Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. A new letter pushing for changes in federal evidence rules cites "troubling trends" in 27 rulings in MDLs. A federal magistrate judge recommended against "snap removal" of hip implant cases—and warned of "behavior unbecoming of litigants." This lawyer appeared for Walmart in the first COVID-19 wrongful death case in the nation. 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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Thomas Sheehan is a partner in the Litigation Group of Phillips Lytle LLP in Buffalo, New York.

"Troubling Trends" in MDL Evidence?

Judges in dozens of multidistrict litigation cases have failed to follow federal rules of evidence, according to a letter submitted to an advisory committee last week. The letter, written by Thomas Sheehan and Joshua Glasgow (Phillips Lytle) and Eva Canaan (King & Spalding), cited "troubling trends" among 27 general causation opinions in MDLs, including an April 27 ruling in the talcum powder cases against Johnson & Johnson. The Judicial Conference Advisory Committee on Evidence Rules is reviewing a potential amendment to Rule 702, which federal judges use to determine whether to allow expert witnesses to testify in trials.

The letter highlights similar arguments from the defense bar in support of the first federal rules over MDLs. Among them: the inability to file an interlocutory appeal of key rulings that, because they are in MDLs, potentially impact on thousands of cases. A subcommittee of the Judicial Conference Advisory Committee on Civil Rules is reviewing the MDL proposals.

I took a look at the MDL subcommittee's work and found this update from April, which narrowed down its review to these areas:

>Early vetting of cases in an MDL. The subcommittee found that at least four judges had shifted from fact sheets to conducting an "initial census" of MDLs before them.

>Interlocutory appellate review of MDL rulings. Proponents of expanding such reviews cited "several recurrent critical issues—preemption and Daubert decisions on admissibility of expert testimony, for example—that could resolve most or all cases in the MDL."

One area that's off the table: third party litigation financing—an issue that, according to the subcommittee, "did not seem particularly pronounced in relation to MDL proceedings."

U.S. Magistrate Judge James Clark/photo by Carmen Natale

Judge Recommends Against "Snap Removals"

In a decision against "snap removals," a federal magistrate judge in New Jersey has recommended remanding more than a dozen hip implant cases. Monday's decision, by U.S. Magistrate Judge James Clark, comes as a House subcommittee heard testimony last year on the practice of snap removals, in which defendants immediately remove cases to federal court before receiving notice of service of a complaint.

Monday's ruling in a nutshell: The defendant, Stryker, relied on the Third Circuit's 2018 decision in Encompass Insurance v. Stone Mansion Restaurant, which was the first appeals court decision on snap removals, and a 2009 district court ruling called Tucci v. Hartford Fin. Servs. Grp. that found service completed only after the defendant actually received notice of it.

Clark called that a "novel combination." In a footnote, he added that whether Stryker evaded service on purpose does not matter, and Encompass could even allow it, but "the court cautions that plaintiff's allegations regarding defendant's conduct, if true, demonstrate behavior unbecoming of litigants."

Who Got the Work?

James Balog (O'Hagan Meyer) appeared this month for Walmart in the first wrongful death case filed over a case of coronavirus. Tony Kalogerakos (Injury Lawyers of Illinois) filed the suit on April 6 against Walmart on behalf of an employee at the store in Evergreen Park, Illinois, who died of coronavirus. The suit, in Cook County Circuit Court, claims Walmart did not provide enough precautions or personal protective equipment to its employees. Earlier this month, attorneys general from 12 states, including California, Connecticut, Delaware, Pennsylvania and Washington D.C., sent a letter to Walmart asking for better COVID-19 protections for its employees and customers.

Here's what else is happening:

Not Lovin' It: As it fights a class action brought by employees in Chicago, McDonald's was hit with a new lawsuit on Tuesday—this time, in Oakland, California. The new suit, filed by Barbara "B.J." Chisholm (Altshuler Berzon), alleged the owners of a franchise created a public nuisance by allowing 23 people to get sick with COVID-19, including a 10-month-old baby. The case alleged the owners forced employees to work while sick and, at one point, told them to use doggie diapers and coffee filters as masks. McDonald's, meanwhile, is fighting a preliminary injunction in a case filed last month on behalf of the Chicago workers, who alleged inadequate protections from COVID-19 exposure. On Monday, Bill Garrett, senior vice president of operations at McDonald's, testified about the fast-food chain's COVID-19 protections for employees.

Charlotte Class: The Fourth Circuit affirmed a $2.65 million class action settlement involving former students who sued the now-defunct Charlotte School of Law. Some students had appealed the deal, which was a far cry from the $105 million it would have cost to refund a year's worth of tuition for the entire class. According to the appeals court opinion, $2.5 million of the settlement would come from an insurance policy, while the institution would contribute $150,000.

Lawsuit Love: Texans love big weddings. So, with the coronavirus pandemic uprooting the nuptials of Lone Star couples, wedding venues now face lawsuits seeking refunds. According to my colleague, Angela Morris, at least four separate lawsuits were filed in Houston, McKinney, Denton and Dallas, by either couples or their parents, which claim they were denied refunds for cancelled weddings. Wedding venues join a growing list of businesses facing class actions over unpaid refunds, most prominently universities and airlines.

Thanks for reading Critical Mass! Stay safe, and I'll be back next week.