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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. For the first

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Speaker 1: time in almost ninety years, a California judge has been

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Speaker 1: removed from office by the state's voters because of a

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Speaker 1: lenient sentence in a sexual assault case. In Santa Clara County,

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Speaker 1: Superior Court judge Aaron Pursky sentence Stanford student Brock Turner

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Speaker 1: to just six months in jail for sexually assaulting a

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Speaker 1: woman who was unconscious. Prosecutors had asked for six years.

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Speaker 1: Persky spoke with CBS News before the recall vote. If

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Speaker 1: a judge is thinking, in the back of his or

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Speaker 1: her mind, how is this going to look? How will

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Speaker 1: it look on social media? Will I be vilified on

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Speaker 1: cable news? That's the wrong avenue. We can't do that.

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Speaker 1: We shouldn't do that, and we shouldn't put judges in

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Speaker 1: a position where they fear it. Joining me is Joshua

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Speaker 1: Spevac and your fellow at the Hugh Carree, Institute for

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Speaker 1: Government Reform at Wagner College and founder of the Recall

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Speaker 1: Elections blog Joshua, Is this an isolated case or are

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Speaker 1: there implications for the future. There doesn't seem to be

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Speaker 1: too many. There aren't too many possibilities of a recall

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Speaker 1: of judges. Uh. They don't happen frequently. The last one

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Speaker 1: in the US was seventy seven, where somebody was removed,

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Speaker 1: and the last time they even got one on the

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Speaker 1: ballot was both in Wisconsin. Uh So, Well, there's always

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Speaker 1: talk whenever there's a decision, whenever there's a controversial decision.

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Speaker 1: For instance Prop eight, when that came down, there was

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Speaker 1: threats of a recall. Uh famous California Supreme Court Chief

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Speaker 1: judge faced constant threats of a recall. Eventually she was

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Speaker 1: removed by retention election. But it's very hard to get

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Speaker 1: it on the ballot, so that you would need sort

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Speaker 1: of the firestorm of criticism, and as happened in this case,

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Speaker 1: a lot of money um to to do. The real

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Speaker 1: hurdle is getting the signatures. Uh So, to get the

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Speaker 1: recall to the ballot is the problem. Who spearheaded this

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Speaker 1: recall effort and where did the money come from. It

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Speaker 1: was a Stanford University professor who led the effort, and

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Speaker 1: they seemed to raise the money, you know, on viral

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Speaker 1: a and on social media, and they did a very

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Speaker 1: good job fundraising and then using it effectively to get

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Speaker 1: the signatures. So it is possible to get this type

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Speaker 1: of action together, it's just quite difficult. So I want

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Speaker 1: to talk about some of Judge Persky's responses. He had

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Speaker 1: said that he had a legal and professional responsibility to

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Speaker 1: consider alternatives to imprisonment for first time offenders. Is that

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Speaker 1: a valid concern? I think that is. There's always this

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Speaker 1: concern with recalls, how what should they be allowed for,

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Speaker 1: what should they be used against judges? And from the

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Speaker 1: very beginning in California there was a real debate of

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Speaker 1: whether the recalls should be extended to judges. A number

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Speaker 1: of states do not extend it to judges for that reason,

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Speaker 1: and for instance, William Howard taft To actually vetoed the

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Speaker 1: Arizona Constitution originally until they removed a recall of judge provision.

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Speaker 1: So this is a long time debate. It hasn't played

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Speaker 1: out too much simply because there haven't been too many

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Speaker 1: uh judge recalls in US history. So Judge Persky claimed

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Speaker 1: that a recall causes judges to consider the reaction in

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Speaker 1: social media and the news when sentencing someone, and that

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Speaker 1: it's an attack on judicial independ endance. What are the

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Speaker 1: responses to that? They seem pretty good arguments. Yes, and

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Speaker 1: I think that actually the responses, that is the goal

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Speaker 1: that recalls when they were adopted, were to give a

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Speaker 1: push officials to have more of a response to popular opinion,

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Speaker 1: and including in that was judges. Uh, so he's not wrong,

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Speaker 1: it's just the the opinion, the desire to have a

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Speaker 1: recall is in many ways pushing that exact point that, yes,

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Speaker 1: we do want the judges to have more of a

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Speaker 1: feeling of what the popular will is, so let's go ahead.

