Baby Powder Leads to Ovarian Cancer – and Multidistrict Litigation

The emergence of talcum powder lawsuits and multidistrict litigation comes in sharp contrast to the generations-old image of the gentle application of Johnson & Johnson’s baby powder on a baby’s bottom. What was once seen as a loving gesture and rite of passage for young mothers everywhere in fact is more than a basic hygiene: it is a deadly carcinogenic agent linked to a 30% increase in ovarian cancer.

Multidistrict Litigation

Women of all ages have applied the sweet-smelling talcum powder after a shower or bath. Now, these women are coming together in the baby powder lawsuits that are starting to form, with filings across several different states. With more cases filed – and several major cases already adjudicated – these suits will likely form the basis of a new MDL (multi-district litigation docket).

Johnson & Johnson Baby Powder-300x300MDL proceedings allow cases to be expedited through pre-trial proceedings by a single judge. From there, a few early bellwether trials may be scheduled to expose possible weaknesses in the legal arguments and set a precedent for the remaining talc cancer lawsuits. Bellwether trials test a case on a widely-contested issue and are considered “trial” cases.

Sometimes large settlement offers are made after an MDL is formed. Other times, the cases are remanded back down to the lower state courts to proceed as individual trials.

Liability Already Found

For the second time in three months, jurors blasted Johnson & Johnson with an 8-figure verdict on May 3 in a trial charging that the company knew that its talc-based Baby Powder and Shower to Shower Powder causes ovarian cancer, and failed to warn women who used it.

Talc was found in the ovarian tissue after a hysterectomy of the plaintiff, Gloria Ristesund of Sioux Falls, SD, in the latest verdict in St. Louis. The jury awarded her $55 million ($5 million in compensatory damages and $50 million in punitives).

She was diagnosed with cancer in 2011 after using J&J’s talc-based feminine hygiene products for almost 40 years. The case is Hogans v. Johnson & Johnson, 1422-CC09012, Circuit Court, St. Louis City, Missouri, filed by 64 plaintiffs. The case charges J&J with fraud, negligence and conspiracy.

In February 2016, a Missouri jury awarded a $72 million verdict to the family of a woman who died from ovarian cancer. After more than three decades of using talc-based Baby Powder and Shower to Shower products manufactured by defendant Johnson & Johnson, Plaintiff Jacqueline Fox died in October 2015 at the age of 62.

The verdict included $62 million in punitive damages against the manufacturing giant in response to the company’s alleged misconduct, including allegations of fraud, negligence and conspiracy. Plaintiffs claimed that the company knew for decades about the cancer risk posed by its talcum powder products, but never alerted the public, the medical community or regulatory agencies about the risks.

Researchers have asked 2,041 women with ovarian cancer and 2,100 similar women without ovarian cancer about their talcum powder use. Those who said they routinely applied talc to their genital area, feminine products, and underwear were at 33% higher risk of ovarian cancer, the study showed.

Author Dr. Daniel W. Cramer, who heads the Obstetrics and Gynecology Epidemiology Center at Brigham and Women’s Hospital in Boston, has unsuccessfully called for warning labels on talcum powder in the past. Cramer first reported a link between genital talc and ovarian cancer in 1982.

“This is an easily modified risk factor,” he said. “Talc is a good drying agent, but women should know that if it’s used repeatedly, it can get into the vagina and into their upper genital tract. And I think if they knew that, they wouldn’t use it.”

Cramer has testified as a paid expert in various lawsuits against talcum powder manufacturers.

Women with ovarian cancer who feel that they were victims of manufacturer negligence should seek representation from an experienced talcum powder lawyer. It costs a plaintiff virtually nothing to file a talcum powder lawsuit. The payment of legal fees is typically contingent on winning a settlement or jury award.

North Carolina’s “Bathroom Bill” Has Serious Implications for State Employment Law

resist hateThe North Carolina “Public Facilities Privacy & Security Act,” or House Bill 2 (“HB2”) is arguably the most anti-LGBT statute that has ever been passed in the United States of America. But HB2 is about more than just adding limits on what local government entities can do regarding public bathroom usage.

News coverage of HB2, which has largely been referred to as a “bathroom bill,” lacks an important understanding of a detrimental change in employment discrimination law that accompanies the bill’s passage. As Charlotte School of Law Professor Brian Clarke points out, most articles about the passage of HB2 omit “a hugely significant issue, the bill’s complete elimination of the ability of NC employees to sue employers under state law for employment discrimination based on the protected categories of race, sex, national origin, religion, color, or age.”

