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Ethicon Media Monitoring 6/28/2018
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Critical Mass: Class Action Critic Gets Green Light to Target 'Selfish Deals'. Plus, A New Lit Funder Avoids Class Actions and Mass Torts
Jun 27, 2018 | Law.com
By Amanda Bronstad
... Second: The Pennsylvania Superior Court upheld a pelvic mesh award of $12.8 million (see here). The ruling against Johnson & Johnson’s Ethicon Inc. unit provided the first opportunity for the state’s appeals courts to address the U.S. Supreme Court’s 2017 ruling in Bristol-Myers Squibb v. Superior Court of California. -
Globetrotting Jill is bringing hope to mesh survivors
Jun 27, 2018 | Daily Record
A globetrotting giraffe is bringing comfort to mesh-injured women the world over – and a Paisley mum-of-two is hoping it can work its magic on her.
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Jun 27, 2018 | Law.com
By Amanda Bronstad
Welcome to Critical Mass, Law.com’s weekly briefing on class actions and mass torts. I’m Amanda Bronstad in Los Angeles. The 7th Circuit allowed objector Ted Frank to go after other objectors over what he called “objector blackmail.” Find out why this newly launched litigation finance firm won’t back mass torts or class actions. And a Chamber group’s president looks back on 20 years of legal reform.Objecting to the Objectors
A federal appeals court gave objector Ted Frank the green light to go after … no, not plaintiffs’ lawyers … other objectors! As I reported in this story (see here), the 7th Circuit reversed an Illinois district judge’s order rejecting a request from Frank (of the Center for Class Action Fairness) to reopen a class action so that he could find out if three other objectors had gotten secret side payments to drop their appeals to the settlement. Because if they had, said Frank, who makes a living challenging such settlements, that money should have gone to the class.
On the surface, the 11-page ruling in Pearson v. NBTY is largely procedural.
But here’s why it’s a big deal: So-called “objector blackmail” has become such a problem that the U.S. Judicial Conference’s Committee on Rules of Practice and Procedure published proposed amendments to force court approval of such payouts. It’s also noteworthy because it’s the same case made famous when 7th Circuit Judge Richard Posner, now retired, called the initial settlement a “selfish deal.”
Plaintiffs class action lawyer Jay Edelson (Edelson PC) wrote on Twitter:
Jay Edelson Retweeted (((tedfrank))) This was a HUGE win by @tedfrank and his team. The class action bar will be eagerly watching as this plays out before the district court. Great job combatting potential objector blackmail! #classactions
Edelson, by the way, brought his own RICO case against three objectors. A federal judge in Illinois dismissed those claims earlier this year. Frank cited that decision as a reason for his disgorgement claim to go forward.
“Disgorgement has the additional benefit that, unlike the attempted RICO action by plaintiffs in Edelson, it can be used only against bad-faith objectors without risk to good-faith objectors,” he wrote, in a notice before the 7th Circuit. Mass Torts, Class Actions? Not for this Lit Financier
A veteran in litigation finance has launched a new firm called Validity Capital, backed by up to $250 million primarily from private equity firm TowerBrook Capital Partners. Law.com’s Roy Strom has the story here.
Ralph Sutton, the former leader of IMF Bentham Ltd.’s U.S. operations, is launching the new firm in Chicago, New York and Houston with a team that includes lawyers from Kirkland & Ellis, Boies Schiller Flexner and Shipley Snell Montgomery.
It’s yet another example of the growing field of litigation finance, which, according to this report in The New York Times, now includes hedge funds backing personal injury lawsuits.
But don’t expect those cases in Validity’s portfolio. It’s sticking to commercial litigation. I had to ask Sutton: Why?
“We don’t know enough about the firms and the way they practice law and their underlying tort claims,” he said.
Fair enough. But tort reform that has required disclosures of litigation financing arrangements in the past year also focused on class actions, and that’s not on Validity’s radar, either. Sutton told me fee-splitting can become an issue in class actions. He said:
“Class actions are frequently brought in circumstances that are not always clear what the benefit is to the class. And that’s why they’re the subject of so much criticism. They can be meritorious and useful as a form of enforcement of the law, but they can also be abused. That’s not the case for commercial litigation.”
Chamber Group Turns 20
The U.S. Chamber of Commerce’s Institute for Legal Reform turns 20 years old today. President Lisa Rickard, who’s been there the past 15 years, talked to Corporate Counsel’s Sue Reisinger. Here’s the story.
So what’s changed in 20 years? Rickard mentioned litigation financing, attorney general lawsuits and class actions in Europe. But she added that the issue of class action reform has gotten more partisan. And even though legislative reforms are swinging in its favor, Rickard said the defense bar shouldn’t sit back and relax. “I liken dealing with the plaintiffs bar to playing whack-a-mole on the boardwalk,” she said in the story.
Here’s what else you need to know:
J&J Appeals: Law.com’s Max Mitchell reported on two big mass tort verdicts in Philadelphia on appeal.
The first: Philadelphia Court of Common Pleas Judge Paula Patrick is urging the Pennsylvania Superior Court to uphold a Risperdal verdict of $70 million (see here). The award, which Johnson & Johnson’s Janssen Pharmaceuticals is appealing, was the largest in the Philadelphia litigation over Risperdal, an antipsychotic prescription medication.
Second: The Pennsylvania Superior Court upheld a pelvic mesh award of $12.8 million (see here). The ruling against Johnson & Johnson’s Ethicon Inc. unit provided the first opportunity for the state’s appeals courts to address the U.S. Supreme Court’s 2017 ruling in Bristol-Myers Squibb v. Superior Court of California.
