Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. A key Roundup trial got postponed as settlement talks intensify. Lawyers are looking at whether there's a potential lawsuit over the crash that killed LA Lakers basketball star Kobe Bryant. The defense bar is pushing in Massachusetts for a new rule that would counter the practice of "anchoring," which is when plaintiffs' attorneys suggest a specific damages number to jurors.

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Photo: Sheila Fitzgerald/Shutterstock.com

Roundup Trial Gets Postponed as Settlement Pressure Mounts

A high-profile trial over Monsanto Co.'s Roundup herbicide was postponed on Friday just as opening statements were set to begin. The case would have been the first Roundup trial in Missouri, where Monsanto has its headquarters, and the first to involve more than one plaintiff.

Bayer AG, which owns Monsanto, is trying to reach a settlement of some or all of the 42,700 lawsuits across the country brought by individuals claiming they got non-Hodgkin lymphoma due to Roundup exposure. The talks follow jury verdicts in California of $80 million, $289 million and $2 billion, all of which Bayer has appealed.

According to Bloomberg, a global settlement could be $10 billion. But that might not be enough, according to plaintiffs' attorney Stephen Tillery (Korein Tillery). He told me the math might not add up for some plaintiffs' attorneys:

"Typically, when you throw in a huge number of cases, and divide up the number, the people with the best cases get hurt the most." Monsanto's also doing the math. He told me:

"If you end up doing the math on those verdicts as they're lowered, if they were affirmed at that number, multiply them by even half the cases we hear about in the news, tens of thousands of cases, and I don't believe Bayer could pay that bill."

Kobe Bryant Photo: Michael Nagle/Bloomberg

What Lawyers Are Looking at in Kobe Bryant Crash

The cause of the helicopter crash that killed retired Los Angeles Lakers basketball player Kobe Bryant, his 13-year-old daughter, and seven other people, remains unknown. The National Transportation Safety Board is investigating the crash, which occurred on a foggy Sunday morning in Los Angeles.

But could a lawsuit come out of this?

I reached out to former U.S. Department of Transportation Inspector General Mary Schiavo (Motley Rice), whose firm brought lawsuits involving the Black Hawk helicopter, a Sikorsky similar to the one that Bryant had been in. She told me there were several things lawyers are looking for, including the final words the air traffic controller had with the pilot (you can hear some of that conversation here). "Those next sentences could be billion dollar words," she told me.

Aviation attorney Justin Green (Kreindler & Kreindler) said it was too soon to speculate on a cause. But he shared some thoughts:

"While the helicopter dates back to 1991, many of its components are much newer and if one failed, like a rotor blade for example, it may support a products liability suit. We would look into potential operator/pilot negligence. In weather related accidents, we look at the [Federal Aviation Administration], which can be sued under the Federal Tort Claims Act, but nothing I have seen thus far suggests FAA liability."

"Anchoring" Away in Massachusetts?

Business groups are pushing for a proposed rule change in Massachusetts that would allow defense attorneys to respond when plaintiffs' lawyers ask jurors for specific amounts of damages—a practice called "anchoring." In a Jan. 23 letter to the Massachusetts Supreme Judicial Court, 17 groups, including the DRI-The Voice of the Defense Bar and the U.S. Chamber Institute for Legal Reform, wrote that the amendment would ensure that "all parties are treated fairly" after a 2014 law allowed plaintiffs' attorneys to ask for specific amounts during closing arguments.

Public comments to the proposed amendment are due Jan. 31.

John Campbell (University of Denver Sturm College of Law), who wrote a 2016 law review article called "Countering the Plaintiff's Anchor: Jury Simulations to Evaluate Damages Arguments," said defense attorneys want to talk to jurors about damages, too.

"It's a good hunk of defense attorneys who do give a number. It's common. 'Listen, we don't believe we should lose this case. We believe we proved our drug wasn't defective, our car wasn't defective.' But many defense attorneys say, 'if you disagree, I have an obligation to talk to you about damages. Even if you think we messed up, the number the attorney said on the other side is crazy.'"

Here's what else is happening:

Diverse Team: Nearly half of the 26-attorney leadership team being proposed to spearhead lawsuits over Allergan's breast implant recall are women. U.S. District Judge Brian Martinotti, overseeing the multidistrict litigation, wanted a diverse leadership team. The proposed slate includes four co-lead counsel: Elizabeth Fegan (Fegan Scott), Virginia Buchanan (Levin Papantonio), Jennifer Lenze (Lenze Lawyers) and Shanon Carson (Berger Montague).

Gorsky Grilled: Johnson & Johnson CEO Alex Gorsky testified in court for the first time in a case alleging his company's baby powder contained asbestos. Monday's testimony, in New Jersey, comes in a case in which four mesothelioma victims who won a $37.3 million verdict in the case are seeking punitive damages. Plaintiffs' attorney Chris Panatier (Simon Greenstone Panatier) questioned Gorsky about his stock sales and asked whether he had read the internal documents cited in 2018 articles in Reuters and The New York Times—to which the CEO replied that he had not. Here's coverage of the trial from Courtroom View Network.

Juul Ignited: Lawyers suing Juul in California state courts turned out on Tuesday at the first status conference before Los Angeles Superior Court Judge Ann Jones. Although there are fewer than 100 lawsuits coordinated so far, lawyers are predicting thousands of lawsuits—even more than the MDL in San Francisco. Tom Girardi (Girardi Keese), Paul Kiesel (Kiesel Law) and Mark Robinson (Robinson Calcagnie) were among those vying for lead counsel roles. Girardi, 80, told me (in jest): "The reason they should appoint me as co-lead counsel is if you're over 65, you'll never see the end of it."

Thanks for reading Critical Mass! I'll see you next week.