Welcome to Critical Mass, Law.com's briefing on class actions and mass torts. I'm Amanda Bronstad in Los Angeles. Mark your calendars! A judge has put the first trial over opioids on a fast track. Last week's $37 million talc verdict just got bigger — a lot bigger. Find out what a lawyer suing Facebook thought about Mark Zuckerberg's performance on Capitol Hill.

Send your feedback to [email protected], or find me on Twitter: @abronstadlaw.

 

 

Polster Sets Date for Opioids Trial

The judge in the federal MDL over opioids has set a discovery schedule — and it's fast. Trial is set for March 18, 2019 (see my story here).

U.S. District Judge Dan Polster, initially focused on a global settlement of hundreds of cases brought by cities and counties against opioid companies, has allowed discovery to go forward. On Wednesday, he picked cases in six states for discovery. They include West Virginia and Illinois, which happen to have some of the oldest opioid cases pending, and Ohio, where Polster, a judge in Cleveland, has jurisdiction. They also include Alabama, the only state that filed its opioid case in federal court.

Most state attorneys general have filed their cases in state court, where Polster doesn't have jurisdiction. But lawyers told me those cases might follow his lead. Co-lead plaintiffs counsel Paul Hanly (of Simmons Hanly Conroy) told me:

“The AG cases in state court will probably not proceed as quickly as Judge Polster is going to proceed in federal court and therefore there's a very good likelihood he will have issued decisions in the Alabama case before any such decision are made in any of the state AG actions.”

 

Talc Verdict Topped Off With Punitive Damages

After awarding $37 million to a man and his wife who claimed he got mesotheliomafrom baby powder, a New Jersey jury turned around this week and slapped Johnson & Johnson's Janssen Pharmaceuticals and supplier Imerys Talc America with $80 million in punitive damages. Here's Law.com's story by Charles Toutant. The winning team was featured here in Lit Daily's Litigator of the Week.

The award comes in the first talc verdict against Johnson & Johnson involving mesothelioma and its talcum powder products. (Verdicts involving ovarian cancer have ranged from $55 million to $417 million.) Tuesday's punitive damages award was $55 million to Johnson & Johnson and $25 million to Imerys.

I checked in with Charles, who spoke to plaintiffs attorney Moshe Maimon (Levy Konigsberg). Charles told me:

“Definitely the major theme for punitives in this case was that J&J internal reports and communications about the asbestos issue were inconsistent with the positions it took publicly. And there were more of these derogatory internal communications presented in this case than in past cases.”

 

Did Zuckerberg Save Face(book)?

As reviews of Mark Zuckerberg's testimony poured in, questions remained over the business and legal impact of his marathon appearances before Senate and House panels.

So, how did he do?

The Facebook CEO was on Capitol Hill for two days this week to explain recent security lapses to lawmakers. Here's some post-game analysis from Law.com (story here), The Wall Street Journal (this story) and NBC (this report).

Then there's Robert Ruyak (Ruyak Cherian), one of the attorneys who filed a class action on Tuesday against Facebook and Cambridge Analytica (see my colleague Tom McParland's coverage here).

His legal team said there were “key admissions of guilt” in Zuckerberg's testimony. Here's why:

“He admitted that Facebook failed to notify users in 2015 that their data had been stolen because Facebook considered it a 'closed case' after getting a letter from Cambridge saying the data had been destroyed. He went on to admit that they should have notified users nonetheless, and we couldn't agree more that Facebook did far too little far too late.”

Who Got the Work?

A federal judge in New York has appointed lead plaintiffs counsel in antitrust class actions brought against Allergan over Restasis eye drops. U.S. District Judge Nina Gershon on April 4 appointed these lawyers as co-lead counsel for the end payors in the multidistrict litigation: Eric Fastiff (Lieff Cabraser), Dena Sharp (Girard Gibbs) and Joseph Saveri (Joseph Saveri Law Firm). For direct purchasers, Hagens Berman partners Thomas Sobol and Kristen Johnson were appointed co-lead counsel. Gerson also appointed an 11-person executive committee. (see her orders here and here.)

Here's what else you need to know:

Mesh Milestone: A jury awarded $33 million in the first verdict against C.R. Bard in New Jersey state court. The Law.com story (see here) says it's one of the largest pelvic mesh verdicts to date. Adam Slater (Mazie Slater) represented the plaintiff, Mary McGuinness, while Lori Cohen (Greenberg Traurig) represented Bard. The jury is due back on Friday to decide punitive damages.

Oops, I Did It Again: Tech companies, listen up! The FTC warned tech firms on Thursday to lock down their software developments. It was part of an expanded consent decree announced with Uber over its 2016 data breach. See Law.com's story here. Uber, as you recall, had reached a consent decree with the FTC back in August over a 2014 hack but failed to mention its most recent breach.

New to Class: The European Commission introduced a proposal this week that would allow class actions to be filed in the nine countries of the European Union. Here's Law.com's report. The New Deal for Consumers, as it's called, would allow penalties of up to 4% of a corporation's annual revenue. But there are still limits – no punitive damages, for instance, and only consumer groups can sue. That's still not enough safeguards, said U.S. Chamber of Commerce's Institute for Legal Reform President Lisa Rickard in the story. She warned: “There is a very high degree of concern that the proposal, as drafted, will result in a class action system more abusive than that here in the U.S.”