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Speaker 1: So it's really how how valuable is that? How is

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Speaker 1: that dangerous? Or is that a positive? As the adopters

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Speaker 1: of the recall what they did in this case, the

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Speaker 1: sentence and the backlash prompted California lawmakers to change the law,

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Speaker 1: that seems a good response to this. Yeah, So that again,

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Speaker 1: that's very much in keeping with the ideology of the recall,

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Speaker 1: that you would be able to do this, you would

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Speaker 1: be able to get a recall on the valid you'd

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Speaker 1: be able to exhibit voter anger and show it and

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Speaker 1: uh there would be a reaction from elected officials. So

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Speaker 1: this is in many ways part and parcel of the

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Speaker 1: whole direct democracy movement. Does it make judges more political

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Speaker 1: than they already are? It's hard to say that one

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Speaker 1: or two recalls would do that, but judges have been

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Speaker 1: overall throughout the country. Uh, there does seem to be

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Speaker 1: more of a focus on the political politicalization of judges,

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Speaker 1: though since they're elected officials in many states, that's not

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Speaker 1: a surprise. UM. But we saw the Iowa judges removed

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Speaker 1: for their votes on gay marriage. The Wisconsin judge elections

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Speaker 1: were very highly contested, uh, and West Virginia had the

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Speaker 1: same thing. Where these just the appointment of judges becomes

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Speaker 1: a major issue in many ways. That was one of

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Speaker 1: the primary motivations in the two thousand and sixteen election

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Speaker 1: on the Supreme Court, and it does seem to be

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Speaker 1: a push for the Republicans in Congress, maybe their single

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Speaker 1: biggest issues. So the recall sort of fits in with

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Speaker 1: that whole politicalization of the judiciary. Right, we should mention

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Speaker 1: that Supreme Court justices and federal court judges cannot be recalled.

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Speaker 1: They're there for life. UM study of elected state judges

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Speaker 1: by n y U Law School concluded that judges are

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Speaker 1: influenced by their election cycles. The studied showed judges issuing

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Speaker 1: longer sentences for serious felony conviction when they're close to

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Speaker 1: re election. Now, that sort of that seems like it's

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Speaker 1: a bad result of having elected judges. Do you favor

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Speaker 1: appointed judge as are elected judges? Uh, you know, I

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Speaker 1: don't know which is better. I've seen in New York

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Speaker 1: there there's some a lot of negatives to having elected judges.

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Speaker 1: There were some corruption scandals surrounding that, as opposed to

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Speaker 1: the appointed judges. Where there it seems to be better

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Speaker 1: than New York State's UH Court of Appeals, the highest

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Speaker 1: court doesn't have elections. They have appointments, and they seem

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Speaker 1: to be well respected generally. Um, but it is it's

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Speaker 1: a matter of debate whether judicial officers should be elected.

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Speaker 1: Uh Is this a good thing? Is it good that

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Speaker 1: they are uh influenced by voter opinion? Well, some people

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Speaker 1: would say yes, you know, they should be They should

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Speaker 1: be aware of what the will of the voters and

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Speaker 1: the will of the popula says, on the other hand,

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Speaker 1: you know, if they're changing their opinions, maybe that's not

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Speaker 1: a good thing. We've been debating this for quite some time,

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Speaker 1: and I suspect that we will continue to do so.

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Speaker 1: Thanks so much for your input. Joshua. That's Joshua Spivack.

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Speaker 1: He's a senior fellow at the Hugh L. Carey Institute

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Speaker 1: for Government Reform at Wagner College. The stakes are very

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Speaker 1: high in a Missouri trial where J and J is

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Speaker 1: defending itself against claims that it's sold its iconic baby

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Speaker 1: powder knowing it caused ovarian cancer. It's the biggest trial

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Speaker 1: yet in the recent wave of cases against J and J.

