed ALCL from Allergan Biocell breast implants, often resulting in the need for removal of the devices, the litigation also includes complaints that seek class action status to pursue damages for all women who received the recalled implants, indicating that they will now require medical monitoring for the rest of their lives due to the increased risk of cancer.

Given similar questions of fact and law presented in complaints filed in District Courts nationwide, the U.S. Judicial Panel on Multidistrict Litigation (JPML) decided last month to consolidated the claims before U.S. District Judge Brian R. Martinotti in the District of New Jersey, to reduce duplicative discovery into common issues, avoid conflicting pretrial schedules and serve the convenience of the parties, witnesses and the judicial system.

On January 13, Judge Martinotti issued a case management order (PDF) calling on plaintiffs’ attorneys to meet and confer, then submit a proposed leadership structure for attorneys who will take certain actions during the coordinated pretrial proceedings that benefit all plaintiffs who are pursuing a case.

According to a proposal (PDF) submitted on January 17, a consensus has been reached among all breast implant attorneys involved in the litigation, calling for a group of four attorneys to serve as Co-Lead Counsel, one to serve as a Liaison Counsel, a seven-member Plaintiffs’ Executive Committee (PEC), a twelve-member Plaintiffs Steering Committee (PSC) and a Settlement Committee that consists of the Liaison Counsel, Co-Lead Counsel and two additional lawyers.

Attorneys appointed to these various roles will perform various tasks during the discovery process and meetings with the Court, including arguing motions, taking depositions of common witnesses, reviewing discovery documents and other actions. However, each plaintiff will still maintain their own lawyer to represent their specific interests in the claim against Allergan

“Of course, the central themes over what Allergan knew and when it knew it predominates in every case, as well as many issues related to the textured breast implants and their propensity to cause injury,” the proposal notes. “While the class action and individual cases will present some different management requirements, the underlying factual and legal issues overlap and are mostly the same.”

Allergan Breast Implant Recalls

The litigation has emerged after an Allergan Biocell breast implant recall was issued in July 2019, in response to an FDA determination that nearly all cases of BIA-ALCL have been linked to this one type of device.

Over the past few years, there have been concerns about the link between textured breast implants and cancer that may develop in the tissue surrounding certain types of implants.

According to data released by the FDA over the summer, at least 573 known cases of breast implant ALCL have been diagnosed worldwide, including at least 33 deaths. Of those, 481 have been linked to breast implants sold by Allergan, which have been involved in at least 12 of the 13 deaths where the manufacturer of the breast implant was known.

Since the recall, there has been a sharp rise in the number of lawsuits filed against Allergan over the breast implants, each raising similar allegations that the textured design was unreasonably dangerous and defective.

The decision to consolidate the cases means all pretrial proceedings will be handled by one judge, but the cases will remain individual lawsuits. If a breast implant settlement agreement is not reached while the cases are pending before Judge Martinotti, each claim may later be transferred back to its originating District Court for trial.

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