Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. In the debate over COVID-19 exposure liability, meat packing plants take up a big chunk of the concerns. A new class action says Ikea recalls are ineffective. Find out who got appointed to a diverse leadership team in the Zantac MDL.

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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Meat Plants Carved Out Over COVID-19 Lawsuits

Meat packing plants are front and center in the debate heating up over liability for COVID-19 exposure—the subject of a Senate Judiciary Committee hearing on Tuesday. Several meat plants have shut down amid coronavirus outbreaks, but, as some begin reopening this week, concerns of worker safety remain, according to this NPR report on Monday.

President Donald Trump's April 28 executive order, which required meat plants to remain operating to prevent food supply shortages, gives the Secretary of the U.S. Department of Agriculture the authority to follow the health guidelines of the CDC and OSHA to prevent COVID-19 exposure. But that guidance is voluntary, prompting attorneys general of the District of Columbia and 19 states, including California, Delaware, New Jersey, New York and Pennsylvania, to send a letter to Trump on Tuesday criticizing his failure to mandate such protections for workers at meat plants, where 10,000 workers have contracted the coronavirus and 45 have died.

Plant workers also have turned to the courts. Saltz Mongeluzzi & Bendesky filed a wrongful death lawsuit on May 7 on behalf of a 67-year-old worker at a JBS meat plant in Pennsylvania who died last month of COVID-19. An April 23 lawsuit alleged that Smithfield Foods created a public nuisance by failing to protect workers at a pork processing plant in Missouri. On May 5, U.S. District Judge Gregory Kays dismissed that case, concluding that OSHA had jurisdiction. He also declined to grant the plaintiffs' injunction, noting there was no imminent harm since the plant had instituted many changes, like providing masks and thermal screening.

He wrote:

"The court is not unsympathetic to the threat that COVID-19 presents to the plant's workers. But in conducting its analysis, the court must determine whether plaintiffs will suffer an actual, imminent harm if the injunction is denied. This is not the same as analyzing whether employees risk exposure, if they continue to work, and unfortunately, no one can guarantee health for essential workers—or even the general public—in the middle of this global pandemic."

Photo: Shutterstock

 

Suit Takes Aim at Ikea Recalls

Six months after reaching a $47 million settlement with Ikea over the death of a toddler crushed by one of its dressers, Feldman Shepherd filed a class action alleging the retailer's recall of the MALM dressers was faulty. The May 6 suit, also joined by Francis Mailman Soumilas, alleges Ikea has failed to refund consumers or directly notify them about the recalls in 2016 and 2017 of 8 million MALM chests and dressers, and 21 million additional products.

My colleague, Max Mitchell, told me that the refund case comes as little surprise:

"It seems to build somewhat off of the case that ended with the $46 million settlement, since that case involved a death that occurred after the first recall, and part of those allegations—and part of the reason that settlement was higher than the previous ones—were that the parents would have exchanged or fixed their dresser had they known about the recall."

Who Got the Work?

A federal judge in Florida has appointed 26 people to lead the multidistrict litigation over heartburn medication Zantac, including a "leadership development committee" that will provide "mentorship and experience," chaired by Melanie Muhlstock (Parker Waichman) and Carmen Scott (Motley Rice). Nearly half of the leadership team is women, and at least four are minority attorneys. Co-lead counsel are: Tracy Finken Magnotta (Anapol Weiss), Robert Gilbert (Kopelowitz Ostrow), Michael McGlamry (Pope McGlamry) and Adam Pulaski (Pulaski Kherkher).

Here's what else is happening:

Risperdal Reversal: A California court of appeal reinstated potentially 320 lawsuits filed over the antipsychotic drug Risperdal, partially reversing Johnson & Johnson's summary judgment win on federal preemption. Friday's ruling is the first substantive appeals court decision in the California state court cases, while juries in Pennsylvania have issued verdicts including an $8 billion award last year. The decision, which upheld preemption as to two other grounds, found that there was no "clear evidence" the FDA would have rejected a labeling change that warned of a link between Risperdal and elevated blood prolactin levels.

Football Fees: The Third Circuit affirmed $112 million in attorney fees in the NFL concussion settlement, including $51 million to Seeger Weiss, whose partner, Christopher Seeger, was co-lead counsel. U.S. District Judge Anita Brody awarded the rest of the fees to 20 other firms as part of the nearly $1 billion settlement. The appeals court reversed her $350,000 grant to lawyers for a group of objectors who had sought $20 million.

Facebook Settlement: Facebook reached a proposed $52 million settlement to resolve claims brought by its content moderators who review disturbing material on the social media site. The deal, filed with the court on Tuesday, gives $1,000 in medical screening to each class member and provides mental health clinicians during employee shifts. Joseph Saveri Law Firm, Burns Charest and the Law Office of William Most represented plaintiffs in California, Texas, Florida and Arizona.

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