Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. Here's what's happening: Legislators are looking at whether to regulate cosmetic talc products, including Johnson & Johnson's baby powder. Jurors began deliberating in the first federal Roundup trial. And O'Melveny takes on a pack of dog food lawsuits.

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House Panel Considers if FDA Should Regulate Talcum Powder

A U.S. House of Representatives subcommittee heard testimony on Tuesday about whether the FDA should have more authority to regulate cosmetic products that might contain carcinogens – and it was clear that Johnson & Johnson was the primary focus.

No one from Johnson & Johnson testified at the hearing, held by the U.S. House Committee on Oversight and Reform's Subcommittee on Economic and Consumer Policy. My story points out that one witness, Dr. Anne McTiernan, of the Fred Hutchinson Cancer Research Center in Seattle, is an expert for plaintiffs' attorneys in the multidistrict litigation alleging Johnson & Johnson's baby powder caused women to get ovarian cancer. Another witness was the son of an ovarian cancer victim whose husband got a $72 million verdict against Johnson & Johnson.

Johnson & Johnson was quick to point this out in a statement following the hearing that said “the testimony was biased with a majority of witnesses being connected to litigation against our company.” Attorney Bart Williams (Proskauer Rose) told me:

“The company believes this particular hearing was one-sided in its design and unfairly so.”

Plaintiffs' attorney Leigh O'Dell (Beasley Allen), who attended the hearing, acknowledged that McTiernan is one of her team's 22 general causation experts in the MDL, where a federal judge in New Jersey plans to hear from scientific experts on July 22. Leigh defended McTiernan's findings:

“She's given an opinion in the MDL that's identical to what she testified today: that talcum powder can cause ovarian cancer.”

 

 

Another SF Jury to Decide Roundup Risks

The first phase of a trial over Monsanto's Roundup herbicide wrapped up with closing arguments on Tuesday, and a federal jury in San Francisco has begun deliberating. Law.com's Ross Todd, who was in court, had this story, which said plaintiffs' lawyer Aimee Wagstaff (Andrus Wagstaff) and Monsanto lawyer Brian Stekloff (Wilkinson Walsh) did the closings. Because U.S. District Judge Vince Chhabria bifurcated the trial, the jury will only decide whether Roundup was a significant cause of plaintiff Edwin Hardeman's cancer. If so, a second phase will begin right away to determine damages.

The trial began two weeks ago with fireworks: Chhabria sanctioned Wagstaff for “obvious violations” of his pretrial orders in her opening statement. Ross said the courtroom Tuesday was a “packed house,” but the arguments were not so explosive.

He told me:

“Things went much smoother than in openings, though Chhabria again held a couple of sidebars — one during Wagstaff's closing and one during her rebuttal time. Both resulted in Chhabria telling the jury to disregard what she had just said, but none of the sanctions fireworks of openings.”

Who Got the Work?

O'Melveny is representing Hill's Pet Nutrition Inc. in more than a dozen lawsuits over its Prescription Diet and Science Diet canned dog food products, specific sets of which were recalled on Jan. 31 because of excessive amounts of Vitamin D. Plaintiffs' attorneys have sought to coordinate the cases in multidistrict litigation. New York partner Hannah Chanoine appeared this month before the U.S. Judicial Panel on Multidistrict Litigation, and in cases in New York, Rhode Island and California. Partners Richard Goetz in Los Angeles and Amy Laurendeau, in Newport Beach, California, also appeared in individual cases.

Here's what else is going on:

Drug Delay: Purdue Pharma, which has been rumored to be considering bankruptcy, has sought to delay a May 28 trial in a case brought by the Oklahoma attorney general over the opioid crisis. The trial, as scheduled, would be the first to potentially hold a company liable for addictions and deaths tied to the prescription painkillers. Oklahoma AG Mike Hunter called the move a “desperate” attempt to avoid trial. Purdue's lawyers criticized such “inflammatory rhetoric, speculation, and misleading, irrelevant assertions.”

Uber Brakes: Uber has agreed to pay $20 million to settle a lengthy class action alleging it misclassified its drivers in California and Massachusetts. U.S. District Judge Edward Chen in San Francisco will decide whether to preliminarily approve the deal, which also involves the ride-sharing tech company's former CEO Travis Kalanick, after a March 21 hearing. Plaintiffs' lawyer Shannon Liss-Riordan(Lichten & Liss-Riordan) is seeking $5 million in attorney fees.

Fee Fight: A federal judge has dismissed a fee-sharing lawsuit brought by two law firms that claimed to have referred clients in the securities litigation relating to Vioxx, a painkiller linked to heart problems. Multidistrict litigation brought by investors against drug maker Merck settled in 2015 for $1.06 billion. Whitehead Law Firmand Goforth Lewis & Sanford claimed they were owed millions of dollars from Stull, Stull & Brody, which got $31 million of the $212 million in fees from the settlement. But U.S. District Judge Stan Chesler found that the agreement, if it existed, would violate New Jersey ethics rules.

Thanks for reading Critical Mass! My colleague, Max Mitchell, will be filling in for me next week.