Welcome to Critical Mass, Law.com’s new briefing on class actions and mass torts. I’m Amanda Bronstad in Los Angeles. This Thursday, two appeals courts will hear oral arguments over some big hip implant and pelvic mesh verdicts. Also, Christopher Seeger defends his ties to a third party funder in the NFL concussion case, and a class action against Sea World is making a big splash.
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An Appealing Week
Thursday is shaping up to be a big day for oral arguments in mass tort appeals.
First Up: In Richmond, Virginia, Boston Scientific attorney Dan Rogers of Shook, Hardy & Bacon battles in the Fourth Circuit against Anthony Majestro of Powell & Majestro in Charleston, West Virginia in the appeal of an $18.5 million verdict – one of the largest pelvic mesh awards to date. Then, in New Orleans, two former U.S. solicitors general – Ken Starr and Paul Clement, now of Kirkland & Ellis – face off in the Fifth Circuit over a $502 million hip implant verdict against Johnson & Johnson’s DePuy Orthopaedics.
Why they’re a big deal: One argument in both cases challenges consolidated trials, which defense attorneys have argued are unfair and confuse jurors. In the Boston Scientific case, the award went to four plaintiffs, three of whom appealed (one settled her case on July 12). The hip implant award went to five plaintiffs. On Oct. 19, the 11th Circuit upheld a nearly $27 million pelvic mesh verdict against Boston Scientific that involved four people (plaintiffs cited that ruling in both appeals).
The panels: The 5th Circuit panel includes Judge Jerry Smith, who wrote an Aug. 31 decision finding that U.S. District Judge Ed Kinkeade had committed “grave error” in having hip implant trials in his Dallas courtroom that involved plaintiffs outside Texas. But Smith refused to halt the trial, which ended in a $247 million verdict last month.
One more thing: In the hip implant appeal, Johnson & Johnson’s lawyers also have accused plaintiffs lawyer Mark Lanier of concealing payments to two expert witnesses. And plaintiffs have challenged the constitutionality of the punitive damages cap, which reduced their award to $150 million.
Parsing Litigation Funding
Christopher Seeger, one of the lead plaintiffs attorneys in the NFL concussion case, is attempting to explain why he failed to disclose his previous ties to a litigation funder. Here’s my colleague Max Mitchell’soriginal story and his update. Seeger, who’s criticized third party lenders, sought to differentiate his own affiliation with Esquire Bank. He parsed over whether it’s a “loan,” for example, or an “assignment” of the claim. And he insisted that other lenders have unreasonable interest rates. Here’s Max’s take on the dispute:
“Given the particulars of the dispute – with Seeger being so vocally against the other third-party litigation funders and having a history with another funder – it’s not surprising Seeger’s making distinctions between the types of loans,” he said. “What will be very interesting to watch is how (or if) the other parties, specifically the other litigation funders, make this a major sticking point in the litigation.”
In Xarelto Verdict, a Plaintiff’s Win
A jury on Tuesday handed up an award of $27.8 million in the first Philadelphia bellwether trial over the blood thinner Xarelto. Here’s Max’s report. That’s a big shift for the plaintiffs attorneys, who lost the first three verdicts in the federal multidistrict litigation in New Orleans this year. Closing arguments got political on Friday, with attorneys referencing “fake news” and Michelle Obama (see here).
Lawsuits in Hurricanes’ Wake
This year’s hurricane season has left in its wake a trail of legal issues–particularly for Florida Power & Light Co.
Law.com’s Celia Ampel has this story about the company’s lawyers (Squire Patton Boggs and Boies Schiller Flexner) filing motions to dismiss cases, including some class actions, that blame the utility’s poorly maintained electrical poles and untrimmed vegetation for the loss of power following Hurricane Irma.
Here are a few more things to know:
➤ One Call: A New Jersey federal judge has refused to dismiss a class action alleging a single promotional call violated the Telephone Consumer Protection Act, even after the defendant, a gym called Work Out World Inc. (WOW), deposited $1,501 into the credit card account of the plaintiff to make amends.
U.S. District Judge Peter Sheridan cited the U.S. Supreme Court’s 2016 ruling in Campbell-Ewald v. Gomez, which barred defendants from making settlement offers that would “pick off” lead plaintiffs from class actions. “Here, it is apparent that WOW sought settlement with plaintiff in an attempt to thwart class certification,” he wrote.
➤ Drive Time: Los Angeles City Attorney Mike Feuer filed a lawsuitagainst Uber on Monday, alleging the San Francisco-based ride-hailing company violated California law by failing to promptly notify drivers about last year’s data breach. The city of Chicago, along with Cook County, Illinois, also sued Uber last week.
➤ Cold Water: SeaWorld is seeking sanctions against Covington & Burlingin a class action brought by San Diego consumers claiming they were duped into believing the park’s marketing about its orcas. Park lawyers at Norton Rose Fulbright insist the case brought frivolous claims to funnel confidential information to Earth Island Institute, an advocacy group that recruited “puppet plaintiffs.” My colleague Ross Todd has this story.
It’s no secret that the group is involved in the case. On the website of its International Marine Mammal Project, the group calls itself a consultant in the lawsuit. And according to the sanctions motion, the advocacy group sent one of the lead plaintiffs a DVD of the 2013 documentary “Blackfish” –which highlighted the plight of killer whales in captivity–and it has also produced its own video about SeaWorld’s marketing claims.