Prohibits the right to sue for discrimination

Clarke, who has practiced employment law for more than 11 years and published significant research in the field believes, “The single sentence that accomplished this feat overturned decades of well-established North Carolina law, eliminated a critical legal protection for all employees in North Carolina, and – of course – is utterly unrelated to bathroom usage.”

Clarke is referring to Part III of HB2 (143-422.2), or the North Carolina Equal Employment Practices Act. Section 422.2 decrees that employment discrimination based on the standard protected classes referred to in Title VII is illegal, but the following section – 422.3 – completely prohibits the right to a cause of action for such discrimination. By its own language, 422.3 overrides the protections of 422.2 by removing its teeth: “This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action . . .” So, in North Carolina, employers may not discriminate against employees; but, if they do, employees have no right to sue.

The North Carolina Equal Employment Practices Act (“EPA”) was originally passed in 1977 and tort of wrongful discharge was recognized in 1982. Wrongful discharge was premised on the language of 422.2, but the passage of HB2 takes away this private right of action North Carolina employees have relied on for more than 30 years. Race, sex, religion, national origin, color, and age are now no longer subject to a private right of action in the state.

Final avenue of justice is gone

The real problem a lot of employees face with employment discrimination suits is that they simply do not know their rights. When employees do not find out their legal rights until after the 180 days to sue allowed for by Title VII, their only recourse is to sue under the EPA for wrongful discharge in violation of public policy. Now, that final avenue of justice is gone. Arguments were made on the House floor by Republican Representative and HB2 co-sponsor Dan Bishop that the EPA was never intended to create a private right of action for employees, but evolved through the common law; according to HB2 sponsors like Bishop, this new language removing the private right of action is meant to “correct” that.

Both the legal community and country as a whole remain shocked at the passage of HB2. Andrew Gordon, President of the LGBT Legal Society in Charlotte believes there have been major abuses of power throughout the un-democratic process of HB2’s passage. “The fact that an ‘emergency session’ was called in response to HB2 is a blatant waste of thousands of taxpayer dollars. There are far more pressing needs in this state; not the least of which is the fact that we rank as one of the worst states in the entire country regarding quality of education, teacher pay, and student spending,” Gordon stated.

Gordon’s mission for the LGBT Legal Society is to bring the legal community’s attention to issues of special concern to LGBT students by serving as a bridge between students, law school alumni, and the legal profession at large.

Revokes anti-discrimination laws

The unfair process Gordon mentions is this: HB2 was not revealed to those required to vote on it until the morning it was to be voted on. HB2 passed both the House and Senate and was signed by Governor McCrory within the short span of 12 hours.

“This process, this bill not only harms LGBT communities and establishes that North Carolina does not tolerate LGBT diversity, it revokes the power of any state locality to establish any anti-discrimination laws. HB2’s passage thereby removes the ability of any city to protect citizens it determines should be protected. Now, after HB2, any discrimination complaint can only be brought to the state’s Human Relations Commission and no civil cause of action exists for a perceived violation of the state’s non-discrimination statute.”

Gordon sums up HB2’s passage by saying, “Our state’s politicians preyed on an irrational fear: that protecting the dignity and civil rights of transgender citizens will somehow also allow predators to molest children and women in bathrooms. As if signs on bathroom doors will ever be enough to prevent predators who would misuse such a protection from harming others. One thing has proven true that the LGBT community assumed from the start: the discrimination politicians have long-attempted to couch in religious freedom has never been about religion at all; it was only ever about legalizing discrimination.”

View House Bill 2 here.

Illinois Court Affirms $3 Million Jury Award to Chicago State University Whistleblower


An Illinois Appellate Court affirmed a $3 million jury verdict to plaintiff James Crowley for a whistleblower retaliation claim brought under the Illinois State Official and Employee Ethics Act.

Determining that punitive damages are available under the Ethics Act, the Illinois Appellate Court ruled that Chicago State University’s conduct was “thoroughly reprehensible,” and the ratio between the compensatory and punitive damages award was entirely reasonable.

Obeying the Law

Crowley, former Senior Legal Counsel for Chicago State University (CSU), reviewed contracts and processed the university’s FOIA (Freedom of Information Act) requests. Crowley alleged he was retaliated against after he refused to withhold certain documents from FOIA requests inquiring about the university’s President. Crowley reported his concerns about the FOIA requests and Chicago State’s contracting practices to the Illinois State Attorney General’s Office.

