Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. "Phony" and "obnoxious" are words a judge used to describe a $19 million class action settlement for Harvey Weinstein's victims. Find out which law firms, and defendants, showed up most often in Lex Machina's tort data. The federal judge in the opioid MDL is in the hot seat again, defending his decisions before the Sixth Circuit.

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

Judge Wipes Out Weinstein Class Settlement

Twenty minutes.

That's how long it took U.S. District Judge Alvin Hellerstein to reject a proposed $19 million class action settlement for victims of media mogul and convicted rapist Harvey Weinstein. At a telephonic hearing on Tuesday, the judge called the settlement "phony."

Yikes. And that was just at the preliminary approval stage.

The move was a big setback for New York Attorney General Letitia James and plaintiffs' attorneys Elizabeth Fegan (FeganScott) and Steve Berman (Hagens Berman) — who, by the way, also had to revise a $240 million class action settlement for victims of former University of Southern California campus gynecologist George Tyndall before getting final approval.

So what happened? First off, Hellerstein called a defense fund for Weinstein's legal costs, paid for by insurance, "obnoxious," according to Variety. He also appeared to have concerns that class members didn't have identical damages. For some, Weinstein allegedly raped them; others had just met him. That's a common debate in settlements over sexual abuse: lawyers often diverge over whether such claims are more appropriate for individual lawsuits, rather than class actions, because of the individual experiences of each victim.

Tom McParland, my colleague who covered the hearing, told me:

"Hellerstein had said he wouldn't grant class cert because the plaintiffs weren't similarly positioned, and I think he saw the deal as an end run around the cert issue. Hence the 'phony' quote."

Lex Machina Tallies Tort Damages at $26B Over 10 Years

Lex Machina came out with another legal analytics tool, this time focused on torts. The LexisNexis company collected 192,000 tort cases pending in federal district courts since 2009 to the present. According to the data, damages totaled nearly $26 billion over that period, including $9 billion in punitive damages.

A July 9 press release defined torts as "the friction of everyday life," such as slip and fall cases and lawsuits over car crashes, medical malpractice, premises liability and personal injuries. Lex Machina tagged three major mass torts: the 9/11 attacks, the 2010 Deepwater Horizon oil spill and the environmental cases tied to a Doe Run lead smelter in Peru. The category excludes products liability matters, which Lex Machina analyzes as a separate category.

The data revealed the top law firms based on the number of tort cases from July 1, 2019, through July 10, 2020: Maron Marvel Bradley, Hunton Andrews Kurth and The Nations Law Firm. The top defendants in premises liability, which legal data expert Anne Wise Kann (Lex Machina) told me comprise 47,000 cases, were Wal-Mart Stores, Target and Home Depot.

Kann told me the cases against retailers don't surprise her, but here's what did: the amount of lawsuits brought against the federal government under the Federal Tort Claims Act. She said:

"We did see a great deal of medical malpractice cases under the Federal Torts Claim Act coming out of the VA hospitals, and a fair amount against the U.S. Postal Service I wasn't expecting to see."

Judge: 'Dangerous Fiction' in the Opioid MDL

U.S. District Judge Dan Polster is back before the Sixth Circuit defending himself after the defendants in a high-profile opioid trial moved, once again, to toss him from the massive multidistrict litigation.

A quick backgrounder: Last year, the major drug distributors alleged he had shown bias toward the plaintiffs, but the Sixth Circuit refused to disqualify him. The distributors settled, but a dozen pharmacies set to go to trial on Nov. 9 petitioned the Sixth Circuit this year, challenging Polster's rulings. The Sixth Circuit, on April 15, found the first one was a "clear abuse of discretion," mooting the others.

The update: On June 30, the pharmacies filed a motion to enforce the Sixth Circuit's mandate and reassign the MDL to another judge largely because Polster limited the upcoming trial to a public nuisance case against the pharmacies. "The district court's recent conduct only magnifies the appearance of partiality that has tainted this litigation," they wrote.

Polster, in a July 7 filing, insisted he had complied with the Sixth Circuit's mandate. Then he added this:

"To state it plainly: the assertion by petitioners that any of my decisions are 'tainted' by 'partiality,' and particularly that I have 'maneuvered' the litigation so that I can force a pre-ordained result….is dangerous fiction," he wrote.

Here's what else is happening:

Study Up: Colleges and universities are gearing up for a litigious fall semester, ensuring that the coronavirus doesn't spread onto their campuses and, if it does, and students are sent home, girding for more class actions seeking tuition refunds. Among other things, schools are redrafting housing contracts and contemplating arbitration agreements with their students.

Mask Melee: A defendant in an upcoming asbestos trial in Oakland, California, questioned whether prospective jurors should wear face masks. Fryer-Knowles Inc., which is set to begin voir dire on Wednesday, filed a July 9 petition to the California Supreme Court suggesting jurors "may give one answer while smirking or smiling under their masks." The petition asked for jury selection rules to be applied statewide to avoid "a patchwork of inconsistent procedures." The California Supreme Court denied the petition on July 10.

Food Fight: Public Justice had hoped to revive one of the first cases to address an employer's legal obligations to keep its employees safe during the COVID-19 pandemic. The case alleged Smithfield Foods failed to protect its workers at a meat processing plant in Missouri. U.S. District Judge Gregory Kays had dismissed the case, concluding that OSHA had jurisdiction. On Tuesday, Kays refused to reconsider his decision, citing the U.S. Supreme Court's May 29 ruling that deferred to public health officials in striking down a San Diego church's challenge over California Governor Gavin Newsom's limits on church services due to COVID-19.

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