Johnson & Johnson's $2B Talc Verdict Stands

Johnson & Johnson’s $2B Talc
Verdict Stands
“Johnson & Johnson has been defending against claims its talc-
based powders cause cancers for years, and, with a new ruling
against the drugmaker in Missouri, it’s preparing to challenge
a massive verdict at the U.S. Supreme Court,” reports Eric
Sagonowsky in Fierce Pharma.

“After a Missouri appeals court this summer lowered a 2018
talc verdict against the drugmaker to $2.11 billion, J&J
pledged to appeal to the state’s Supreme Court. That court has
now refused to take up the appeal—and J&J says it’ll take its
case higher.”

“But it’s far from certain to get a hearing at the U.S.
Supreme Court, either. Of the 7,000 cases it’s asked to review
each year, the high court takes up 100 to 150 of them,
according to U.S. government figures.”

                      Read the article.

Former KAABOO Owner Satisfies
$7 Million ‘Thunder on the
Mountain’ Judgement
“Kansas promoter Brett Mosiman was ready to chase former
KAABOO owner Bryan Gordon to the end of the earth to collect a
$7 million judgement delivered by a Kansas jury in February,
but that will no longer be necessary after the men settled

their claims last week over the canceled 2015 Thunder on the
Mountain festival in Ozarks, Ark.,” reports Dave Brooks in
Billboard’s Touring.

“Mosiman had filed a second lawsuit against Gordon in San
Diego in December accusing the Madison Companies chairman of
trying to hide his assets after selling KAABOO late last year.
Mosiman was also working with his attorney to prepare their
enforcement option for the Kansas judgment, but neither remedy
will be needed after Mosiman filed a notice with the Kansas
court Wednesday saying that Gordon and the companies he
controls have satisfied the terms of the judgement ‘in an
amount of which has been fully agreed to by the parties.'”

“Mosiman is the founder of the Wakarusa festival and had been
hoping to revive the Thunder on the Mountain series when he
was approached by Gordon and his business partners Seth Wolkov
and Robert Walker from the Denver-based Madison Companies in
2014.”

                      Read the article.

U.S. to Pay SC $600M in
Settlement Over Remaining
Plutonium at Savannah River
Site
“Attorney General Alan Wilson announced Monday that the State
of South Carolina and the United States have reached a
settlement to end litigation related to weapons-grade
plutonium that was relocated to the Savannah River Site in the

early 2000s,” reports WSPA Staff in WSPA News.

“According to the settlement, the U.S. will pay South Carolina
$600 million immediately and the Department of Energy says
they will remove the plutonium by 2037.”

“The settlement ends six years of litigation related to the
remaining 9.5 metric tons of weapons-grade plutonium.”

                      Read the article.

AG Jennings Announces Honda
Airbag Settlement
“Attorney General Kathy Jennings today announced an $85
million multistate settlement with American Honda Motor Co.,
Inc. and Honda of America Mfg., Inc., over allegations Honda
concealed safety issues related to defects in the frontal
airbag systems installed in certain Honda and Acura vehicles
sold in the United States. The systems were designed and
manufactured by Takata Corporation, a long-time Honda
supplier, and were first installed in Honda vehicles in the
2001 model year,” was posted in Delaware.gov’s news feeds.

“The settlement, reached between the attorneys general of 43
states and the District of Columbia and Honda, concludes a
multistate investigation into Honda’s alleged failure to
inform regulators and consumers of that the frontal airbags
posed a significant risk of rupture, which could cause metal
fragments to fly into the passenger compartments of many Honda
and Acura vehicles. The ruptures have resulted in at least 14
deaths and over 200 injuries in the United States alone.”

Read the article.

Second  Circuit   Overturns
Tiffany’s   $21M   Judgment
Against Costco in Trademark
Battle
“Despite winning a relatively swift victory in the district
court, Tiffany & Co. will not be collecting its $21 million
judgment against Costco Wholesale Corp. anytime soon. In a 3-0
decision on Aug. 17, 2020, the U.S. Circuit Court of Appeals
for the Second Circuit vacated the district court’s judgment
for Tiffany, holding that factual questions improperly decided
by the court instead should have gone to a jury,”
report Andriana Shultz Daly and Stephanie A. Martinez in
McGuireWoods’ Resources.

