Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. This week, it's all about settlements: What does Purdue's $270 million settlement mean for the rest of the opioid litigation? Find out which cases are excluded from the Xarelto settlement. And a new report finds that the value of securities class action settlements surged in 2018.

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What's Next for Opioid Cases After Purdue Pharma's Settlement With Oklahoma?

Opioid manufacturer Purdue Pharma agreed on Tuesday to pay $270 million to settle a lawsuit brought by the Oklahoma attorney general's office. Reports from Law.com and the Associated Press said Purdue reached the deal after theOklahoma Supreme Court refused to halt a May 28 trial – the first in the nation over the epidemic. That trial will now focus on two other defendants.

The deal's details: Purdue agreed to pay $200 million to establish an addiction treatment center at Oklahoma State University in Tulsa, and $12.5 million to local governments.

What does the settlement mean for the thousands of other opioid cases across the country? I reached out to the plaintiffs' executive committeeoverseeing about 1,600 lawsuits coordinated in multidistrict litigation in Ohio, where two counties are scheduled to go to trial on Oct. 21. The co-leads of that committee said the settlement reflects the “extraordinary importance and strength of the claims against Purdue Pharma,” but noted that there were nearly two dozen other defendants with pending claims against them (by the way: a federal judge just disqualified Baker & Hostetler and one of its Cleveland partners, Carole Rendon, from representing one of them, Endo Pharmaceuticals, in that trial).

I also asked Richard Ausness (University of Kentucky College of Law), who's been following the opioid litigation, what he thought of the settlement. He told me he wasn't surprised but hadn't expected the amount to be that high.

“There are some advantages to the Oklahoma settlement from Purdue's point of view. Since the settlement money is earmarked for addiction treatment, Purdue might claim that they are responding to the opioid crisis by financing the OSU program. One possibility is that the terms of the settlement (which Purdue could spin in its favor) enabled them to target their money toward addiction treatment instead of having to disappear into the state's general revenue fund. This is unlikely to occur in any global settlement reached in the MDL.”

 

 

Weighing the $775 M Xarelto Settlement

Thousands of lawsuits filed over the blood thinner Xarelto have settled for $775 million. Law.com's story by Max Mitchell says Bayer and Johnson & Johnson's Janssen Pharmaceuticals agreed to resolve 27,000 claims in federal and state courts alleging they failed to warn about Xarelto's bleeding risks. Neither company admitted liability.

There are some restrictions: Payments will be “substantially reduced” for anyone whose first Xarelto prescription was after Dec. 1, 2015, or whose injury occurred after March 1, 2016. There's also a cap on payments to patients who were hospitalized for less than two days.

To be honest, $775 million doesn't sound that big for so many cases. But, then again, plaintiffs also had trouble at trial. Max told me:

“In all cases except one they failed to convince the jury that J&J failed to fully warn, or that the doctors would have made different prescribing decisions due to the allegedly improper warnings. And the only one to come to a verdict was later reversed by the trial judge, who said they couldn't prove the doctor would have made a different choice.”

Who Got the Work?

Lawyers from six firms have stepped in to represent medical certification boardssued for alleged anticompetitive behavior. This month, appearances in one of four class actions, and before the U.S. Judicial Panel on Multidistrict Litigation, came from: Jack Bierig and Jean-Paul Cart (Schiff Harden), who represent the American Board of Medical Specialties and the American Board of Emergency Medicine; Natalma McKnew and John Shaeffer (Fox Rothschild), for the American Board of Anesthesiology; Jamie Stilson (Dorsey & Whitney) and Matt Stromquist (Pilgrim Christakis), for the American Board of Radiology; and Christopher Sullivan (Price, Parkinson & Kerr), for the American Board of Psychiatry and Neurology. Leslie John and Jason Leckerman (Ballard Spahr) first appeared in January in an individual case for the American Board of Internal Medicine.

Here's what else you need to know:

Securities Settlements Swell: Securities class action settlements reached $5 billion last year, according to Cornerstone Research's annual report. My storysays that although five settlements were more than $100 million, an increasing number of cases settled for between $10 million and $48 million. And the average settlement tripled to $64.9 million, when compared to 2017, exceeding the average over the past nine years and reflecting a trend toward larger settlements overall.

Second Cy Pres? Ted Frank's closely watched challenge over cy pres funds got sidelined last week when the U.S. Supreme Court remanded the case – an $8.5 million class action settlement with Google — on the issue of standing. But Frank, now at the Hamilton Lincoln Law Institute, has another cy pres case in the wings. That's according to this article in Law.com, which says Perryman v. Romeroinvolves a settlement over an online rewards program that gave $3 million in cy pres funds to three universities in the San Diego area.

Verdict Watch: In San Francisco, a federal jury began deliberating on Tuesday in the second phase of a bellwether trial over the herbicide Roundup. Jurors found in the first phase that Roundup, made by Monsanto (now owned by Bayer), was a “substantial factor” in plaintiff Edwin Hardeman's non-Hodgkin's lymphoma. Law.com has this report on closing arguments, which focused on Monsanto's conduct and damages. In New Jersey, jurors in Middlesex County Superior Court were set to begin deliberations today in a trial alleging Johnson & Johnson's talcum powder caused plaintiff Ricardo Rimondi to get mesothelioma.

Thanks for reading Critical Mass! See you next week.