Welcome to Critical Mass, Law.com’s new briefing on class actions and mass torts. I’m Amanda Bronstad in Los Angeles. As the year draws to an end, opioid litigation revs up: On Wednesday, a proposed plaintiffs attorney team that looks like a “Who’s Who” of the mass torts bar has moved to spearhead the federal multidistrict litigation – but not without some pushback. Lawyers in the NFL concussion case want to depose the expert who recommended caps on attorney fees in the landmark litigation. And the American Association for Justice came out with a first-time report of the worst corporate conduct of 2017 (think Wells Fargo, Equifax, Fox News and pretty much all of Wall Street.) And do you still have some gifts to buy this holiday season? Check out this list of gifts that might be just a bit too, well, dangerous.
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A Dream Team for Opioids MDL
More than 20 plaintiffs lawyers filed a motion on Wednesday to lead the federal multidistrict litigation over opioids – and the names would make anyone’s “best and brightest” list.
The proposed co-leads are Paul Hanly of Simmons Hanly Conroy, Joe Riceof Motley Rice and Paul Farrell of West Virginia’s Greene, Ketchum, Farrell, Bailey & Tweel, aided by an executive committee made up of some pretty prominent lawyers in the mass torts bar: Burton LeBlanc, Russell Budd, Elizabeth Cabraser, Christopher Seeger, Ellen Relkin, Mark Lanier, and so on and so forth…
Here’s my story on the motion.
Apparently, a voice vote for unanimous consent that took place at a Monday meeting at the Hilton Cleveland Downtown Hotel wasn’t all that unanimous. Tampa attorney John Yanchunis called it a “scripted performance” that “smacks of unfairness.”
“The ‘process’ used by this small group of counsel to self-select themselves and a group of others for various leadership positions in this multidistrict litigation was anything but open, transparent or fair,” wrote Yanchunis, of Morgan & Morgan, which represents several West Virginia counties and the state of Kentucky in opioid cases.
Two other lawyers, T. Roe Frazer of Frazer PLC in Nashville and J. Nixon Daniel of Pensacola’s Beggs & Lane, asked that a seat be added to the executive committee for a lawyer representing hospitals. And nine law firms — including Cleveland’s Climaco, Wilcox, Peca & Garofoli; San Diego’s Shepherd, Finkelman, Miller & Shah; and Philadelphia’s Fine, Kaplan & Black – suggested a separate plaintiffs steering committee for third-party payors like health care insurers and union pension funds.
One key role to watch: Whoever ends up as liaison counsel to the state courts, where many lawyers have preferred to pursue opioid cases. Jay Edelson, of Edelson PC, who is leading a team of lawyers planning to file opioid suits in state courts told me “we like the proposed MDL leadership team and we will certainly look for ways to make sure that our respective efforts are acting in collaboration.”
NFL Lawyers Want Instant Replay
Last week, Harvard Law School professor William Rubensteinrecommended that lead plaintiffs firms in the $1 billion NFL concussion settlement have their attorney fees capped at 15%. So, no surprise, lawyers from five firms filed motions this week wanting to depose him.
Here’s Law.com’s Max Mitchell with the update.
Max’s story says the motions ask U.S. District Judge Anita Brody to reconsider her order earlier this month barring depositions of Rubenstein, who was asked to review class counsel’s request for $112.5 million in fees. Provost Umphrey and Locks Law Firm are among the firms bringing the motions.
The annual “Judicial Hellholes” report from The American Tort Reform Association might have some competition: The nation’s largest plaintiffs bar group now has a survey of its own – thought not quite with the same catchy name. Here’s the “Worst Corporate Conduct of 2017,” a report from the American Association for Justice.
Targeted by the report as worst offender was McKesson Corp., a distributor of prescription opioids. Others on the list were Equifax for its massive data breach, Wells Fargo for its “seemingly never-ending series of schemes to rip off its customers,” and Wall Street’s lobbying push to reverse an anti-arbitration rule imposed by the Consumer Financial Protection Bureau.
The report also noted the settlements Fox News paid to resolve sexual harassment and discrimination claims.
“It’s just something we thought of this year,” AAJ researcher David Ratcliff told me. “It’s not ‘Judicial Hellholes,’ but we hope it’s better written.”
And here’s a bit more news:
Talc Turns: After a string of double-digit verdicts last year, Johnson & Johnson turned the tide in 2017 in the litigation alleging its talcum powderproducts caused women to get ovarian cancer. Here’s my story on how they did it. And this week, to top it off, a Missouri Court of Appeals denied a plaintiffs’ petition to reconsider its reversal of a $72 million verdict in 2016 — the very first talc award. In a statement, lead plaintiffs attorney Ted Meadows of Beasley Allen said he planned to go to the Missouri Supreme Court, citing “fundamental issues of due process.”
A Fine Mesh: Johnson & Johnson’s Ethicon unit has asked a Philadelphia state court judge to ease their path to expediting its appeal of his order tossing only one of the nearly 120 pelvic mesh cases, despite the U.S. Supreme Court’s Bristol-Myers Squibb v. Superior Court ruling this year. Here’s Max’s report. Drinker Biddle’s Melissa Merk, Ethicon’s attorney, called it a “substantial issue of jurisdiction.”
Into the Breach: Was 2017 the year of the data breach? Law.com’s Rhys Dipshan has listed the eight most significant breaches of the year. Of course, Equifax and Uber are on there. But so are the U.S. Securities and Exchange Commission and the hack that hit DLA Piper.
Check It Twice: Before you get to that last minute holiday shopping, check out this list on www.classaction.com (run by Morgan & Morgan) of the 10 most dangerous gifts you could buy. “Smart toys,” like the Furby Connect, could place children’s privacy at risk, the report said. Drones “have malfunctioned and collided with people,” requiring stitches, and some fidget spinners contain unsafe levels of lead or may burst into flames according to the list.
How about a nice fruit cake instead? Happy holidays!