Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. Amid the debate over COVID-19 legal immunity, nursing homes have become front and center for lawyers. Johnson & Johnson's decision to stop selling talc-based baby powder won't dampen the court fight. Who filed Tuesday's COVID-19 class action against McDonald's?

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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Lawyers Prepare for Nursing Homes Lawsuits

Nursing homes are at the forefront of liability over COVID-19 exposure, according to lawyers on both sides. So far, about half a dozen nursing homes face lawsuits over the deaths of their residents, and, on May 13, the family of a healthcare worker at a Texas nursing home filed a $1 million lawsuit against his employer after he died last month of COVID-19. Although some states have passed measures to protect healthcare workers from legal liability, prominent plaintiffs' firms, like Morgan & Morgan in Florida, are fighting those efforts.

Defense lawyers are preparing for an onslaught of cases. DRI-The Voice of the Defense Bar is hosting a public webinar this Friday on preparing for pandemic litigation against nursing homes. And, last week, Dechert hosted this webinar on litigation risks for nursing homes.

Of note: Lawmakers this month called for investigations into whether governors in New York, Pennsylvania and Michigan had failed to protect the residents of nursing homes, which are highly regulated, from COVID-19 outbreaks.

One lawsuit to pay close attention to: the first public nuisance case against a nursing home. On May 1, the city of Cicero, Illinois, represented by outside counsel K. Austin Zimmer and Cynthia Grandfield (Del Galdo Law Group), filed a lawsuit against City View Multicare Center, which had 200 cases of coronavirus and nine deaths. On May 8, a judge granted a temporary restraining order forcing City View, repped by Polsinelli, to comply with an emergency order made by Illinois Governor J.B. Pritzker, who is a named defendant in the case, along with the state of Illinois and the Illinois Department of Public Health.

Cicero spokesman Ray Hanania said:

"Incredulously, City View argued, without a protest from the IDPH, that policies ordered by Gov. Pritzker were not 'orders' but were rather, to use their word, 'guidelines.' It seemed as if the IDPH was more concerned about protecting City View, which they oversee legally, than with protecting the residents there."

 

Baby Powder Booted, But Talc Trials Linger

Johnson & Johnson's decision on Tuesday to discontinue sales of its talcum powder-based baby powder won't slow down the court fight. Multiple lawyers representing victims of ovarian cancer and mesothelioma, and their families, told me they plan to challenge the products in court, where tens of thousands of lawsuits remain pending.

Johnson & Johnson said the decision, which is limited to products sold in the U.S. and Canada, was due to a "portfolio assessment related to COVID-19" and declining demand caused by "changes in consumer habits and fueled by misinformation around the safety of the product and a constant barrage of litigation advertising."

Johnson & Johnson said it would continue to "vigorously defend" its talc products in court, where the company has lost several talc verdicts (and won some). W. Mark Lanier (The Lanier Law Firm), who won a record $4.7 billion jury verdict last year on behalf of 22 women with ovarian cancer and their families, told me in an email:

"Today is an amazing day for female health. This product needed to be off the market, and now it is. I am glad many of my clients are still alive to see this, and we remember those who have passed."

Who Got the Work?

Danny Rosenthal (James & Hoffman) and the firm of Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich filed a class action on Tuesday against McDonald's on behalf of five employees in Chicago, and four of their family members, alleging the restaurant chain restricted access to gloves and hand sanitizer and failed to inform workers about known cases of COVID-19 at their restaurants. The complaint, filed in Illinois' Cook County Circuit Court, alleges negligence and public nuisance claims. Also, on Tuesday, Michael Rubin (Altshuler Berzon) and Lauren Teukolsky (Teukolsky Law) filed Private Attorneys General Act notices under California labor law on behalf of employees at McDonald's restaurants in Los Angeles, San Jose and Monterey Park.

Here's what else is happening:

Gas Guzzler: At least 10 law firms have filed antitrust class actions alleging a pair of traders manipulated California's gas prices soon after a 2015 explosion at an Exxon Mobil refinery. In addition to Milberg, which filed a case on May 13 alleging $2.4 billion in damages, Cotchett, Pitre & McCarthy and Saveri & Saveri filed two separate cases this month with Hadsell Stormer and Lockridge Grindal. Other firms that filed cases this month include: Berman Tabacco, Wolf Haldenstein, Girard Sharp, and Hausfeld.

Asbestos Action: Another judge overseeing asbestos litigation has halted upcoming trials due to court orders relating to COVID-19. Earlier this month, Kanawha County Circuit Court Judge Ronald Wilson, in West Virginia, halted asbestos trials planned for June. Now, retired South Carolina Supreme Court Justice Jean Toal has postponed trials, set to begin next week, to Sept. 21. Toal's order, however, insisted that discovery and depositions continue. "Ceasing workup of these cases is not necessary to protect the health of witnesses or lawyers," she wrote.

Layup: The Ninth Circuit upheld a 2019 injunction order that found the NCAA had violated antitrust laws by capping education-related benefits, such as postgraduate scholarships and study abroad aid, for Division 1 basketball and football players in the NCAA's Football Bowl Subdivision. The appeals court found that U.S. District Judge Claudia Wilkin's ruling, which followed a rare bench trial of a class action, correctly concluded that the NCAA had no pro-competitive justification for imposing such caps under the so-called rule of reason analysis.

Thanks for reading Critical Mass! Stay safe, and I will be back next week