According to the Illinois opinion, Crowley’s employment was without incident until 2009, when defendant Dr. Wayne Watson was hired to become president of CSU. Watson had just finished a job as the head of the Chicago City Colleges and planned to draw his state pension. Shortly after the announcement of the CSU job, it was discovered that, in order to begin receiving pension payments from the State University Retirement Systems (SURS), the rules required him to have a three-month gap between state jobs.

Improper Use of Funds

During the gap, amidst significant public controversy about the merits of Watson’s appointment, allegations focused on Watson’s alleged use of state funds to renovate the so-called “presidential residence” while making decisions at CSU when he was not yet officially in office. During this period, in the view of all parties at trial, Watson was not a CSU employee and thus could not authorize any sort of activity at the university.

Numerous FOIA requests were received by CSU from curious citizens (including a rather prolific document requester named Phillip Beverly, a tenured political science professor at CSU) which called for any documents concerning Watson’s hiring and the work at the residence. Crowley went about the task of collecting all documents that he believed would be responsive to these numerous requests.

Adverse Employment Action

According to Crowley, during a meeting in President Watson’s office, which the interim acting president, Dr. Sandra Westbrooks joined, Watson demanded that nothing be produced without his personal review — despite the notable facts that Watson was not yet an university employee and that it was Crowley’s job to fully respond to FOIA requests. Crowley testified at trial that a rather animated Watson grabbed his wrist and told him, “If you read this my way, you’re my friend. If you do it your way, you’re my enemy.”

On February 1, 2010, Crowley was escorted off CSU premises after being summarily suspended by Patrick Cage, CSU’s newly hired (November 2009) general counsel and a longtime colleague of Watson’s. Crowley was brought back to CSU on February 19, 2010, for a very brief meeting with Cage in which he was told that financial irregularities were found in an audit relating to Crowley’s work.

Hours later, Crowley’s employment was officially terminated. There is no indication in the court record that Crowley was given any opportunity to correct these perceived shortcomings, which Crowley claimed was in violation of CSU’s policies and procedures.

$3 Million Award for Retaliation

A Cook County jury found that Crowley was retaliated against in violation of the Ethics Act and awarded him $480,000 in back pay and an additional $2 million in punitive damages.  Pursuant to the statute, the trial court doubled the back pay to $960,000, ordered the University to pay attorneys’ fees of $318,000, and awarded prejudgment interest in the amount of $60,000.

The trial court also ordered the University to reinstate Crowley to his former position or provide “front pay” based on a $120,000 annual salary through the resolution of any appeals.

The appellate court affirmed and held that punitive damages are available under the Ethics Act, rejecting the University’s position that it was immune from liability for punitive damages pursuant to the doctrine of sovereign immunity. The court also held that the jury’s award did not violate the University’s due process rights as the University’s conduct was “thoroughly reprehensible” and the ratio between the compensatory and punitive damages award was entirely reasonable.

This ruling clarifies that punitive damages are available under the Ethics Act and affirms the serious risks employers face for taking adverse action against employees engaging in lawful activity under state whistleblower laws.

Wisconsin Supreme Court Rules for Employees in Donning & Doffing Class Action


The Wisconsin Supreme Court affirmed workers who spend time putting on and taking off clothing and other work gear before and after their shift (“donning and doffing” in employment law terms) must be paid for the time these activities take.

The class action case, filed by the United Food & Commercial Workers Union on behalf of 330 current and former Hormel employees, was decided in the Rock County Circuit Court in favor of the union, and affirmed in the circuit court.

Integral Part of the Work Day

The United Food & Commercial Workers Union (Local Section 1473) alleged that Hormel violated Wisconsin wage and hour laws for failing to pay for the additional 5.7 minutes of time per day it takes workers to don (get dressed for work) and doff (remove work clothing). The time spent putting on and taking off the required clothing and equipment has not previously been included in the employees’ compensation, which resulted in employees working more than 40 hours per week without being paid overtime.

As Justice Shirley Abrahamson noted in her lead opinion, the “Work Rules” Hormel employees are required to abide by state that employees wear certain clothing and equipment on daily basis. “If employees do not wear the required clothing and equipment, the employees are subject to discipline, up to discharge,” Abrahamson wrote.

Hormel employees must don Hormel-provided hard hats, hearing protection, eye protection, and hair nets. Employees must also wear clean and sanitary footwear at all times. The clothing, which cannot under any circumstances be worn outside the Hormel plant, is provided by the company and must be changed daily. In certain cases, Hormel clothing must be changed more often than once daily.

