Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. What do lawyers suing Boeing think about this week's Capitol Hill hearings over the grounded 737 Max 8 aircraft? Pulling from the defense bar's wish list, judges in MDLs over Juul e-cigarettes and 3M earplugs have ordered an "initial census" of cases. Find out who's repping Allergan in lawsuits over its breast implant recall.

Feel free to reach out to me with your input. You can email me at [email protected], or follow me on Twitter: @abronstadlaw

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Relatives of crash victims mourn at the scene in Ethiopia where an Ethiopian Airlines' Boeing 737 Max 8 crashed shortly after takeoff in March 2019, killing all 157 people on board. (Photo: Mulugeta Ayene / AP)

 

Boeing Bombshells?

Nearly 20 family members of victims of a March 10 airplane crash in Ethiopia met with Boeing and FAA officials this week on Capitol Hill, where CEO Dennis Muilenburg and others testified about an alleged defect in the flight control system that caused the deaths of 157 people on board the 737 Max 8 aircraft.

Bob Clifford (Clifford Law Offices), who is lead counsel in about 100 lawsuits filed over Ethiopian Airlines Flight 302, said family members had just returned from Ethiopia with the remains of their loved ones before attending the U.S. Senate Commerce, Science and Transportation Committee hearing on Tuesday. Many were holding up signs of those who died. The U.S. House Transportation and Infrastructure Committee is set to hear testimony today.

Here's a recap of Tuesday's hearing, which focused on how much Boeing's CEO knew about the defect, in a flight control system called the MCAS, which has been linked to another 737 Max 8 crash a year ago of a Lion Air flight over Indonesia that killed 189 people.

I reached out to Clifford to find out what he hopes to get from the hearings. He told me:

"Certainly, it's possible that in the answers to questions, Mr. Muilenburg might say something that has value to use in the litigation, possibly on the timeline about what Boeing knew or didn't know immediately after the Lion Air crash, or what they knew or didn't know about the significance of leaving out of the training manual anything about the MCAS system." There's also the potential discovery, since Boeing turned over materials to both Congressional committees, including internal messages from a Boeing pilot warning of problems with the aircraft.

By the way: Boeing added Winston & Strawn to its legal team, headed by former U.S. Attorney Dan Webb. Clifford called that a smart decision.

"He's a man who's a no-nonsense trial lawyer and enjoys a wonderful, well-earned reputation for being forthright and direct in litigation, and that makes things a whole lot easier when you're trying to do this work."

Judge William Orrick III, U.S. District Court of the Northern District of California.

 

MDL Judges Want "Initial Census" of Cases

U.S. District Judge William Orrick ordered plaintiffs' lawyers suing Juul to come up with an "initial census" of all the cases in the multidistrict litigation proceeding. The order follows a similar move by U.S. District Judge Casey Rodgers in cases over 3M earplugs. Both orders focus on early vetting of lawsuits, an idea pushed by 48 general counsel and the International Association of Defense Counsel, in separate letters this month to the Committee on Rules of Practice and Procedure.

Why does it matter? Because defendants and their lawyers insist that up to 40% of MDLs are made up of meritless cases. And that complicates things, like how to value a potential settlement.

Meanwhile, lawsuits against Juul keep coming. Los Angeles Unified, the second largest school district in the nation, announced on Tuesday it filed a class action against Juul in San Bernardino County Superior Court. The district, repped by Panish, Shea & Boyle and Baron & Budd, had planned a press conference for Monday in downtown Los Angeles but rescheduled the event after a wildfire broke out near The Getty Center.

That's nowhere near downtown, so I reached out to Panish, Shea & Boyle partner Brian Panish to ask if the flames were near the firm's office in west Los Angeles.

"Yes many people out bc of it," he wrote back.

Who Got the Work?

Allergan, which recalled its Biocell textured breast implants on July 24, has brought in Lori McGroder (Shook, Hardy & Bacon) in about a dozen lawsuits filed against it. The lawsuits allege that Allergan knew that its implants, in tens of thousands of women, increased the chances of getting anaplastic large cell lymphoma but failed to warn about those risks. On Oct. 18, McGroder appeared on behalf of Allergan, then asked for more time to respond to a plaintiffs' motion to transfer the lawsuits to Tennessee or California. The U.S. Judicial Panel on Multidistrict Litigation, which set the cases for oral argument at its Dec. 5 hearing in Austin, Texas, gave Allergan until Friday to respond.

Here's what else is going on:

Zantac Attack: Plaintiffs' lawyers predict a "real explosion" of lawsuits over Zantac, the over-the-counter heartburn medication that Sanofi recalled this month after the FDA discovered an ingredient that could cause cancer. Brent Wisner (Baum Hedlund), who has won verdicts of $289 million and $2 billion against Monsanto, told me that lawsuits over Zantac "will dwarf what we saw in Roundup." One reason is sheer numbers: Millions of people have taken Zantac since it went on the market in 1983.

IVC Verdict: The first Philadelphia jury to decide a trial over inferior vena cava, or IVC, filters, came back with a $33 million award on Monday. The jury awarded plaintiff Tracy Reed-Brown, whose implanted device caused pain and other complications, more than $1 million in future medical expenses and $2.3 million in future pain and suffering—then, hit defendant Rex Medical with a punitive damages award of $30.3 million. Plaintiff's attorneys were David Matthews (Matthews & Associates), Rosemary Pinto (Feldman & Pinto) and Timothy Goss (Freese & Goss). Megan Grossman and Pete Swayze (Lewis Brisbois) led the defense team.

Sleeper Suit: Lawyers suing Fisher-Price over its April 12 recall of 4.7 million Rock 'n Play infant sleepers filed a consolidated class action complaint on Monday, insisting that the Mattel subsidiary made misleading statements in its advertising and packaging about the safety of its product, which has been linked to 59 deaths. The complaint, filed in U.S. District Court for the Western District of New York, also calls the recall itself too complicated. The complaint has 23 named plaintiffs in 17 states, including California, Connecticut, Florida, New Jersey, New York, Pennsylvania and Texas. The nationwide class includes all consumers who purchased the Rock 'n Play as of 2009.

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