“The dispute between Tiffany and Costco began in 2012 when
Tiffany, a well-known purveyor of high-end jewelry, discovered
that Costco was using ‘Tiffany’ on point-of-sale signs for
certain of its otherwise ‘unbranded’ diamond rings. Tiffany
demanded that Costco cease use of ‘Tiffany’ in connection with
its rings, and Costco complied. Costco also notified
purchasers of such rings that Costco used ‘Tiffany’ merely to
indicate that the rings had Tiffany-style settings, and
reminded customers that they could return their rings at any
time. Still, Tiffany sued for trademark infringement and
counterfeiting. In response, Costco asserted that its use of
‘Tiffany’ constituted descriptive fair use.”

                      Read the article.

Daimler Agrees to U.S. Diesel
Settlements Worth Nearly $3
Billion
“Daimler said on Thursday it has reached agreements costing
nearly $3 billion to settle civil investigations by U.S.
regulators and lawsuits from vehicle owners stemming from a
long-running probe into software to cheat diesel emissions
tests,” report David Shepardson and Emma Thomasson in Reuters
Environment.

“The settlements in principle address civil and environmental
claims tied to 250,000 U.S. diesel passenger cars and vans in
the United States and include claims from the Environmental
Protection Agency, Justice Department, California Air
Resources Board (CARB) and the California Attorney General’s
Office.”

“The German carmaker said it expects the costs of the
settlements with U.S. authorities will total $1.5 billion,
settling with owners will cost about $700 million and ‘further
expenses of a mid three-digit-million EUR (euro) amount to
fulfill requirements of the settlements.'”

                      Read the article.

Pharmacy to Pay $3.5 Million
to Resolve U.S. Claims it
Helped Teva Pay Kickbacks
“A Florida-based specialty pharmacy will pay $3.5 million to
resolve allegations it served as a conduit for a Teva
Pharmaceutical Industries Ltd subsidiary to pay kickbacks to
Medicare patients, the U.S. Justice Department said on
Thursday,” reports Nate Raymond in Reuters’ U.S. Legal News.

“The settlement with Advanced Care Scripts Inc was the latest
to result from an industry-wide U.S. probe of drugmakers’
financial support of patient assistance charities that has
resulted in nearly $921 million in settlements.”

“Representatives for Teva and ACS did not respond to requests
for comment. Teva has said it has been cooperating with the
investigation since first receiving a subpoena from the U.S.
Attorney’s Office in Boston in 2017.”

                      Read the article.

Ninth Circuit Holds Proof of
Injury   Not  Required   for
Unclean Hands
“When defending a Lanham Act claim brought by a competitor,
the doctrine of unclean hands—the lawyerly version of ‘But
they did it too!’—can be a case-dispositive argument. Last
month, the Ninth Circuit made it a bit easier to establish

this defense, holding that a defendant arguing unclean hands
need not prove that the plaintiff’s unclean conduct caused
‘actual harm,'” write Michael Sochynsky and Jonah M. Knobler
in Patterson Belknap’s blog.

“The unclean hands defense is based on the equitable maxim
that ‘he who comes into equity must come with clean hands.’ …
Its roots lie in the English Court of Chancery—a royal ‘court
of conscience’ that was able to grant relief in situations
where the hidebound courts of law could not. Chancery’s unique
focus on conscience and morality meant that plaintiffs seeking
its aid were held to a high standard of behavior.”

“Unclean hands remains a viable defense today in the context
of equitable claims.”

                      Read the article.

Bayer Asks Appeals Court to
Again Cut Roundup Damage
Award Owed to California
Groundskeeper with Cancer
“Bayer is asking a California appeals court to trim $4 million
from the amount of money it owes a California groundskeeper
struggling to survive cancer that a trial court found was
caused by the man’s exposure to Monsanto’s Roundup
herbicides,” reports Carey Gillam in U.S. Right to Know.

“In a ‘petition for rehearing’ filed Monday with the Court of
Appeal for the First Appellate District of California, lawyers

for Monsanto and its German owner Bayer AG asked the court to
cut from $20.5 million to $16.5 million the damages awarded to
Dewayne ‘Lee’ Johnson.”