Abrahamson cited the Wisconsin Department of Workforce Development code in determining that the action of putting on white shirts and pants, hard hats and hearing protection, and hand-washing qualifies as “physical or mental exertion.” The Workforce code provides that an employee must be paid for all time spent “in physical or mental exertion . . . controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer’s business.”

Back in the 1980s, Hormel paid its employees an extra 12 minutes per day for the “donning and doffing” under a then-existing union collective bargaining agreement (“CBA”). Eventually, however, that compensation was “bargained away.”

Not a De Minimis Trifle

Abrahamson’s lead opinion did not affirm the lower court’s determination that employees should be paid for donning and doffing even if they leave for lunch breaks. Abrahamson noted the parties agreed on that issue and therefore rendered no opinion on it. Chief Justice Roggensack dissented with this decision, concluding that compensation is not required when employees change clothes for lunch.

“Leaving during the lunch break serves no interest of Hormel, is not ‘an integral part of a principal activity’ of the employer within the meaning of the administrative code, and serves only employees’ interests,” Chief Justice Roggensack wrote.

Hormel argued the doctrine of de minimis non curat lex, which means “the law does not concern itself with trifles,” to bar compensation for only 5.7 minutes of its employees’ time. Justice Abrahamson disagreed, stating, “Viewed in the light of the employees’ hourly rate of $22 per hour, the unpaid period in question may amount to over $500 per year for each employee and substantial sums for Hormel. In the instant case this time is not a ‘trifle.’”

The U.S. Supreme Court weighed in on the “donning and doffing” question in 2014 in Sandifer v. United States Steel Corp. The high court disqualified most clothing as fitting under the Fair Labor Standards Act (“FLSA”), ruling that the vast majority of the time employees spent dressing was not compensable under the federal act.

The case is United Food & Commercial Workers Union, Local 1473 v. Hormel Foods Corporation, 2016 WI 13 (March 1, 2016).

EEOC Grants Employees Access to Employer Position Statements

2nd Circuit Not Concerned With Adequacy of Pre-Suit EEOC Investigations

The United States Equal Employment Opportunity Commission (“EEOC”) has implemented a new policy that will give pause to employers defending discrimination claims in the agency’s forum.

  • The procedure requires the release of employer position statements, including all non-confidential documents and exhibits, to the charging employee.
  • Employers are also required to share positions statements with claimant employees’ attorney representatives.

Proving illegal pretext

Employers beware: if a position statement says one thing and an internal company document says another, this constitutes an illegal pretext (or at least enough of an issue of fact to get to a jury trial). With the explosion of communication via email, instant messages and even social media, uncovering various reasons for a decision becomes easier.

Previously, the disclosure of employer position statements was made at the discretion of the particular EEOC field offices’ directors or investigators, and practices were inconsistent nationwide. Before the change, EEOC investigators might summarize an employer’s evidence and arguments for an employee to solicit the latter’s response. Now, the employee will be able to view firsthand all of the employer’s “cards on the table,” and read the defending employer’s argument for him/herself.

The Administrative Process

Submitting employer position statements to the EEOC is part of the standard agency process:

  • Employees utilize this federal agency to file claims, or “charges,” of discrimination.
  • Employers submit responses in the form of position statements that lay out all relevant arguments and defenses.
  • The EEOC makes a determination based on both sides of the story.
  • After utilizing the EEOC agency process, employees can file law suits against employers within a certain statutory number of days.

This new process essentially creates discovery for the employee without jumping through the original hoop of requesting a copy of the position statement through FOIA (the Freedom of Information Act).

The release of position statement copies, together with all non-confidential documents submitted in support of the position statement, is effective January 1, 2016. The EEOC states these new procedures are intended to “create uniformity and greater transparency in the handling of discrimination charges throughout the country.” However, employers will not benefit equally from a fuller exchange of information because the EEOC does not intend to furnish employers with the employees’ responses to the position statement.

Employers now must separate and appropriately label confidential information that is submitted in support of position statements (for example, in a separate attachment labeled “Confidential”). The scary part for employers? Whether the EEOC will, in every instance, accept the Employer’s characterization of material as confidential remains entirely unknown.

The EEOC does promise that the following sensitive material will not be turned over to claimant employees:

  • Sensitive medical information.
  • Confidential commercial or financial information.
  • Trade secrets.
  • Non-relevant personally identifiable information of witnesses, comparators or third parties (such as social security numbers, addresses, phone numbers).
  • References to charges filed against employers by other charging parties.

