Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. Impeachment wasn't the only topic before Congress this week: talc and Boeing also made the agenda. Lawyers cut a $13.5 billion deal for California wildfire victims. Could e-cigarettes make a Big Tobacco defense strategy go up in smoke?

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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Johnson & Johnson CEO Alex Gorsky. (Photo: Wikimedia)

 

Capitol Hill Hearings Highlight Talc, Max 8 Aircraft

With the U.S. House Judiciary Committee announcing two articles of impeachment against President Donald Trump this week, it was hard for anything else on Capitol Hill to get much attention. But, in fact, hearings over two significant mass tort matters—Johnson & Johnson's baby powder and Boeing's grounded aircraft—took place.

"Apparently, quiet news days are hard to find around here lately," said David Etheridge, a Presbyterian minister who testified on Tuesday before the House Oversight and Reform's Subcommittee on Economic and Consumer Policy, in its second hearing on the safety of cosmetic talcum powder. Etheridge was one of four plaintiffs who won a $37.3 million verdict in a trial alleging Johnson & Johnson's product caused their mesothelioma. Three other witnesses were plaintiffs' experts in talcum powder trials, prompting criticism from Johnson & Johnson and Republican members of the subcommittee. Much of the focus of the hearing, however, was on the person who wasn't there: Johnson & Johnson CEO Alex Gorsky. And there was much testimony focused on scientific testing after the FDA found asbestos in some of Johnson & Johnson's baby powder, which Johnson & Johnson disputed.

American Association for Justice President Linda Lipsen said after the hearing: "Johnson & Johnson (J&J) has known for years that asbestos fibers lurked in its talcum baby powder so they utilized testing methods slightly better than a high school microscope—ensuring that asbestos would never be detected in talc. There's a better way to test as today's experts testified, and we applaud the committee for taking on the issue of testing which has prolonged the public reckoning of J&J's carcinogenic baby powder for far too long." Next up: On Wednesday, about a dozen family members with lawsuits over the crash of a Boeing 737 Max 8 aircraft this year are expected to attend a hearing before the House Committee on Transportation and Infrastructure about the Federal Aviation Administration's oversight of the now-grounded aircraft. Testimony will feature FAA Administrator Steve Dickson and a former Boeing employee-turned-whistleblower who complained about the aircraft last year.

A firefighter runs while trying to save a home as a wildfire tears through Lakeport, Calif., Tuesday, July 31, 2018. (AP Photo/Noah Berger)

 

Lawyers Pitch New Deal for Wildfire Victims

Pacific Gas & Electric, in the midst of a Chapter 11 bankruptcy, has agreed to a $13.5 billion deal with victims of California's recent wildfires. On Facebook, attorney Mikal Watts (Watts Guerra), who represents 16,000 victims, praised the deal: "It is my favorite case of all time, and the last six weeks of my life spent full-time negotiating this accord have been the favorite six weeks of my professional career."

He credited additional lawyers on his team: Roy Miller (Hansen & Miller), Joseph Earley (Law Offices of Joseph Earley), Douglas Boxer (Law Office of Douglas Boxer), Michael Fiumara (Fiumara & Milligan), Garry Mauro and Alicia O'Neill (Mauro, Archer, O'Neill), Noreen Evans (O'Brien Watters & Davis) and environmental activist Erin Brockovich.

According to the Tort Claimants Committee, the deal was an increase from PG&E's initial $8.4 billion offer. Victims have until Dec. 31 to file a claim.

Committee lawyer Eric Goodman (BakerHostetler) told me PG&E extended the original Oct. 21 bar date after about 70% of a potential 100,000 victims had filed a claim. He explained that there were people who didn't completely understand what to do.

"And finding people who have been displaced and letting them know what's going on or reaching people who are traumatized by what happened, it's a different ball game altogether. It's more complicated than the ordinary case would be."

Juul e-cigarette. Photo by Steve Heap/Shutterstock.com.

 

Smoker Cases Clouded By E-Cigs

Electronic cigarettes are filtering into trials against Big Tobacco that involve smokers of traditional cigarettes. Lawyers Stuart Ratzan and Stuart Weissman (Ratzan Law Group), Edward Zebersky (Zebersky Payne), and John Crabtree (Crabtree & Auslander), who got a $42.5 million verdict last month in a Florida case over a smoker's death, referenced the increased popularity of e-cigarettes to counter claims by R.J. Reynolds and Philip Morris that they had changed their ways. Philip Morris owns a stake in Juul Labs, while R.J. Reynolds owns the Vuse Digital Vapor Cigarette. Scott Schlesinger (Schlesinger Law Offices) made similar references in another Florida trial, in which a jury last month awarded $157 million.

Here's what else is happening:

Opioids Out: The U.S. Supreme Court on Monday rejected a petition from the state of Arizona to take up its lawsuit seeking billions of dollars against opioid manufacturer Purdue Pharma and its founders, the Sackler family. In an unusual move, Arizona Attorney General Mark Brnovich had sought out the Supreme Court's intervention just before a bankruptcy judge imposed a stay on all lawsuits against Purdue and the Sacklers. Purdue opposed the move. Last month, U.S. Bankruptcy Judge Robert Drain extended the stay to April 8.

No Deal: A federal judge granted summary judgment to Robert Bosch in a class action brought by Volkswagen dealers alleging damages from the "clean diesel" emissions fraud scandal. In a Dec. 6 order, U.S. District Judge Charles Breyer (Northern District of California) found that the dealers had no recoverable damages and, as a result, rejected as moot their separate motion to certify a class. The dealers have been seeking $2 billion, according to Cleary Gottlieb, whose partners Matthew Slater, Carmine Boccuzzi and Alexis Collins scored the win for Bosch, alongside Ryan Sandrock (Sidley Austin). Steve Berman (Hagens Berman) and Richard Sox (Bass Sox Mercer) represented the dealers.

Lawyer Stunts: A Georgia trial over a stuntman's death on the set of "The Walking Dead" turned into its own drama on Tuesday when plaintiff's lawyer Jeffrey Harris (Harris Lowry Manton) repeatedly objected to the opening statement of defense attorney David Dial (Weinberg Wheeler) as argumentative. Gwinnett County State Court Judge Emily Brantley sent the jury out of the room and warned Dial not to do it again. The stuntman, John Bernecker, died from a 25-foot stunt fall off a balcony for Episode 807 of the show during filming southeast of Atlanta.

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