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Law.com
Critical Mass
Class Actions | Mass Torts
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Amanda Bronstad
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Welcome to the first edition of Critical Mass, Law.com's new briefing on class actions and mass torts. I'm Amanda Bronstad in Los Angeles. This week I'm breaking down two significant verdicts returned yesterday—one good and one bad for Johnson & Johnson. Plus, how would a class action against Harvey Weinstein work? And a groundbreaking lead-paint ruling out of California has manufacturers shuddering.
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Johnson & Johnson takes a $247 million hit
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Here's the good news … at least it’s not $1 billion.
A federal jury in Dallas came back Thursday with a $247 million verdict in the fourth bellwether trial over DePuy Orthopaedics’s Pinnacle hip implants. For DePuy parent Johnson & Johnson, it’s another big hit: Previous verdicts have been $502 million and $1.04 billion. But it’s another giant victory for lead plaintiffs attorney Mark Lanier.
Here’s my coverage of the verdict.
If you recall: This is the same trial in which Johnson & Johnson (repped by John Beisner of Skadden) had to defend witness tampering allegations.
What’s next: Don’t expect a settlement of all 9,300 Pinnacle cases. Beisner wrote in a statement that the verdict would “do nothing to advance the ultimate resolution of this six-year-old litigation.” It’s a good chance that jurisdiction will be argued on appeal. “This verdict is a pyrrhic victory for plaintiffs,” Beisner wrote, citing an August decision in which the Fifth Circuit found that U.S. District Judge Ed Kinkeade had committed “grave error” in establishing jurisdiction over the trial.
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But Johnson & Johnson won, too…
Just a few hours or so after the Pinnacle verdict, Johnson & Johnson scored a defense win in the first trial alleging its talcum powder products caused a woman to get mesothelioma.
Thursday’s defense verdict in Los Angeles Superior Court was a big win for Orrick, where New York partners Morton Dubin and Peter Bicks spearheaded a Johnson & Johnson defense team that also included Tucker Ellis and King & Spalding.
Plaintiffs attorney Chris Panatier of Simon Greenstone Panatier said: “We just missed on the first one.”
Jurors took their time: After three weeks of trial, jurors began deliberating on Monday. But Panatier told me the jury took Wednesday afternoon off because “a good number of them got food poisoning at lunch.”
Jurors, forget those meal vouchers. Brown bag it.
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A Class of Weinstein Accusers?
Attorney Steve Berman lodged a class action on Wednesday alleging federal racketeering claims against Harvey Weinstein, his production company and studio Miramax. My colleague Ross Todd has this.
It’s a new take on what’s quickly becoming all-too-common claims of sexual harassment and assault against Hollywood figures. (On Thursday, new allegations surfaced against U.S. senator and former comedian Al Franken.) The Weinstein case seeks to represent a class of “dozens, if not hundreds, of women.”
But it raises a thorny question: How are these women’s experiences common enough to certify a class? The accusations involve everything from inappropriate massages to rape.
Berman, of Hagens Berman, isn’t envisioning a single trial with dozens of women taking the stand: “I like the idea of a common class trial on the issue 'was there an illegal RICO enterprise?'. Then each victim can use that in her own trial,” he told me.
In the meantime, he shouldn’t have much trouble finding class members. The suit references a former employee who claimed she was asked to keep track of the women.
And then there’s Twitter … Earlier this week, my colleague Ben Hancock reported that a class action brought on behalf of 1,000 women who claim they were sexually assaulted by Uber drivers discovered some of the reports on Twitter as part of the #MeToo campaign.
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Get the Lead Out
Three lead paint companies failed to convince a California appeals court to upend a $1.15 billion public nuisance judgment against them. Here’s my story on Tuesday’s ruling.
Technically, the appeals court reversed the judgment against Sherwin-Williams, ConAgra and NL Industries—but only because it limited liability to homes built prior to 1951, not 1981. That could lower potential abatement costs, but it’s still a plaintiffs win—and not just over lead paint.
On Thursday, the National Association of Manufacturers said that “all manufacturers—and the jobs they support—could be at risk.”
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MORE CLASS ACTION NEWS:
➤ Cordray Fallout: Consumer Financial Protection Bureau Director Richard Cordray announced on Wednesday that he would resign. Law.com’s C. Ryan Barber has this report along with a look at what lawyers are saying.
➤ Opioid Defense: The growing spate of government suits filed over opioids has “stirred up a significant amount of defense work for Big Law firms,” according to Law.com’s Kristen Rasmussen. Her report takes a deep look at who’s representing who on the defense side. Purdue Pharma Inc., for example, has brought in Patrick Fitzgerald, former U.S. attorney in the Northern District of Illinois.
➤ Trump Card: The Ninth Circuit appeared reluctant Wednesday to dismantle the $25 million class action settlement involving Trump University. An objector, who also happens to be a lawyer, is challenging the deal’s notice provisions. The hearing had some amusing political undertones …
Remember: Trump chastised the district judge, Gonzalo Curiel, for being biased. When Trump lawyer O’Melveny’s David Kirman stood up to discuss a “textbook example of a district court properly administering the settlement,” panelist Andrew Hurwitz retorted: “I see your client’s view of Judge Curiel has changed?”
“Your honor,” Kirman chuckled, “yes.”
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That's it for this week.
Send your thoughts, story ideas and feedback to abronstad@alm.com.
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