Welcome to Critical Mass, Law.com’s new briefing on class actions and mass torts. I’m Amanda Bronstad in Los Angeles. This week, the New Jersey Supreme Court takes up a battle over experts, and a federal judge freezes out some outside funders in the NFL concussion settlement. Hundreds of lawsuits over a diabetes drug were revived by a 9th Circuit panel. Also, find out what made the 7th Circuit criticize a case for being “emblematic of what is wrong with class actions.” Want to subscribe? This briefing—and others written by my Law.com colleagues—are now available. You can sign up for a complimentary trial here. In the meantime, please send your feedback to abronstad@alm.com or find me on Twitter: @abronstadlaw.

Tangle Over Science Set in NJ Pharma Case

The New Jersey Supreme Court has agreed to hear an appeal in the litigation over Accutane, the anti-acne drug. Law.com’sMichael Booth has the story. Lead attorneys on the appeal are: Paul Schmidt of Covington & Burling in Washington for defendant Hoffman-La Roche and David Buchanan of New York’s Seeger & Weiss for the plaintiffs. A bit of background: The state’s Appellate Division revived more than 2,100 lawsuits in July after finding that Atlantic County Superior Court Judge Nelson Johnson improperly excluded the plaintiffs expert testimony from the cases, in which plaintiffs allege Accutane caused patients to get Crohn’s disease. But the appeal isn’t just about Accutane. There are amicus briefs calling on the New Jersey Supreme Court to adopt the Daubert standard. And the case bears striking similarities to Johnson’s summary judgment ruling in a pair of lawsuits alleging Johnson & Johnson’s baby powder caused women to get ovarian cancer. Richard Golomb, of Golomb & Honik, plaintiffs attorney in the talc cases, in which Johnson also tossed the plaintiffs experts, said both cases involved “the application of the wrong standard under NJ law."

Lit Funders Tackled for Loss in NFL Case

A federal judge has put the kibosh on some third-party litigation funders in the $1 billion NFL concussion settlement. Philadelphia-based U.S. District Judge Anita Brody found the settlement’s language forbids lenders from entering into loan agreements that require players to assign over their monetary claims. Here’s my colleague Max Mitchell’sreport. The decision comes after U.S. District Judge Loretta Preska in New York – who’s hearing a case brought by federal and state regulators against third-party litigation funder RD Legal – referred the matter to Brody. Lead plaintiffs attorney Christopher Seeger of Seeger Weissflagged a similar issueinvolving third-party lenders in the NFL case but came under fire for failing to disclose his own ties with a litigation funding company. So, could Judge Brody’s ruling spell the end of this protracted litigation financing fight in the NFL concussion case? Unlikely. Max told me: “It's not 100 percent clear if this ends the dispute over third party funders, but it definitely shows how Judge Brody is interpreting the settlement language,” Max wrote.

Do-Over in Diabetes Lawsuits

The 9th Circuit revived more than 750 lawsuits in a closely watched appeal over incretin-based diabetes drugs. Here’s my story. The case had the potential to carve out guidance on the “clear evidence” standard set forth by the U.S. Supreme Court in Wyeth v. Levine – in particular, whether the manufacturers could provide “clear evidence” that the Food and Drug Administration would “not have approved” changes to the drugs’ labeling that plaintiffs claim were necessary to warn of links to pancreatic cancer. But in a Dec. 6 unpublished memorandum, the panel punted on the issue. Instead, the opinion said U.S. District Judge Anthony Battaglia in California, who nixed the entire MDL, had misapplied the Supreme Court’s 2011 holding in Buckman v. Plaintiffs’ Legal Committee, which ruled state law claims alleging “fraud on the FDA” were pre-empted by federal law. Kudos are due Washington D.C.’s David Frederick of Kellogg, Hansen, Todd, Figel & Frederick, who also convinced the 3rd Circuit to revive 5,000 cases involving osteoporosis drug Fosamax earlier this year in a similar appeal.

'Chutzpah' Doesn’t Pay

The 7th Circuit hasn’t relinquished its reputation for its harsh criticism of class actions--even after Judge Richard Posner's surprise retirement from the bench in September. Posner's ex-colleague's carried on this tradition in this Dec. 7 opinion in a class action brought over American Express gift cards. Lawyers for two intervenors, claiming their work was responsible for improving the settlement, had challenged a grant of $700,000 in fees because they really wanted $1.5 million. The opinion came with this footnote: “In many ways, this argument is emblematic of what is wrong with class actions.” Such “chutzpah” has happened before, the footnote continued, but it was “unfortunate that this is the way the game is played.” In the end, the court didn’t increase their fees. As the opinion’s author, Senior Judge Daniel Manion, wrote: “The decision we affirm today did not approve a perfect settlement. The individual class members (those who bothered to submit claims) will receive very little, while attorneys will receive more than all of the class members combined. But even the attorneys have not come out as well as they had hoped.”

Here are a few more things to know today: ● New Attack in Xarelto: Plaintiffs who won a $28 million verdict last week over blood thinner Xarelto might have a slightly different theory the next time around. Here’s Max’s report on the shifting legal strategies in the Philadelphia cases, which center on taking Xarelto with aspirin. The verdict was the first bellwether victory for the plaintiffs after three straight losses in Louisiana federal court trials this year. ● Growing Agriculture MDLs: Morgan & Morgan has asked a federal judicial panel to coordinate lawsuits alleging dicamba herbicides have drifted onto farms, causing damages to nonresistant crops. Faegre Baker Daniels has appeared for BASF, and Thompson Coburn for Monsanto. Agricultural MDLs have become increasingly prevalent – with some significant outcomes. In September, Syngenta paid $1.4 billion to settle litigation over genetically modified corn seeds after losing a $281 million verdict this year. Time to open a law firm office in the Heartland?

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