2021 marks the second year, and the first full year, impacted by the COVID-19 pandemic. While the virus has continued to affect litigation, the major lawsuits of 2021 were not COVID-19 related; instead three major multidistrict lawsuits, concerning personal injury or product liability, crossed over from 2020. Cases associated with these three lawsuits, concerning ear plugs, talcum powder, and mesh hernias, formed a substantial percentage of litigation in 2021.
There were a total of 438,170 lawsuits filed in U.S. district courts from January 1 to December 1, 2021, an average of 53.2 lawsuits per hour. This is a decrease from 2020, which saw 623,177 lawsuits from January 1 to December 1. One possible reason for this decline in the number of filed lawsuits year-over-year is the decrease in the large-scale multidistrict litigation concerning earplugs sold to soldiers and others filed against 3M and Aearo, despite these lawsuits still being the most against any entity or filed in a court in 2021.
The Northern District of Florida had the largest number of lawsuits by far at approximately 72,359, followed by the Southern District of Texas at 22,583 and the District of New Jersey at 22,229. The majority of the Northern District of Florida’s lawsuits were product liability cases (70,515); most of which were against Aearo and 3M, partially a continuation of the aforementioned earplug lawsuits. Meanwhile, the Southern District of Texas primarily has litigation involving the United States and the District of New Jersey is the venue for Johnson & Johnson’s talcum powder litigation.
The top three courts in 2021 are unchanged from the prior year. This highlights the impact of class action or multidistrict litigation on the courts system, even spanning multiple years. In 2020, the Northern District of Florida had approximately 208,000 cases, mostly lawsuits against 3M and Aearo, while the Southern District of Texas had approximately 36,511 and the District of New Jersey had approximately 20,185, mostly against Johnson & Johnson regarding its talcum powder products as well as Astrazeneca, Merck and Takeda, among others relating to proton pump inhibitors. Meanwhile, the Central District of California came in fourth with 19,245, where there was a large portion of ADA filings and the Western District of Texas was in fifth with 17,386, the majority of which are brought by the United States.
The most popular case types for 2021 were product liability with 80,049 filings primarily for litigation involving 3M and Aearo (the defendants in the earplugs cases) as well as vaping manufacturers, Altria and Juul. The next case types with the largest number of filings were healthcare/pharmaceutical personal injury product liability cases 23,866 filings, primarily against Johnson & Johnson the defendant in the talcum powder litigation as well as C.R. Bard and Davol for the mesh hernia litigation. This is followed by prisoner civil rights with 15,355 cases, insurance had 13,539 cases, civil rights – other with 13,450 filings, civil rights – ADA with 11,934 cases
Meanwhile, in 2020, product liability was by far the most popular case type with approximately 212,000 filings, mostly for lawsuits involving 3M and Aearo, but also C.R. Bard, Monsanto, Davol and Juul. The litigation from some of these companies has carried over from 2020 (even 2019) into 2021.
The Top Parties for 2021
The top party for 2021 is the United States with approximately 127,000 cases. The government is the plaintiff in 49% of cases, and case types range from prisoner cases to criminal matters. Aearo and 3M and their related entities have the next largest at approximately 71,000 lawsuits. Johnson & Johnson and its related entities trail behind at 11,500 to 13,500 depending on the Johnson & Johnson – related entity. Aearo, 3M and Johnson & Johnson are all defendants in the vast majority of their cases.
However, if 3M and Aearo’s litigation from 2020 and 2021 were combined, they would have the most litigation at approximately 290,000 lawsuits for their litigation, including earplug-related lawsuits.
There are a variety of law firms representing 3M in both 2020 and 2021, including Blackwell Burke, Dechert, Moore Hill and Westmoreland as well as Kirkland & Ellis. Representation for Aearo is fairly similar.
Following the major players – 3M and Aerao, Johnson & Johnson, and C.R Bard and Davol – other parties that played a crucial role in litigation in 2021 are Equifax, Altria and Philip Morris.
Analysis of the top judges again reveals the prominence of multidistrict litigation in the federal court system with the three judges overseeing the most litigation being those overseeing the Aearo and 3M, Johnson & Johnson as well as Davol and C.R. Bard litigation. Specifically, these are Judge M Casey Rodgers of the Northern District of Florida, Judge Freda Wolfson of the District of New Jersey and Judge Edmund Sargus of the Southern District of Ohio. After the judges overseeing these prominent lawsuits, the two judges overseeing the most litigation are Judge James Cain of the Western District of Louisiana overseeing a variety of insurance litigation, namely from State Farm and Allstate and Judge William Orrick of the Northern District of California overseeing the Juul Labs, Altria and Philip Morris litigation.
The Top Firms
The law firm representing clients in the greatest number of lawsuits in 2021 is Shook, Hardy & Bacon, which has primarily represented Johnson & Johnson as well as Monsanto as defendants. In second place is the U.S. Attorney’s Office, then followed by Onder Shelton O’Leary & Peterson representing plaintiffs against Johnson & Johnson.
The Social Security Administration has the fourth largest case count followed by Vorys, Sater, Seymour and Pease, representing Davol and C.R. Bard in their litigation. The Center for Disability Access, the Department of Justice are also representing a large number of cases, while Juneau David and the Law Office of Cade R. Cole are often appointed as special masters. Meanwhile, Dechert is primarily representing defendants Aearo and 3M as well as Atrium Medical and Maquet Cardiovascular, among others; Kirkland & Ellis is primarily representing defendants 3M and Aearo as well as Syngenta and Jones Day is mainly representing defendants Experian and Chevron.
This year, the biggest lawsuits, particularly those against 3M and Aearo; Johnson & Johnson; and C.R. Bard and Davol, highlight the prominence and power of large scale product liability litigation to generate large caseloads and emphasize the power of plaintiff attorneys to represent individual suits collectively becoming transformative litigation.