The New Policy’s Implications

As points out, make no mistake: this policy is really huge “because the EEOC position statement is an employer’s first chance to tell its side of the story, and the semi-automatic provision of these documents to employees and their lawyers places a hyper-premium on accuracy.”

An effective way for an employee to win a discrimination case is by establishing pretext, which means proving the employer’s stated reason for the termination (or other adverse employment action) was a “cover-up” for discrimination. While there are several ways to prove pretext, an employee can establish pretext by demonstrating the employer’s shifting rationales.

Corporate attorneys and employers should consider the implications of this new policy going forward, particularly because plaintiffs’ attorneys now may have access to what is, in essence, early discovery. This is a benefit for plaintiffs’ counsel that may encourage settlement because both parties can recognize weaker claims earlier on in the administrative process.

Employers should also keep in mind that information produced in a position statement may alert opposing counsel to new legal theories, additional damages, and potential new plaintiffs. Thorough, consistent, and accurate investigations will continue to be important avenues of preparing employer position statements.

How Scalia’s Death May Impact Pending Supreme Court Cases


Antonin ScaliaThe death of Antonin Scalia — the Reagan-appointed, outspoken and rigidly conservative Supreme Court justice — left the outcome of several major pending SCOTUS cases entirely up in the air.

Gone are Scalia’s scathing dissents and his “originalist” judicial philosophy. Scalia believed jurists should interpret the U.S. Constitution according to the Framers’ original intent, regardless of the current reality.

Major Cases Now Pending

Dow Chemical Co.’s agreement to pay $835 million to settle a price-fixing dispute is just one example that Justice Scalia’s death is a serious blow to businesses that have previously been successful in challenging class action cases at the U.S. Supreme Court level. In the process of merging with Dupont, Dow opted to settle the decade-long case rather than risk a decision by an eight-justice court missing Scalia, who was a reliable vote in support of companies in class action cases.

Dow said in a statement that Scalia’s death and the raging political fight over naming his successor meant an “increased likelihood for unfavorable outcomes for business involved in class action suits.”

Multi-million dollar class actions suits involving Tyson Foods Inc. and Walmart Stores Inc. were also argued last year while Scalia was on the bench. Tyson challenged an almost $5.8 million class action judgment and Walmart seeks to throw out a $187 million class action judgment from Pennsylvania.

Another class action case heard by the Supreme Court this term involved online search company Spokeo Inc. SCOTUS appeared closely divided following the November oral argument, which could result in a 4-4 split. While such a ruling would not set a national precedent, it would be a victory for the affected plaintiffs.

And the Court has already started ruling on several health care cases pending during its current session. According to Josh Blackman, associate professor of law at South Texas College of Law, appellants and appellees banking on Scalia’s vote may receive profoundly different rulings without him on the bench. “If the Court splits 4–4, it gets complicated,” Blackman said. “Usually, a tie vote affirms the lower court, but in some of this term’s cases, lower courts have ruled differently on a single question.”

A split decision effectively upholds the ruling of the lower court (presumably a state supreme court). In the event of such a tie, the court typically issues what’s known as a per curiam decision. The opinion in such a decision is issued under the court’s name, as opposed to consisting of a majority and a minority opinion.

When a 4-4 deadlock does occur, the case is not deemed to have set any sort of precedent.

Scalia even wrote several major opinions in favor of corporations, including Comcast and Walmart. Thus, Scalia’s absence may influence overall what cases the Supreme Court chooses to hear. It’s a firm Supreme Court rule that decisions are not final until they are handed down, so nothing Scalia did or said in pending cases matters to the outcome.


Uncertainty in His Absence

The uncertainty surrounding big SCOTUS decisions could last beyond this term depending on whether and for how long the Senate fights Obama’s nomination to replace Scalia. Tom Goldstein of SCOTUSBlog predicts the Republican Senate is unlikely to let President Obama push through his own pick so close to an election.

While it remains possible President Obama could attempt to bypass the Senate and replace Scalia through a recess appointment, that tactic is rarely used and would be certain to draw outrage and an attack from Republicans. One thing is certain regarding the president: the potential for 4-4 decisions creates uncertainty for several upcoming cases this term that will undoubtedly affect President Obama’s legacy.

In the case of a SCOTUS split, whatever the lower court decided is affirmed, and that ruling only applies to the low court’s specific circuit. Naturally, this leaves serious legal conflicts among circuits unresolved. The Court was divided 5-4 along ideological lines only about a quarter of the time; most decisions are actually unanimous. It is, of course, the divided decisions that are often the most culturally and politically controversial.

