Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. After a New Jersey judge tossed the closing argument of its lawyer in a talc trial, Johnson & Johnson is back in court with a new legal team. More than 1,000 lawsuits over Viagra could die on the vine after the judge tossed the plaintiffs' experts. How Bristol-Myers used a "blow provision" to back out of a $55 million class action settlement.

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

Diane Sullivan of Weil, Gotshal & Manges. Courtesy photo

 

After Judge's Rebuke, J&J Changes Talc Team

A talcum powder case in which a judge threw out the closing argument of Johnson & Johnson's lawyer last year was back before jurors in New Jersey this week for a much less dramatic punitive damages phase. Jurors on Sept. 11 had awarded $37.3 million to four plaintiffs who alleged Johnson & Johnson's baby powder caused them to get mesothelioma. Days before, Middlesex County Superior Court Judge Ana Viscomi chastised Diane Sullivan (Weil Gotshal) for "attacking the profession" by calling plaintiffs' lawyers "sinister" during her closing argument.

This time, Sullivan wasn't there. Allison Brown (Skadden) and Morton Dubin (Orrick), both veterans of talcum powder trials, headed Johnson & Johnson's new team in the punitive damages phrase before a new jury. Chris Panatier (Simon Greenstone Panatier) handled both phases for the plaintiffs.

My colleague Charles Toutant was at the opening statements on Tuesday. He said there was only one objection:

"Plaintiff's lawyer Chris Panatier, pointing out that the plaintiffs were already compensated, said 'we are not trying to say "compensate them." This stage is about punishment and deterrence.' Later, Panatier warned the jury that lawyers for J&J 'will seek to cast doubt on the jury. They aren't allowed to do that.' When J&J lawyer Allison Brown had her turn, she told jurors that the prior jury had not decided that the company 'intentionally or deliberately harmed the plaintiffs,' drawing an objection from Panatier, who said 'that's not the standard.' The trial judge, Ana Viscomi, called the lawyers into a sidebar, and afterwards said only, 'Please continue, Ms. Brown."'

 

Judge Strikes Experts, Eviscerating Viagra Lawsuits

A federal judge struck all the plaintiffs' general causation experts in more than 1,000 lawsuits alleging that taking Viagra caused the progression of melanoma.

Why it matters: It's the latest ruling to strike plaintiffs' experts in multidistrict litigation involving product liability (think Mirena, Zoloft and Lipitor). In his Monday order, U.S. District Judge Richard Seeborg concluded that the experts relied on studies that found an increased risk, but "not a strong association."

Seeborg, who is in the Northern District of California, had some help from his colleague, U.S. District Judge Vince Chhabria, who in 2018 refused to toss plaintiffs' general causation experts in the multidistrict litigation alleging the herbicide Roundup caused non-Hodgkin lymphoma. Seeborg cited Chhabria's decision liberally in his opinion, which found that, unlike Roundup, the experts in the Viagra cases cited nothing outside the litigation to support their conclusions.

Kudos go to: Loren Brown (DLA Piper) and Joseph Petrosinelli (Williams & Connolly), attorneys for Viagra producer Pfizer Inc., and Michael Imbroscio (Covington & Burling) for Eli Lilly & Co., which sells Cialis. Lead plaintiffs' attorneys were Ernest Cory (Cory Watson), Munir Meghjee (Robins Kaplan) and Jennifer Liakos (Napoli Shkolnik).

A Settlement Unravels After Class Members Opt Out

It's not uncommon for class action settlements to include a provision that allows defendants to back out if a certain number of class members opt out of the deal. But most defendants don't actually back out—except, that is, in a $55 million antitrust settlement involving cancer treatment drugs.

On Dec. 23, defendant Celgene, now owned by Bristol-Myers Squibb, rescinded the settlement after 80 of the 9,000 class members opted out of the deal. Both sides are due back in court next month.

In a statement, Bristol-Myers said it "exercised its right to terminate the settlement in light of the fact that numerous large third party payors who were members of the settlement class refused to release their potential claims and participate in the settlement." It's not clear why, but, in a Nov. 27 letter to the judge, Matthew Stockwell (Pillsbury Winthrop), said his clients, who were "potential opt-out parties," had "serious concerns" that the "opt out procedure is overly formalistic and burdensome."

I caught up with lead plaintiffs' counsel Melinda Coolidge (Hausfeld), who told me:

"It's relatively rare that a 'blow' provision is even triggered, but I've been in other cases before where it was, and the defendant still decided not to rescind the settlement agreement."

Here's what else is happening:

On the Hunt: Oklahoma Attorney General Mike Hunter, on the heels of getting a $475 million judgment against Johnson & Johnson over the opioid crisis, has filed a new lawsuit against three pharmaceutical distributors: AmerisourceBergen Drug Corp., McKesson Corp. and Cardinal Health Inc. Unlike the case against Johnson & Johnson (now on appeal), Hunter's new suit does not allege public nuisance claims or seek abatement costs. Hunter already has racked up $363 million in settlements with Purdue Pharma, Teva Pharmaceuticals and, in a deal announced last week, Endo Pharmaceuticals.

Supreme Mesh: Benjamin Anderson (Anderson Law Offices) took his fee fight over $7.2 million in the pelvic mesh litigation to the U.S. Supreme Court, filing a Dec. 18 petition to review the $550 million in common benefit fees awarded last year. He is challenging what he called an unprecedented appellate waiver imposed on plaintiffs' firms, without their knowledge, that challenged fees in their mesh cases. On Jan. 9, the Supreme Court denied a separate application Anderson filed to stay disbursement of the mesh fees pending review of his petition.

Off Course: Ride-sharing firm Lyft Inc. is fighting a move by plaintiffs' attorneys in California to coordinate more than 20 lawsuits alleging that its drivers sexually assaulted passengers. Lyft attorney Beth Stewart (Williams & Connolly) was in court this month opposing the plaintiffs' petition to coordinate the cases under California's Judicial Council Coordinated Proceedings. Plaintiffs' attorneys William Levin (Levin Simes Abrams) and Brooks Cutter (Cutter Law) argued in favor of coordination.

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