Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. A federal judge overseeing 2,000 lawsuits over the opioid crisis has rejected some key defenses ahead of a high-profile trial next month. Johnson & Johnson has moved for judgment at the end of a trial against the state of California over its mesh devices. And who's representing Google in a privacy class action involving medical records at the University of Chicago?

Feel free to reach out to me with your input. You can email me at [email protected], or follow me on Twitter: @abronstadlaw.

Opioid Judge Rejects Causation Defense

Less than two months before the first federal trial over the opioid crisis, U.S. District Judge Dan Polster has issued a series of orders on summary judgment motions—and it's not looking good for the defendants.

On Tuesday, Polster came out with several orders, including one that rejected a key argument from the defendant companies that they didn't cause the epidemic. Instead, they argued, doctors who wrote illegal prescriptions and criminals involved in narcotics, like heroin, have fueled the addictions and deaths tied to opioids. A spokesperson for Cardinal Health, one of the distributors, put it this way to me: "Wholesale distributors such as Cardinal Health do not drive demand for prescription opioids. Our company operates in compliance with applicable federal and state laws, and at no time did we conspire with anyone to violate the Controlled Substances Act."

But the plaintiffs, two Ohio counties, countered with evidence about the increased supply of prescription opioids. "Based on this evidence, a jury could reasonably conclude that the increases in prescription opioids proximately caused harm to plaintiffs," wrote Polster.

He also rejected other motions for summary judgment, including four based on federal preemption and one regarding civil conspiracy claims.

Meanwhile: The state of Ohio doesn't even want the trial to start. Attorney General Dave Yost filed a petition for writ of mandamus before the U.S. Court of Appeals for the Sixth Circuit to halt the Oct. 21 trial, citing concerns about the impact it would have on his own two opioid cases.

I reached out to Elizabeth Burch (University of Georgia School of Law), who's following that issue. She told me:

"I'd be surprised if the Sixth Circuit grants the petition. Mandamus is a difficult standard to meet and appellate judges afford transferee judges like Judge Polster wide deference in these areas. Appellate courts review decisions like these on an abuse-of-discretion standard and give district courts substantial leeway to manage their dockets as they see fit. In the unlikely event that the Sixth Circuit granted the petition, it could have wide ranging effects on subsequent MDLs."

How Will Mesh Trial End for Ethicon?

Johnson & Johnson's Ethicon has moved for judgment at the close of the state of California's trial over its transvaginal mesh devices.

A quick recap: The trial is the first in the nation brought by a state attorney general asserting misrepresentations about the safety of pelvic mesh products. California Attorney General Xavier Becerra, in a trial that began on July 15, has asked San Diego County Superior Court Judge Eddie Sturgeon to award $700 million in penalties.

What's happening: On Aug. 19, Ethicon filed a motion for judgment, arguing that "fundamental flaws" doomed the state's case. Among them: no evidence that any California surgeon or patient was misled by Ethicon's marketing of pelvic mesh devices. The state countered that Ethicon's promotions of its products "emphasized only the positive information and failed to include the serious risks." On Aug. 29, Ethicon attorney Jason Zarrow (O'Melveny) and California Deputy Attorney General Devin Mauney laid out their arguments in court (see Courtroom View Network's coverage here).

Sturgeon said he would rule before the next hearing, on Sept. 16.

Who Got the Work?

Michael Rhodes (Cooley) and Brian Sieve (Kirkland & Ellis) have stepped in to represent Google and the University of Chicago, respectively, in a class actionalleging they violated the privacy of patients of the University of Chicago Medical Center. The case alleges the University of Chicago gave Google electronic health records, which are confidential, without the permission of patients. Last week, both defendants filed motions to dismiss the case, brought by Jay Edelson(Edelson PC), claiming their research project complied with federal law and that the plaintiff lacked standing to sue.

Here's what else is happening:

Bushel of Fees: Judges have divvied up more than $440 million of a $502 million pot of common benefit fees earmarked for lawyers who sued over Syngenta's genetically modified corn seed. But, in an unusual development, a federal judge tasked with deciding which law firms should get a portion of a $78 million pool of fees tied to cases in Illinois, rejected the recommendations of her special master after finding there were "structural and procedural flaws" in his report. The special master, Daniel Stack, a former retired judge on the Madison County, Illinois, Circuit Court, happens to be the same neutral at the center of some controversy over $550 million in common benefit fees in the transvaginal mesh litigation.

VW Settlement: Faulty emissions aren't the only things revving up Volkswagencustomers. On Friday, Volkswagen agreed to pay $96.5 million to settle a class action alleging it installed transmission software that manipulated the fuel economy labels on about 1 million gasoline-powered vehicles. Elizabeth Cabraser(Lieff Cabraser), who also was lead counsel in cases over diesel emissions scandals involving both Volkswagen and Chrysler, said in the motion for preliminary approval that the settlement excludes attorney fees. She has asked for a Sept. 13 hearing.

Recharge: The U.S. Court of Appeals for the Ninth Circuit heard arguments in a pair of cases alleging that Samsung failed to adequately disclose an arbitration provision in the packaging of its Galaxy S7 and Galaxy S7 Edge smartphones. Samsung lawyer Robert Katerberg (Arnold & Porter) attempted to distinguish the cases from that of Norcia v. Samsung Telecommunications America, a 2017 decision in which the Ninth Circuit rejected its arbitration motion involving its Galaxy S4. The Galaxy S7 cases involved plaintiffs whose phones didn't exactly perform as promised: One stopped working after a woman accidentally dropped it in the toilet, and the other caught fire in a man's pants pocket.

Thanks for reading Critical Mass! I'll be back next week.