Scalia already heard – and potentially already cast votes – in several high stakes cases that could decide issues regarding whether universities can continue to use affirmative action to if unions can collect fees from nonmembers to survive. Any Scalia votes already cast in pending cases, however, will be invalidated, sending the Supreme Court back to the drawing board. We can likely expect to see 4-4 splits on key issues, with the remaining four liberals and four conservatives on the bench facing off against each other.

Zofran Multidistrict Litigation Allowed to Proceed Despite Motion to Dismiss

belly of pregnant woman and vitamin pills in the hand

Amid increased warnings that the anti-nausea drug Zofran may be linked to serious birth defects when used during pregnancy, a federal panel last year created a special multidistrict litigation docket for victims to use as an avenue for compensation from the drug’s maker, GlaxoSmithKline (GSK).

With hundreds of lawsuits already filed, GSK filed a request last month to have the lawsuits against it thrown out of court before families even had a chance to prove their case. The federal judge overseeing the Zofran birth defect lawsuits denied GSK’s attempts to keep the cases out of court as premature at best.

Loath to Dismiss

GSK had argued the families’ state law claims were preempted by federal law under the U.S. Supreme Court decision in Wyeth v. Levine, which held that federal regulatory clearance of a medication does not shield the manufacturer from liability under state law. U.S. District Judge F. Dennis Saylor IV said that he was “loath to dismiss” the claims without giving the families the chance to develop the facts of their respective cases through discovery.

Zofran, manufactured by GlaxoSmithKline and first approved by the FDA in 1991, is intended for extreme cases of nausea, such as with cancer medications or following surgery. It was not FDA-approved for use during pregnancy. However, it has increasingly been prescribed to expectant mothers for morning sickness since its initial approval. GSK was fined a record $3 billion in 2012 by the federal government for illegally promoting Zofran for such unapproved purposes. GSK earned more than $1.5 billion per year in sales, and it is evident the $3 billion fine had little overall impact on the pharmaceutical giant.

The families affected by Zofran usage argued on January 6 that because the FDA hasn’t approved Zofran to treat morning sickness, only GSK has control over the relevant evidence of the foreseeable risks of using Zofran while pregnant.

  • Even though parties have not yet initiated discovery, the families said they have reason to believe GSK has evidence about the link between Zofran and alleged birth defects.
  • This includes several animal studies conducted by the pharmaceutical company in Japan after the company launched sales of the drug in the U.S. One of those studies, the families said, revealed the same cardiac birth defect alleged by many of the complaints.

Proceeding With Discovery

In its January motion to dismiss, GSK argued that the FDA’s negative response to a citizen petition requesting that the agency reclassify the pregnancy risk for Zofran demonstrates the FDA had already made a decision about the validity of the Zofran warnings. Judge Saylor disagreed, stating,

“In effect, GSK argues that the court need not consider evidence of how the FDA might have answered a change request, because the petition response itself contains the actual answer. GSK’s position, however, is problematic . . .”

In short, the standard of “clear evidence” involves a fact-based evaluation, so Judge Saylor felt the court should not rule on a motion to dismiss “without giving the plaintiffs some opportunity to develop the facts, whatever those facts may be.”

“If — as plaintiffs allege — GSK was in exclusive possession of information not previously submitted to the FDA indicating the need for a new or strengthened warning, that information would presumably be included in a [change being effected] request,” Judge Saylor said. “That information could not, however, have been submitted by a citizen petition, as no citizen (according to plaintiffs) had access to it.”

Hundreds of families have joined the multidistrict litigation against GSK, and now they all will have the opportunity to proceed with their claims.

The case is In Re: Zofran (Ondansetron) Products Liability Litigation, Case Number 1:15-md-02657, in the U.S. District Court for the District of Massachusetts.

NLRB Says Whole Foods Can’t Prevent Employees’ Workplace Recordings

Whole Foods

The National Labor Relations Board (NLRB) ruled that Whole Foods, a nationwide upscale grocery store chain, cannot forbid its employees from recording workplace conversations or taking photos at work without management’s permission. The Whole Foods decision follows another 2015 Board decision [Rio All-Suites Hotel and Casino (Aug. 2015)] in which the Board struck down rules prohibiting employees from using any audio visual recording devices at work.

Read the Handbook

At the center of the case were two stipulations in Whole Foods’ “General Information Guide,” an employee manual that provides work rules. The “Guide” prohibited workers from taking photos or recording conversations inside a store “unless prior approval is received” from a manager or executive, or “unless all parties to the conversation give their consent.”

