Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. Here's what's happening: Did the U.S. Supreme Court clarify its “clear evidence” standard in Wyeth? Which plaintiffs' attorney did this Roundupjudge sanction? Find out a plaintiffs' attorney's take on the recent report over OSU's sex abuse scandal.

Send your feedback to [email protected], or find me on Twitter: @abronstadlaw

“Clear Evidence” Not That Clear

The U.S. Supreme Court ruled this week on a key question about federal preemption—but the answer wasn't as clear as lawyers had hoped.

In Merck Sharp & Dohme Corp. v. Albrecht (see ruling here and Law.com's coverage here), the Supreme Court unanimously reversed a U.S. Court of Appeals for the Third Circuit decision that had reinstated 500 lawsuits brought over Merck's osteoporosis drug Fosamax. Merck, supported by amicus groups like the U.S. Chamber of Commerce and the U.S. solicitor general, had urged the high court to rule that federal law preempted such claims. On Monday, theSupreme Court didn't exactly do that, but, instead, attempted to clarify an exception, carved out in its 2009 holding in Wyeth v. Levine. That ruling held that claims brought under state law, such as failure to warn about a drug's side effects, could go forward unless there was “clear evidence” that the U.S. Food and Drug Administration would have rejected such a warning label.

What does “clear evidence” mean? That's the answer that lawyers on both sides were looking for. Here's what the Supreme Court said: “'Clear evidence' is evidence that shows the court that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug's label to include that warning.”

James Beck (Reed Smith), who wrote about the ruling on the Drug & Device Law blog, told me the Supreme Court's definition was more detailed—but not necessarily better. Here's why:

“The definition of clear evidence in the Supreme Court's opinion is phrased in terms of what the manufacturer submitted to the FDA, which is what happened in this case. But that's not the only way things get submitted to the FDA. There will be litigation over whether that means nobody else could submit something to the FDA and get a ruling.”

Still, the ruling was a big win for Merck and the defense bar for another reason: The Supreme Court also found that a judge, not a jury, should decide whether “clear evidence” existed. Beck told me:

“You don't have to worry about opening yourself up to a jury trial if there's a factual dispute. That's the biggest win in there.”

More Sanctions in Roundup

A federal judge sanctioned a second plaintiffs' lawyer in a trial alleging Monsanto's Roundup caused non-Hodgkin lymphoma.

U.S. District Judge Vince Chhabria, who in February ordered attorney Aimee Wagstaff (Andrus Wagstaff) to pay $500 for “obvious violations” of his pretrial orders, expanded his sanctions on Tuesday to also include Jennifer A. Moore(Moore Law Group), another lawyer on the plaintiffs' trial team. He found that Moore “intentionally joined in the bad faith misconduct for which Wagstaff was sanctioned” and ordered her to pay $500.

Worth noting: Chhabria did not sanction five other lawyers on the plaintiffs' trial team, which ended up winning an $80 million verdict. One of the other lawyers was R. Brent Wisner (Baum Hedlund), who lead the plaintiffs' trial teams in two other trials in California state courts that ended with $289 million and $2 billionverdicts over Roundup.

OSU Sex Abuse Victims Lawyer: “I was shocked.”

Ohio State University came out on Friday with a nearly 200-page report (following a 12-month investigation by Perkins Coie) that found Richard Strauss, a former doctor there, had sexually abused at least 177 young men, including athletes, for two decades, and that several university personnel knew about the complaints but failed to act.

It's the latest sex abuse scandal to hit a university: Check out my latest story on a $240 million class action settlement with the University of Southern California involving its former gynecologist. Lawyers filed a revised version of the settlement on Friday after a federal judge flagged numerous problems with the deal.

Plaintiffs' lawyer Ilann Maazel (Emery Celli) represents victims who have sued OSU. I asked him what he thought about the internal report as he and other lawyers prepare for a mediation on June 15. He said 177 represents a “small fraction” of the number of victims.

“I was shocked at how many people knew about this abuse that continued for decades and did nothing, or almost nothing. It's an absolutely damning report. It paints a picture of a university that knew about abuse for decades and did nothing to protect its students.” 

Here's what else is happening: 

More Mesh: Kline & Specter won another pelvic mesh verdict in Philadelphia state court—this time, for $80 million. Friday's verdict, against Johnson & Johnson's Ethicon Inc., included $50 million in punitive damages. The award came about a month after another jury came out with a $120 million verdict against Ethicon, which now faces about $345 million in jury awards in Pennsylvania (plus another wave of cases in federal court).

White Gold: The California plaintiffs' bar is more white and male than the Golden State as a whole. That's according to a survey by Law.com affiliate The Recorder, which found that 23.7% of lawyers at 22 of the state's largest plaintiffs' firms with 15 or more attorneys in California are minorities, and 31.4% are women. That's below the national figures for California law firms. “I think it's something that has to be addressed,” said Abbas Kazerounian (Kazerouni Law Firm), a board member of the Consumer Attorneys of California.

DOJ Poach: Duke University agreed to pay $54.5 million on Monday to settle a class action alleging it engaged in a “no poach” agreement with the University of North Carolina—but only after the U.S. Department of Justice intervened. The DOJ, which issued guidance on “no poach” agreements in 2016, has been filing statements of interest in antitrust class actions for the past year. It even brought its own case against a pair of railroad equipment suppliers that settled last year. But the case against Duke, involving medical faculty, could be the first time the DOJ stepped in to help negotiate the settlement.

That's all for this week. Thanks for reading Critical Mass! And I'll be back next week.