Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. Here's what's happening: Why the federal judge in the first Roundup bellwether trial was peeved at the plaintiff's lawyer. A new talcum powder trial opens in Johnson & Johnson's home turf of New Jersey. LaBarron Boone said his $152M verdict against Ford came in no ordinary rollover case.

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What Rankled Judge Chhabria at Roundup Trial?

The first bellwether trial in the multidistrict litigation over Monsanto's Roundup herbicide opened on Monday in San Francisco — and sparks were flying. My colleague Ross Todd's story says U.S. District Judge Vince Chhabria interrupted opening statements several times, held talks at sidebar and then threatened to sanction plaintiff's lawyer Aimee Wagstaff (Andrus Wagstaff).

A quick recap: Brian Stekloff (Wilkinson Walsh) is representing Monsanto, now owned by Bayer, which is coming off a $289 million verdict last fall in San Francisco Superior Court. But Chhabria gave Monsanto a boost by bifurcating this trial, in which plaintiff Edwin Hardeman claims Roundup caused his non-Hodgkin's Lymphoma. For her part, Wagstaff filed a response on Monday insisting that she did her best to comply with evidentiary rules that were “intricate and sometimes difficult to discern.”

I asked Ross for more details on what bothered Chhabria on Monday. He told me:

“The first instance was her trying to go into the details of Hardeman's rounds of tests to get his NHL diagnosis. Multiple biopsies. Needles. Whatnot. Later it seemed to be how deep she was going on one particular study. Then it was pointing out that the EPA had never done any studies of Roundup itself, just glyphosate. He also said later that he wasn't happy that she had included a family photo of the plaintiff in the opening. That was designed to show his family and not the property. He seems pretty bound and determined to keep phase one focused on the science.”

 

 

Third Time a Charm for NJ Talc Trial?

The third trial in New Jersey state court alleging Johnson & Johnson's baby powder caused mesothelioma opened on Monday. Law.com's Charles Toutant had this report. It's an important venue because juries in two prior trials came out with a defense verdict and a $117 million award. Plus, Johnson & Johnson is based there.

Note: The case is the first mesothelioma trial against Johnson & Johnson for The Lanier Law Firm (which last year got a $4.7 billion verdict against Johnson & Johnson over its baby powder's alleged link to ovarian cancer). The Lanier team is Monica Cooper, Mark Linder, Joseph Cotilletta and Luz Restrepo. Morton Dubin (Orrick) and Allison Brown (Weil Gotshal) represented Johnson & Johnson.

According to the story, Cooper referenced a 1992 internal memo in her openings that discussed Johnson & Johnson targeting Hispanics, teenagers, African Americans and overweight women. Charles told me he was surprised:

“Those topics can be treacherous for trial lawyers, but the defense accusing the plaintiff's lawyer of using a 'race card' seems particularly risky–'race card' is a term you'd hear on Fox News, and juries in Middlesex County tend to be diverse.” 

Noticeably absent was Imerys Talc America, Johnson & Johnson's talc supplier, which filed for Chapter 11 bankruptcy on Feb. 13, citing “historic talc-related liabilities.” Check this out: The bankruptcy filing has a Top 30 list of plaintiffs' firmssuing it over talc.

Lawyer: Ford Testing Drove $152M Rollover Verdict

An Alabama jury earlier this month awarded $152 million to a man paralyzed from a rollover accident involving a 1998 Ford Explorer. That's a big verdict, but it begs the question: Ford rollover trials are still going on? 

I spoke with LaBarron Boone (Beasley Allen), lead trial counsel for the 24-year-old plaintiff, Travaris “Tre” Smith.

Q: What sets your case apart from the rollover cases of the 1990s?

“They did not have all the information over the years that we have today for Travaris Smith in this case. This is a 1998, and it didn't happen until 2015. We had time to continue to gather documents that drifted out of confidentiality orders over the years. Over time, we were able to put the complete picture together which people already thought and believed.”

Included in that confidential data, Boone told me, was evidence that an engineer conducting internal testing on the Ford Explorer put sandbags on the floor to prevent rollovers.

Q: What did the jury think of that evidence? 

Boone: “Absolutely, the jurors were looking with mouths gaped open. Jurors were offended.”

Here's what else you need to know:

Follow the Rules: The U.S. Supreme Court on Tuesday took a strict view of filing deadlines in the latest case over class action procedures. My story said the high court unanimously reversed the U.S. Court of Appeals for the Ninth Circuit in finding that the plaintiff in a class action over the labeling of “Cobra Sexual Energy” supplements had missed the 14-day deadline to petition for interlocutory appeal of a de-certification order. John Hueston (Hueston Hennigan) won the ruling for Nutraceutical Corp.

Spill It: A Florida lawyer has alleged in a lawsuit that Steve Herman (Herman, Herman & Katz) drafted the class action settlement over the Deepwater Horizon oil spill to get more than $3 billion in fees. I wrote this story about the suit, in which Brian Donovan, (The Donovan Law Group) alleged Herman concocted an “eight-step plan to maximize his compensation” while reducing BP's liability over oil spill claims. Herman, co-lead counsel in the multidistrict litigation in New Orleans, stood by his handling of the case.

Radio Silence: The legal fight over the opioid epidemic is getting uglier, with U.S. District Judge Dan Polster ordering both sides this month to put the kibosh on “extrajudicial statements” to the media. At issue: Statements that plaintiffs' attorney Mike Papantonio (Levin Papantonio) said on his radio show, “Ring of Fire” — like, say, the family who founded Purdue Pharma were “scumbags,” “thugs” and “criminals,” according to this Reuters article. It's not the first time defendants have complained about remarks that plaintiffs' attorneys have made outside the courtroom (they sought sanctions last month over a “60 Minutes” episode). It's also not the first time they've targeted Papantonio's radio show, which came up in the Taxotere litigation.

Thanks for reading; Critical Mass will be back next week.