Take It to the Bank: Lawsuits over a Georgia-based sperm bank’s failure to disclose a donor’s true medical history have continued to struggle because state law doesn’t recognize wrongful birth claims. Here’s Law.com’s latest report, which says Fulton County Superior Court Chief Judge Robert McBurney dismissed claims against the Xytex sperm bank. It was accused in about a dozen lawsuits of falsely stating that donor Chris Aggeles had a PhD in neuroscience and an IQ of 160 and failing to disclose that he had been convicted of burglary and diagnosed with schizophrenia.
Missing Talc?: Plaintiffs lawyers in the multidistrict litigation in New Jersey claiming Johnson & Johnson’s baby powder caused women to get ovarian cancer want to depose a corporate executive to explain why hundreds of talc samples went missing (my story here). The issue first came up at a New Jersey trial in April, when a witness for talc supplier Imerys Talc America testified about a missing box of potential talc samples that could have been tested for carcinogens like asbestos. A special master last month called the plaintiffs’ request “rank speculation.”
Kiss and Tell: A waitress who was injured when a wealthy diner forcibly kissed her won a $3 million verdict in Philadelphia. Here’s Law.com’s story. Apparently, there was surveillance video not only of the incident but of the diner in the restaurant hallway laughing with a male companion who was unzipping his pants. The lawyer for the waitress, Dion Rassias of The Beasley Firm in Philadelphia, said in the story that the diner wasn’t much of a sympathetic figure. “He discussed his Rolls-Royces, his Maserati, his homes across the eastern seaboard of the United States,” Rassias said.
https://www.law.com/2018/06/27/critical-mass-class-action-critic-gets-green-light-to-target-selfish-deals-plus-a-new-lit-funder-avoids-class-actions-and-mass-torts/?slreturn=20180528034827
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Globetrotting Jill is bringing hope to mesh survivors
Jun 27, 2018 | Daily Record
A globetrotting giraffe is bringing comfort to mesh-injured women the world over – and a Paisley mum-of-two is hoping it can work its magic on her.
Olive McIlroy had a mesh tape operation 10 years ago to “fix a leaky bladder,” and after suffering serious mesh complications, disability and chronic pain, she was forced to give up her work as a carer with Renfrewshire Council.
But 60-year-old Olive, who now lives in Renfrew, had a beaming smile on her face when she met Jill the Giraffe for the first time.
The woolly toy has clocked up more air miles than many frequent fliers and has visited mesh sufferers as far afield as the United States, Canada and New Zealand.
Now, Olive is the latest to offer ‘full board’ to Jill, and she was delighted to take temporary ownership of the cuddly companion.
She told the Paisley Daily Express: “When I first heard about Jill the Giraffe I thought it was a great idea, because she has achieved so much in such a short space of time.
“Jill has brought together hundreds of women from all over the world and given comfort to them.
“I’m now looking forward to showing Jill the sights of my home town – starting with Barshaw Park, where I was born.
“She will stay with me for a week or so before heading off on her travels again, although at this moment it’s a case of destination unknown.”
Karen Neil insisted she was delighted to hand Jill over to Olive, and added: “I watched my son’s ex-girlfriend crochet two amazing little giraffes and thought one of them would be a perfect symbol of hope for my fellow mesh
sufferers.“We named them Jack and Jill, and the former went to a mesh sufferer who had just become a grandmother.”
Jill, meanwhile, was destined to become a ‘mesh missionary,’ and the idea was to send her to visit fellow ‘meshies’ the world over.
Karen, 51, added: “Her first destination was South Wales, and she saw where the TV show Gavin Stacey was filmed.
“ A woman from the USA spotted the pics on Facebook and asked if she could have a visit.”
So Jill the Giraffe was off to Louisiana, and Karen admits she took a lot of pleasure from the giraffe’s first long-haul trip.
“It’s fantastic the way it has taken off,” she said. “It was just a bit of a laugh at first but now Jill has been to more places than me!
“When Jill was in America she met up with Slovakian woman, Iveta, who had travelled from her home to Los Angeles to undergo a complex procedure in a bid to have her mesh removed by a renowned US surgeon.
“Jill had a busy time of it in the States, and gathered many more luggage labels by the time she headed home for a rest.
“She visited the likes of Colorado, Arizona, California, Texas and Ohio, and met so many wonderful people along the way.”
One of those was Karen Pike, from Bakersfield, California, who said: “Jill was just what I needed to cheer me up. I have mostly been at home since leaving my job in 2014 due to mesh complications.
“I hadn’t seen many folk, but when Jill arrived it gave me the impetus to arrange lunch with six other mesh-injured women.”
Soo Kim, from Gilbert, in Arizona, had been trying alternative therapies in an attempt to hide the pain she was suffering after mesh surgery.
She said: “A visit from Jill acted as the perfect pick-me-up, although I did get a light-hearted telling off when I posted a pic of Jill sunbathing in the Arizona heat without any sunscreen on!”
One of Jill’s favourite trips was to the beautiful Lake Erie coast, which splits the USA and Canada.
After that it was down to Kentucky to work on her southern drawl.
Karen said: “The most important thing is that Jill the Giraffe has got people talking about mesh.
“That, and the love the little cuddly toy seems to spread wherever she goes, has brought us closer together and raised so much awareness.”
Adverse effects suffered by women after mesh implants used to treat incontinence and pelvic organ prolapse has been reported as a medical scandal.
The same polypropylene mesh is often used to repair hernias and both men and women are reporting complications and painful symptoms.
For more information on mesh, go to www.scottishmeshsurvivors.com
https://www.dailyrecord.co.uk/news/globetrotting-jill-bringing-hope-mesh-12802340
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