Welcome to Critical Mass, Law.com's weekly briefing on class actions and mass torts. I'm Amanda Bronstad in Los Angeles. Welcome back from the Labor Day weekend! Here's what's going on: Tuesday's confirmation hearing for Brett Kavanaugh featured protests and politics — but what about class actions? Design defects dominate the Missouri duck boat lawsuits. And the Xarelto defendants extend their winning streak.

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

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Consumer Questions for Kavanaugh

Brett Kavanaugh's confirmation hearings began on Tuesday with protestors, charges over withheld documents — and not much on the class action front.

That's not too surprising, given that Kavanaugh, a judge on the U.S. Court of Appeals for the D.C. Circuit, has a thin record when it comes to class actions. But it doesn't mean the topic didn't come up. American Association for Justice President Elise Sanguinetti predicted two months ago that Kavanaugh could “dramatically affect consumer rights” (see that story here). She had this to say about Tuesday's confirmation hearing:

“The American Association for Justice appreciates that access to justice for consumers and workers was one of the key topics discussed today by several senators. Senator [Sheldon] Whitehouse [D, Rhode Island] in particular stressed the importance of the constitutional right to a jury trial as a protection against corporate misconduct — guaranteeing that every American has a fair shot at finding justice and holding powerful corporations accountable.”

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Duck Boat Design Faulted

The woman whose nine family members drowned when a duck boat sank in Missouri has sued the tour operator, alleging the company and its predecessors knew for decades that the vehicle's design wasn't safe. Here's my story.

At least six lawsuits have been filed over the July 19 tragedy, which killed 17 of the 31 people on board. The Missouri attorney general's office even filed a suit last week, and federal prosecutors in Missouri have launched a criminal investigation.

Most of the suits, including that of survivor Tia Coleman, who filed on behalf of her husband and three children, point to previous incidences of duck boat disasters such as the 1999 drowning of 13 people in Arkansas. Among the problems with the boats: Not enough buoyancy and canopies that act as “death traps” if the boat takes on water.

Representing Coleman's family is Aleshire Robb and Saltz, Mongeluzzi, Barrett & Bendesky. Other firms that have filed suits are: Arnold & Itkin;Mombach, Boyle, Hardin & Simmons; McGonagle Spencer Gahagan;Norman and Graves; The Wilbers Law Firm, and ABG Law.

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Defense Adds to Win Streak in Xarelto

A Philadelphia jury gave Bayer and Janssen another defense verdict last week in the latest trial over the blood thinner Xarelto. My colleague Max Mitchell has that story here.

For those keeping track: That's two defense verdicts in a row in Philadelphia, where the trial court also tossed out the first verdict of $28 million – the only plaintiff's win. Bayer and Janssen also won three defense verdicts in the federal multidistrict litigation in New Orleans.

The defense team was lead by Wilkinson Walsh, whose Alexandra Walshand Tamarra Matthews Johnson teamed up with Mike Zellers of Tucker Ellis (the plaintiff's team was Neil Overholtz of Aylstock Witkin, Ellen Relkinof Weitz & Luxenberg and Brad Honnold of Goza & Honnold). Max summarized what's happening:

“So far plaintiffs have really struggled to prove that the warnings were inadequate. In the latest trial, the jury said no on the question of whether the defendants failed to adequately warn the patient's treating doctor. And in the first case where the plaintiff initially won, the judge later tossed out that verdict, saying the plaintiff's arguments on this were speculative. So, so far, that seems to be the biggest hurdle for plaintiffs.”


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Who Got the Work

A high-profile bench trial in a class action challenging the NCAA's compensation to student athletes began last week in federal court in Oakland, California. Ross Todd's story for Law.com (see here) has the roster of attorneys. For the plaintiffs: Hagens Berman's Steve Berman, Winston & Strawn's Jeffrey Kessler and Bruce Simon of Pearson, Simon & Warshaw. NCAA's lawyers are Beth Wilkinson at Wilkinson Walsh and Jeff Mishkin at Skadden Arps. Two major college sports conferences also hired representation: the Pac-12's counsel is Proskauer Rose's Bart Williams, and the Big Ten's attorney is Britt Miller at Mayer Brown.


Here's more you need to know:

About Face(book): Facebook is fighting a pair of new class actions filed late last month by consumers who allege the social network has violated their privacy rights by sharing their data with third parties, particularly mobile device manufacturers. Here's Law.com's report. Both cases were filed under California's Constitutional Right to Privacy. Tycko & Zavareei filed one suit, while Arnold Law Firm, Morgan & Morgan, Abbott Law Group and the Hannon Law Firm filed the second.

Buckeye Boost: Plaintiffs suing opioid manufacturers got a big boost last month when a judge refused to dismiss the Ohio attorney general's case over the epidemic. According to my story (see here), lawyers representing the state of Alabama, a hospital in Florida and six counties — all cases handpicked by a federal MDL judge to go forward in discovery – cited the ruling in fending off motions to dismiss pending by several opioid defendants.

Didn't Notice: Final approval of a $75 million class action settlement with the NCAA over concussion-related claims was put on hold for a year after a judge approved a request by the lawyers to bring in an outside auditor to review the notice program. Here's my story. Apparently, notice administrator Gilardi & Co., which is part of KCC Class Action Services, has repeatedly asked the judge to delay a final approval hearing. The reason? It suddenly discovered that thousands more student athletes hadn't even gotten the notice.


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