Whole Foods argued it barred recordings of employee conversations in the workplace to promote “open communication, spontaneous and honest dialogue, and an atmosphere of trust.” Whole Foods argued that recording employee “town-hall,” in-store and other meetings would create a lack of employee candor and prevent overall team harmony. Rather than attempting to inhibit employee rights, Whole Foods reasoned, its rules are meant protect Whole Foods employees and promote a cohesive workplace.

“The purpose of this policy is to eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded,” the manual states.

Concerted Actitivy

Whole Foods’ “fostering communication” argument did not interest the NLRB in what all boils down to two words: concerted activity. The Board majority found that recordings and broad rules could hinder workers’ ability to gather evidence, “such as photographing picketing, or recording evidence to be presented in administrative or judicial forums in employment-related matters.”

The Board reasoned that the broad language of the grocery giant’s two handbook rules could reasonably prohibit employees’ use of cameras or recording devices in the workplace for various concerted, protected activities.

The National Labor Relations Board protects the rights of employees to engage in “concerted activity,” which is defined as when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.

“Our case law supports the proposition that photography and audio and video recording at the workplace are protected under certain circumstances,” the Board said. The fact that employees would, overall, see the prohibitions as a ban on their protected, concerted rights under the NLRA, made the Board’s decision that much easier.

The NLRB’s decision means employers should triple check all work rules restricting audio or visual recordings by employees. If employers continue to maintain these rules, they must clearly state the employer’s legitimate objective. Workplace recordings should be banned only to the extent reasonably necessary to accomplish the employer’s objectives for disallowing workplace recordings.

Identifying specific times or places to which the ban applies instead of promulgating an all-around ban is a best practice. It’s likely the NLRB will look more favorably on rules specifying what cannot be photographed or video or audio recorded.

The case is Whole Foods Market Inc. and United Food and Commercial Workers Local, case number 01-CA-096965, before the National Labor Relations Board.

Who’s Hispanic? New Trial After White Applicant Receives $1.3 Million for Race Discrimination


Left to Right: Former Freeport Mayor Andrew Hardwick and Police Chief Applicant, Lt. Christopher Barrella.

The U.S. Second Circuit Court of Appeals in Manhattan overturned a $1.3 million jury verdict and ordered a new trial for a white non-Hispanic officer who alleged he was passed over for a job as police chief in 2010 in favor of a Hispanic candidate. The federal appeals court also ruled that the village of Freeport and former mayor Andrew Hardwick should get an entirely new trial in the suit by plaintiff Lt. Christopher Barrella due to a number of legal errors made at the 2014 trial.

Impermissible Witness Speculation

Second Circuit Court Judge Jose Cabranes said impermissible opinions may have swayed Barrella’s discrimination suit because two witnesses were allowed to speculate from the witness stand about Hardwick’s motivations without knowing the facts of the case.

The case originally evolved in 2009 after then-Freeport Mayor Hardwick appointed Miguel Bermudez, a Cuban-American man, as the Village of Freeport’s new police chief. Judge Cabranes, who wrote the Second Circuit opinion, was part of the three-judge panel that agreed federal law – since the 1980s – has clearly barred employers from discriminating against applicants or employees based on Hispanic ethnicity or the lack thereof.

Despite confusion in various state and federal statutes combined with the census and the media about whether terms like Hispanic and Latino refer to race, ethnicity or national origin, the court agreed with the plaintiff that the two federal anti-discrimination laws Barrella sued under do recognize the category as a sound basis for suit.

Freeport’s Blurred Lines Argument

The Second Circuit rejected Freeport’s 50-page dissertation on race and ethnicity, which argued that because Hispanics are also white, a white applicant passed over for a Hispanic employee cannot technically claim race discrimination.

“Two people who both appear to be ‘white’ in the vernacular sense of the term, and who both identify as ‘white’ on Census forms and the like may nonetheless belong to different ‘races,’” wrote Second Circuit Judge Jose Cabranes. Categories of race and ethnicity under federal anti-discrimination laws allow multiple variations. Judge Cabranes noted in his opinion that a person of half-Hispanic and half-Irish ancestry could sue if that person was passed over for an Italian-American, a non-Hispanic Irish-American, or a black Hispanic.