“The appeals court ‘reached an erroneous decision based on a
mistake of law,’ according to the filing by Monsanto. The
issue turns on how long Johnson is expected to live. Because
evidence at trial found Johnson was expected to live “no more
than two years,” he should not receive money for future pain
and suffering allocated for any longer than two years –
despite the fact that he continues to outlive predictions, the
company argues.”

                      Read the article.

Bayer Proposes $10 Billion
Settlement For Three Chemical
Lawsuits
“Bayer recently announced its intent to settle all Roundup,
dicamba drift and Polychlorinated biphenyls (PCB) water
litigation cases between $10.1 and $10.9 billion. The company
says this settlement is not an admission of fault, but rather
a cost-effective way to end the ‘distraction,’ reports Sonja
Begemann in AG Web’s Business.

“The decision to resolve these cases was driven by our desire
to bring greater certainty to the farmers we serve every day,”
says Liam Condon, Bayer president of the crop science
division.”

“These, and all our products, bring to growers and other users

around the world the ability to help them economically and
sustainably produce a healthy crop.”

                      Read the article.

Ninth Circuit Vacates $24M
Class Judgment on Standing
and Predominance Grounds
“Class actions present significant risk, because a certified
class exposes a class defendant to class-wide liability,”
warns James Bogan III of Kilpatrick Townsend & Stockton LLP in
JD Supra.

“Most defendants agree to settle rather than face the risk of
a class verdict. But sometimes a class defendant will roll the
dice, hoping it will prevail either at trial or on appeal. In
a recent case, Bahamas Surgery Center, LLC v. Kimberly-Clark
Corporation, …, the class defendants did just that. Although
the district court entered judgment against the class
defendants in the amount of $24 million, they were ultimately
saved on appeal by a split panel of the Ninth Circuit Court of
Appeals.”

“By way of background, Bahamas Surgery Center, LLC (Bahamas),
sued Kimberly-Clark Corporation (KC) and Halyard Health, Inc.
(Halyard), for fraud, asserting that KC and Halyard
misrepresented the efficacy of surgical gowns in terms of
blocking the spread of pathogens. Bahamas presented evidence
that the surgical gowns had been labeled as compliant with a
specific standard going to that efficacy – the Association for
the Advancement of Medical Instrumentation (AAMI) Liquid

Barrier Level 4 standard – when in fact the gowns did not meet
that standard.”

                      Read the article.

Courts Continue to Analyze
How COVID-19 Orders Affect
Private Party Rights
“Three recent decisions demonstrate how the legal landscape
continues rapidly to change and evolve in response to
COVID-19. These decisions highlight certain developing
uncertainties in the law, including the impact of COVID-19-
related executive and administrative orders on the rights of
private parties,” report Jonathan P. Wolfert, Eddy Salcedo,
Owen R. Wolfe, and Sarah Fedner in Seyfarth’s News & Insights.

The takeaways from these recent decisions are that “These
decisions reflect the importance of staying up to date not
only on various executive and administrative COVID-19 orders
and anticipating the effects of those orders on pending
litigation, but also Court decisions interpreting such orders
or otherwise dealing with the effects of COVID-19. The legal
landscape will continue to be affected as courts grapple with
the continuing fallout from the pandemic.”

                      Read the article.

District Court Says Cruise
Ship    Passengers    Cannot
Recover    For   “Fear    of
Contracting COVID-19”
“Judge Klausner, sitting in the Central District, dismissed a
claim brought by a class of Princess Cruise Line passengers
premised on their exposure to COVID-19 while aboard the now-
infamous cruise ship that departed San Francisco for Hawaii on
February 21, 2020,” reports Patrick Hammon in McManis
Faulkner’s Blog.

“Plaintiffs, Ronald and Eva Weissberger, while still on the
ship, filed suit against the cruise line on March 9, as the
Grand Princess docked at the Port of Oakland alleging a claim
for negligence. Although the Weissbergers did not test
positive for COVID-19 (or suffer symptoms of the disease),
they sought to recover damages for the emotional distress they
suffered based on their fear of contracting coronavirus while
quarantined on the ship.”

