Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. The FDA adds firepower to lawsuits alleging Juul falsely marketed its e-cigarettes as safe. Why are so many groups objecting to next month's opioid trial? And here's what lawyers are looking at in the California boat fire.

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Juul Under Fire for Marketing Claims

Where there's smoke, there's fire. At least, that seems to be the case in the legal cloud over Juul Labs, after the FDA sent this letter on Monday to its CEO demanding to know more about its marketing claims⁠—in particular, that its e-cigarettes are safer than traditional cigarettes.

What got the FDA fired up? For one thing, evidence was presented before a U.S. House subcommittee in July that Juul's executives had made such claims about their e-cigarettes to school children. In a second letter (see here), the FDA sought documentation about Juul's marketing, including its "Make the Switch" campaign targeted to smokers.

The letters caught the attention of plaintiffs' lawyers who have filed lawsuits targeting JuulL's marketing. Right now, attorneys are duking it out over which judge should hear their cases, and the U.S. Judicial Panel on Multidistrict Litigation hears arguments later this month.

I spoke to two plaintiffs' attorneys: Scott Schlesinger (Schlesinger Law Offices), who has filed a class action to take Juul's e-cigarettes off the market, and Joseph VanZandt (Beasley Allen), whose firm has filed several personal injury lawsuits.

Here's what they told me about the FDA's action :

Schlesinger: "They said it appears to us you're marketing your products as a safer alternative to tobacco cigarettes, but you can't do that because the federal government has to pass on that. And it has to give you permission to say it's safer."

VanZandt: "The FDA basically is telling Juul what we've been screaming from the rooftops for the last several months: that they discovered they were in fact targeting minors with their products with their marketing. And not only that, they were making false claims about the safety of Juul not just to minors but the population in general. This is very significant for the litigation and certainly it's a blow to Juul."

Ohio State Attorney General David Yost . AP Photo: Andrew Welsh-Huggins
 

Opposed to next month's opioid trial? Get in line.

It's starting to look like nobody wants to go to next month's bellwether trial over the opioid crisis. Another defendant, Mallinckrodt Pharmaceuticals, reached a $30 million deal with the two Ohio counties serving as plaintiffs in the trial, set for Oct. 21 in federal court in Cleveland. Other defendants, Endo International and Allergan, reached settlements last month totaling $15 million.

But that's not all. Thirteen states and the District of Columbia filed an amicus brief in support of Ohio AG Dave Yost's emergency writ before the U.S. Court of Appeals for the Sixth Circuit to halt the trial. And they're not the only ones: the U.S. Chamber of Commerce also filed a supporting amicus brief, citing the "troubling surge of civil lawsuits against businesses brought by cities, counties, and other municipalities."

Meanwhile, U.S. District Judge Dan Polster, who plans to oversee the trial, continues to side with plaintiffs in summary judgment orders out this month. This week, he found that public nuisance claims and racketeering allegations should go before a jury.

And there is still a good chance for a global settlement. On Tuesday, a special master whom Polster appointed to look into a proposal from lead plaintiffs' counsel to create a "negotiation" class that could resolve the legal claims of 33,000 cities and counties gave a green light to the idea's most controversial elements.

A Deep Dive for Lawyers Suing Over Boat Fire

The owners of a scuba diving boat that caught fire off the coast of Southern California over Labor Day weekend have filed a legal action to limit their liability. The fire broke out at night, killing 34 people who were sleeping below deck. Truth Aquatics Inc., which owned the boat, called Conception, is represented by Russell Brown and James Kuhne (Gordon Rees).

The cause of the fire remains unknown, and the NTSB and Coast Guard are investigating, assisted by the FBI and ATF.

I talked to two lawyers at Baum Hedlund with experience in alleged negligence at sea: Clay Robbins, who represents victims injured by "lava bombs" on a tour boat near Hawaii's Kilauea volcano, and Timothy Loranger, a scuba diver who actually was on the Conception about 20 years ago.

Robbins: "The question becomes, what emergency lighting was available to guide the passengers and crew members to the exits that should have been more prominently provided? We're looking at those issues, as well as questions concerning the adequacy of the fire alarms. It seems that nobody down below was at all aware of a fire progressing until it was too late for them."

Loranger: "What we're learning right now, the way the boat was configured, even with a good briefing on where the exits are, and how you might get out, in this case the passengers might not have been able to get out because of where the escape hatch was located—for example, close to where the doors are that exit where the galley is."

Here's what else is happening:

Talc Trouble: Johnson & Johnson has moved for a mistrial in a high-profile talcum powder case after the New Jersey judge struck its lawyer's entire closing argument. Diane Sullivan (Weil Gotshal) filed the motion after Middlesex County Superior Court Judge Ana Viscomi struck her closing argument last week in a trial involving four plaintiffs who alleged Johnson & Johnson's talcum powder products caused their mesothelioma. The judge then allowed plaintiffs' attorneys to make a closing argument "soaked with venom," the motion says. Plaintiffs' attorney Chris Panatier, (Simon Greenstone Panatier) said the mistrial motion was part of Sullivan's "strategy to try the case against the lawyers rather than on the evidence."

 

FAIR Act Passes: The U.S. House Judiciary Committee on Tuesday passed bipartisan legislation that would halt forced arbitration provisions. The Forced Arbitration Injustice Repeal Act, or FAIR act, would allow plaintiffs to sue in federal courts for things like sexual harassment and consumer fraud. American Association for Justice CEO Linda Lipsen said the bill "is the first of its kind to reach this critical step in the legislative process—a truly monumental step in the fight to rein in corporate immunity."

 

Walmart Security: A couple who was injured in a Walmart in El Paso by a mass shooter last month has filed what could be the first legal action, claiming the retail giant was negligent by not providing proper security. Plaintiffs' attorney Rob Ammons (The Ammons Law Firm) filed a verified petition in El Paso County District Court to take the depositions of Walmart representatives.

Thanks for reading Critical Mass! I'll be back next week.