While the Second Circuit seemed to agree with plaintiff Barrella’s reasoning in filing the anti-discrimination suit, it is also clear that Barrella will have to jump through the hoops of a new trial regardless. U.S. District Judge Arthur Spatt of Central Islip let several witnesses — including an assistant police chief and Hardwick’s former chief of staff — give impermissible non-expert opinions stating the mayor chose Bermudez due to race.

The two witnesses were even improperly allowed to opine that Hardwick could have personal reasons for hiring Bermudez instead of Barrella, because the two have known each other for a long time.

Attorney Ken Novikoff said Hardwick is confident he will be vindicated at a retrial, and attorney Keith Corbett said he looked forward to “complete vindication of our client’s rights” on behalf of the village. Amanda Fugazy, Barrella’s lawyer, said the appeals ruling “confirms each and every one of our client’s legal claims.”

“With this decision squarely in our favor on all legal issues, we are confident that the new jury will find the same as the last jury and will fairly compensate Lieutenant Barrella for the employment discrimination he suffered,” Fugazy said.

The new trial decision may not be quite the slam dunk Fugazy and Barrella are hoping for. The previous jury deliberated for five days in the case, which indicates that it was “difficult until the end” and should be retried without opinions admitted as evidence.

Eighth Circuit Revives Female Trucker’s Sexual Harassment Claims

Truck Driver

The U.S. Court of Appeals for the Eight Circuit ruled that a female truck driver who claims she was sexually harassed by a male driver during a multiday trip can pursue claims against her former employers under federal and state anti-discrimination laws. The divided Eighth Circuit panel held that the district court failed to consider everything that occurred during a mandatory 34-hour rest period, during which her truck driving partner exposed himself to her, offered to forgive a debt in exchange for sex, and became aggressive when she refused his advances.

“Just get along with him”

The kicker for the Eighth Circuit was that when Tri-National Logistics (TNI) employee Rebecca Nichols reported the harassing conduct to her dispatcher, he told her to just try to get along with the James Paris, the male driver. Instead of taking immediate remedial action, which is critical in the defense of a sexual harassment compalint, the company essentially stranded Nichols. It did not arrange a new driver to connect with Nichols until seven days after her initial report.

Summary judgment was affirmed against Nichols’ retaliation claim because her employer successfully argued that her unsafe driving (which had long been a concern prior to her harassment claims) was the sole basis for her discharge.

According to Nichols, TNI (and RMR Driver Services Inc.) arranged for Nichols and Paris to drive three hours to his home in Pharr, Texas during their 34-hour rest period. Once inside his home, Paris made an unwelcome advance by offering to forget about the $800 Nichols owed him if she would have sex with him. Paris both fully and partially exposed himself to Nichols in their truck before they had even reached Laredo, TX. Paris became “excessively mad” and twice “forcibly took away” her keys to the truck and her mobile phone when she declined his advances, Nichols alleges.

Issues of Poor Performance

Less than two months after Nichols was hired in August 2011, she was fired by TNI for getting her truck stuck in the mud and damaging the trailer door. She was rehired in October of the same year on the condition that she could no longer drive alone. Her first three driving partners consecutively refused to continue driving with her, telling TNI Nichols took her eyes off the road to use her cell phone; ran a stop sign and caused an accident; and otherwise engaged in unsafe driving practices.

Nichols even made a request to dispatch to take the truck to a place where she could stay overnight, away from Paris, which was denied. She told the dispatcher, “I can’t believe you’re telling me that. Didn’t I just tell you maybe an hour ago that the man was trying to control me to no hilt and I couldn’t get away from him?” The dispatcher told her to try to “get along with [Paris] until you guys get back out on the road” and offered to pay half the cost of a motel room, should Nichols venture to pay for one. Nichols even slept in the truck by herself one night, but eventually asked Paris to take her to a nearby motel.

One month later, Nichols drove with a different driver who reported that she drove over the speed limit, ran at least one red light, talked on her cell phone while driving, and kept her tractor brakes on while driving. The field safety supervisor recommended Nichols for termination and the VP of operations fired her.

Employers take note: it is always challenging to deal with employer offenses if there are contrary allegations of poor employee performance. However, there must be a simultaneous understanding that an employee’s errors on the job do not justify inappropriate workplace activity, such as harassment or other illegal behaviors. In complicated situations, the involvement of human resources and prompt remedial action are helpful next steps.

The opinion is available online. The case is Rebecca L. Nichols v. Tri-National Logistics, Inc.; RMR Driver Services, Inc.; James Paris, in his individual capacity; Charles Kye, in his individual and official capacities; Donald Lewis, in his individual and official capacities, Case No. No. 15-1153.