“Defendant, Princess Cruise Lines, moved to dismiss, arguing
Plaintiffs failed to state a claim. The district court
explained, as an initial matter, that Plaintiffs’ negligence
claim had to be considered as a claim for negligent infliction
of emotional distress (NIED), since Plaintiffs did not seek to
recover for any physical harm, instead alleging only that they
suffered emotional distress and mental anguish associated with
their ‘of developing COVID-19’ on the ship.”

                      Read the article.

Real Problems with Virtual
Jury Trials: The Shallowing
of Jury Pools
“As the COVID-19 pandemic continues with no certain end in
sight, courts and lawyers alike must come to terms with the
possibility that the conduct of trials may require dramatic
changes to keep the wheels of justice turning,” write Thomas
B. Fiddler and Vincent N. Barbera in White and Williams’ News
& Resources.

“While bench trials (by video, and in some instances, live)
present their own logistical challenges and strategic
considerations, the prospect of video trials by jury adds
additional layers of complexity. One threshold factor that
must be carefully considered is the impact of video jury
trials on the jury pool itself.”

“Significant change to any longstanding practice has
consequences, both good and bad, and a shift to conducting
jury trials remotely is no exception. Replacing the need to
report to court for jury duty with the need to report to one’s
personal computer may help remove barriers associated with
transportation, but invariably presents a host of new
questions and challenges. What about potential jurors who do
not own or have access to the necessary technology to
participate? What about potential jurors who do not possess
the necessary skills to operate the technology required to
fully and appropriately participate? These and similar
questions highlight an unintended, but likely consequence: the
de facto exclusion of jurors who do not own the requisite
assets or possess the necessary technical skillset to qualify

for remote jury service. In turn, there is a realistic
possibility that neither plaintiffs nor defendants will have
access to the jury of their choosing or a jury of ‘their
peers.'”

                      Read the article.

No End in Sight for Business
of ERISA Litigation
“ERISA litigation continues to flourish thanks to veteran
plaintiffs’ attorneys refining their strategies, newcomers
entering the ERISA arena using traditional arguments and
lawsuits being filed against smaller plans,” reports Robert
Steyer in Pensions & Investments’ Courts.

“For the veteran plaintiffs’ attorneys, their lawsuits
‘generally are sophisticated and appear to respond to
roadblocks from decisions that have gone against plaintiffs,’
Thomas E. Clark Jr., a St. Louis-based partner and chief
operating officer of Wagner Law Group who represents sponsors,
wrote in an email.”

“For the new crop of law firms filing suits, “these complaints
appear to generally be cookie cutter and borrow from legal
theories from earlier lawsuits,” he wrote.”

“Recent defendants include Costco Wholesale Corp., Paychex
Inc., KeyCorp, Land O’ Lakes Inc., Estee Lauder Inc., Oshkosh
Corp., Automatic Data Processing Inc., MedStar Health Inc.,
Astellas US LLC, Quest Diagnostics Inc., Universal Health
Services Inc., Schneider Electric Holdings Inc., CDI Corp.,
and CommonSpirit Health.”

“And that’s only since Memorial Day.”

                      Read the article.

Sutter Health’s Request to
Delay $575 Million Settlement
Is Denied
“Despite citing the surge in coronavirus cases and economic
fallout from the pandemic in California, Sutter Health failed
to persuade a state judge on Thursday to delay the $575
million settlement it reached last December over accusations
of price gouging and monopolistic practices,” reports Reed
Abelson in The New York Times’ Health.

“Sutter, which has already received hundreds of millions of
dollars in federal coronavirus aid, argued it needed three
more months to decide whether it should try to abandon the
settlement terms. The sprawling health system in Northern
California warned that the costs of the pandemic might force
it to raise rates for patient care beyond caps set by the
proposed settlement.”

“But Superior Court Judge Anne-Christine Massullo was not
swayed. While sympathetic to concerns over the rising number
of infections in California, the judge refused to give Sutter
more time, scheduling a hearing next month on the preliminary
agreement. Sutter Health could still try to block final
approval of the settlement, which also prevents it from
forcing insurers to include all of its health facilities in
insurance policies rather than coverage for some.”

Read the article.

