Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. An appeals court slashed a record $4.7 billion talc verdict, but left billions against Johnson & Johnson for its "evil motive or reckless indifference." A federal judge ruled that the state of California can't warn consumers about Roundup's ties to cancer. Why the COVID-19 pandemic might not create a ceaseless caseload.

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$4.7B Talc Verdict Cut, But Billions Remain

A Missouri appeals court slashed a $4.7 billion talcum powder verdict to $2.1 billion on Tuesday, concluding that 17 of the 22 women who alleged in a single lawsuit that they got ovarian cancer from Johnson & Johnson's baby powder lacked jurisdiction to sue in Missouri. The reason: they weren't from Missouri.

But here's the interesting part: Even though the panel reversed as to Johnson & Johnson, it upheld the verdict for 15 of those same women as to Johnson & Johnson Consumer Companies Inc., a subsidiary, because it had a contract with a manufacturer called Pharma Tech, which had a plant in Missouri. That's an important takeaway from the 83-page ruling, because it focuses on the jurisdictional standard set forth in the U.S. Supreme Court's Bristol-Myers Squibb v. Superior Court of California decision—a key 2017 holding that doomed many of other Missouri talc verdicts on appeal.

There's also this: Tuesday's opinion reduced punitive damages but refused to toss them altogether—more than $1.6 billion, to be exact. The opinion concluded that Johnson & Johnson's conduct was "outrageous because of evil motive or reckless indifference."

That leaves a pretty hefty verdict against Johnson & Johnson.

David Logan (Roger Williams School of Law), who's been following the talc cases, told me the ruling was a "huge victory" for the plaintiffs. As for Johnson & Johnson, which last month announced it would discontinue talc-based baby powder sales, he said:

"While, by itself, it probably doesn't determine your macro strategy for this or all the litigation, it certainly is bad news and has got to be taken into consideration when they decide how hard they want to fight. They ceded the factual predicate: They're not putting talc in their product anymore."

Judge: No Cancer Warning on Roundup

A federal judge granted an injunction against California to prevent the state from slapping a warning label on Monsanto's Roundup and other pesticides containing glyphosate, a chemical listed as carcinogenic under Prop 65. The decision is a win for Bayer, which owns Monsanto, and several agricultural groups that brought the case in 2017. Philip Perry (Latham & Watkins) represented Monsanto in the case.

After temporarily halting California's efforts in 2018, U.S. District Judge William Shubb concluded on Monday that a Prop 65 warning was "misleading" given that the EPA and other regulatory agencies found glyphosate to be safe.

Sherman "Tiger" Joyce (American Tort Reform Association) had this to say about the ruling:

"Judge Shubb's ruling this week is a huge win for our court system. Juries should be able to trust that the evidence they are presented with in court is trustworthy, sound science, and thanks to Judge Shubb, we are one step closer to a more fair system."

Will the Coronavirus Create a Continual Caseload?

The COVID-19 pandemic has spawned a slew of lawsuits, including several class actions and wrongful death cases, which could keep lawyers busy for some time to come.

Or maybe not?

I spoke to Daniel Weiner (Hughes Hubbard & Reed), head of the complex business disputes practice and co-head of the litigation practice at his firm. He said several companies, facing their own financial struggles, have little interest in long and expensive litigation, whether it's lawsuits related to COVID-19 or not.

"They're looking at ways to resolve them, and I'd expect to see an uptick in early mediation and ways to resolve that. We're seeing that already. They'll take an early shot at getting rid of the case, but if it gets beyond motion to dismiss and you're slogging through document discovery and deposition discovery, it's not only the time it takes but it's a management distraction. A lot of times, management has to focus 100% on getting the company back on its feet. But after that, I'll expect to see, and have seen it already, some people are more interested in resolving things more quickly, because the price tag of litigation hasn't gone down, and people are looking to husband their case, and reduce their expenses."

Here's what else is happening:

Koh Probes: After rejecting the initial class action settlement over Yahoo's data breaches, U.S. District Judge Lucy Koh made the lawyers go back and try again. At a June 18 hearing on final approval of the revised $117.5 million deal, she had even more questions, mostly focused on the billing records that plaintiffs' lawyers submitted in support of their request for $30 million in attorney fees. Koh laid out her questions in this June 19 order, which gave plaintiffs' lawyers until Friday to come back with the answers.

Taking Off: More than 40 class actions have been filed against Spirit Airlines, Delta Air Lines and others over alleged failures to refund passengers after the COVID-19 pandemic canceled their travel plans, and one plaintiffs' lawyer has sought to create a multidistrict litigation proceeding for all of the cases. Nicholas Coulson (Liddle & Dubin), who claims to be involved in 12 of the cases, has asked for an MDL in Illinois, Georgia or Florida. Responses are due on July 9.

Burgers Burned: McDonald's workers who claim they were given doggie diapers and coffee filters as masks against the coronavirus won an initial ruling on Monday after a judge in Oakland, California, granted a temporary restraining order. The public nuisance lawsuit, filed last week, targets a McDonald's franchise, not the corporation, and is similar to a class action pending in Illinois, where workers at four McDonald's restaurant locations have made complaints about COVID-19 protections.

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