Watch Your Stipulation! Award
Confirmed Despite Arbitrator
Exceeding Contractual Scope
of Authority
“Once parties agree to arbitrate, courts generally defer to
the arbitrator’s judgment regarding resolution of a dispute,”
discuss Jim Archibald, Amandeep S. Kahlon & Luke D. Martin in
Bradley’s BuildSmart Arbitration. “The prevailing approach in
many states is to not set aside an arbitration award unless
the arbitrator clearly exceeded his or her authority and to
exercise every reasonable assumption in favor of the validity
of an award. The Minnesota Court of Appeals recently confirmed
this view in Faith Technologies, Inc. v. Aurora Distributed
Solar LLC.”

“In that case, the court upheld the arbitrator’s award for
equitable relief, despite the parties’ contract prohibiting
the arbitrator from providing any equitable remedy. The court
found the parties’ stipulation to arbitrate all disputes
effectively waived the contractual prohibition on equitable
relief, especially where the equitable claim for abandonment
was pled and not objected to until after the final award.”

“In 2016, Aurora hired Biosar to design and construct solar-
power generators for a project in Minnesota. Biosar hired
Faith Technologies to provide labor, materials, and services
for the project. The EPC contract between Aurora and Biosar
permitted arbitration to resolve disputes arising out of the

contract but prohibited the arbitrator from ‘awarding
nonmonetary, injunctive, or equitable relief.'”

                      Read the article.

Lawyer Ignored Them for Three
Years and Their $2.8M Legal
Malpractice Verdict Keeps
Shrinking
“The court opined that a $1.1 million judgment for Vernon and
Donyell Walters was too high and that the trial court will
have to try to find a more appropriate figure,” reports John
O’Brien in Legal Newsline.

“The $1.1 million figure, itself, was a reduction from the
jury’s original $2.8 million verdict, which the trial judge
noted was more than what the Waters had asked for.”

“Vernon Walters hired Tadd Parsons to represent him and his
wife in a lawsuit against Kansas City Southern Railway
Company, but it was dismissed with prejudice in 2010 for
failure to prosecute, failure to comply with discovery
obligations and fraud upon the court.”

“Parsons did not relate what had happened with the case to his
clients. Three years after its dismissal, with the Walterses
believing the case was still pending, Parsons fabricated a
settlement offer of $104,000 from KCSR and advised them to
take it.”

                      Read the article.

US Attorney Bianca Forde Sues
Cops for Wrongful Arrest in
NYC
“A federal prosecutor was wrongfully arrested when cops
slapped the cuffs on her for advising her boyfriend of his
legal rights during a drunk-driving stop, a new lawsuit
alleges,” reports Priscilla DeGregory in the New York Post’s
Metro.

“Assistant US Attorney Bianca Forde was arrested on Nov. 30
when her boyfriend Joseph Paul got pulled over for suspected
drunk driving in Midtown Manhattan and was asked to take a
Breathalyzer test, according to a Manhattan civil suit filed
against officers Fidel Hernandez, Christophe Williams and
Weigand, whose first name was not included in the suit.”

“Forde, the passenger, allegedly said at the time ‘I’m a US
attorney. I’m his attorney — he doesn’t have to blow.'”

“Paul did anyhow and passed the breath test and wasn’t
arrested.”

                     Read the article.

Lawyer Who Told Client ‘I’m

Done’ Faces $300K Malpractice
Ruling
“A lawyer will stay on the hook for a $300,000 malpractice
verdict after walking out on a client who was unhappy with the
way settlement talks in a divorce were going,” reports John
O’Brien in Legal Newsline’s Attorneys & Judges.

“The California Fifth Appellate District affirmed a Stanislaus
County judgment against the Law Office of Leslie F. Jensen,
who told her client ‘I’m done’ shortly before the divorce
trial was to begin.”

“Jensen wanted Krista Masellis to accept an $800,000 offer,
even though valuations placed Krista’s share at $1.5 million
or more. Krista had urged Jensen to depose her soon-to-be-ex-
husband because she thought he might be hiding assets, but
Jensen never did.”

“When Jensen told Masellis she wouldn’t ask for more than
$800,000, even though Masellis wanted much more, Masellis told
her she didn’t have the client’s best interest in mind.”

                      Read the article.