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Speaker 1: Twenty two women are trying to link their illnesses to

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Speaker 1: exposure to asbestos in the company's talk. Joining me is

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Speaker 1: Howard Ericson, a professor at Fordham Law School. Howard, will

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Speaker 1: you explain how the allegations here are slightly different than

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Speaker 1: in other trials. Yes. In this case, the plaintiff, player

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Speaker 1: Mark Lanier is UM is pushing a theory that the

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Speaker 1: traces of asbestos in Malcolm powder caused ovarian cancer in

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Speaker 1: these twenty two women and UM and that's a theory

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Speaker 1: that hasn't been used in the in the prior ovarian

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Speaker 1: cancer cases. So is that a risky theory? Well, I

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Speaker 1: suppose that. I think it's a smart theory because there

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Speaker 1: have been recent plaintiffs verdicts in cases involving mesa seloma

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Speaker 1: that is an asbestos linked type of cancer, and I

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Speaker 1: think I think the plaintiff lawyer in this case is

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Speaker 1: hoping that those prior verdicts that have found that there

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Speaker 1: were traces of asbestos in uh in talcum powdern hoping

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Speaker 1: that will play out um similarly in the ovarian cancer cases.

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Speaker 1: But it does require new science and it remains to

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Speaker 1: be seen whether the jury will believe it. Mark, you

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Speaker 1: mentioned him. Lanier is representing the women and he's one

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Speaker 1: of the pre eminent plaintiff's lawyers in the countries. Billions

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Speaker 1: of dollar verdicts are par for the course with him.

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Speaker 1: Is his presence changing the scenario or changing it up

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Speaker 1: a little? Well, he's he's a big time trial lawyer.

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Speaker 1: I mean, this is uh, this is a big trial.

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Speaker 1: You know, as you mentioned, it is the biggest case

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Speaker 1: to go to trial in the in the talk and

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Speaker 1: powder litigation with twenty two plaintiffs and all that. So

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Speaker 1: this is really this is the big at bat and

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Speaker 1: they are bringing up you know, the home run hitter

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Speaker 1: on and and as you say, he is accustomed to

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Speaker 1: winning big verdicts in mass torque cases. It is his

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Speaker 1: first talk trial. However, now is this case going to

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Speaker 1: be about the science and what the jury believes about

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Speaker 1: the science or will it be about documentation of whether

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Speaker 1: or not Jay and Jay knew it's product contained asbestos.

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Speaker 1: I have to assume the plaintiffs will want to emphasize

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Speaker 1: what Ja and Jay knew, because you can always find

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Speaker 1: a memo somewhere showing that someone at a company was

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Speaker 1: more read about something. I assume the descendant J and

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Speaker 1: J will want to emphasize the science and the you

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Speaker 1: know what is very much an open question of and

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Speaker 1: and something that it's not clear the plaintiffs can prove

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Speaker 1: that is the causal link between Telcom POWERN and ovarian cancer?

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Speaker 1: Have there have been many trials in different states, plaintiffs, verdicts, seems,

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Speaker 1: defense verdicts, appeals. Can you summarize where the litigation stands?

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Speaker 1: Is one side clearly winning most of the cases or

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Speaker 1: is it harder to read than that it's You cannot

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Speaker 1: say that one side is clearly winning. What you can

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Speaker 1: say is that in other states, particularly New Jersey and California, UM,

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Speaker 1: the defendants have had more success, and in Missouri plaintiffs

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Speaker 1: have had a lot of success. This case, of course,

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Speaker 1: is happening in St. Louis, Missouri, which is exactly where

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Speaker 1: the plaintiffs want to be. So how ared why are

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Speaker 1: our plaintiffs having more success in Missouri than in California

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Speaker 1: and New Jersey. Jurisdictions vary. They They vary in some

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Speaker 1: of their procedural rules. For instance, in SURI is pretty

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Speaker 1: liberal about allowing joinder, and that's one reason this case

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Speaker 1: is going forward with twenty two plaintiffs. They vary in

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Speaker 1: the judges. And Judge Burlison, who is overseeing this case,

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Speaker 1: has overseen other cases that have ended up with plaintiff verdicts,

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Speaker 1: and they differ in jury demographics, and I think the

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Speaker 1: I think the plaintiffs were happy to to try as

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Speaker 1: many of these cases in St. Louis as possible. Now,

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Speaker 1: let's talk about how these cases might affect a settlement

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Speaker 1: of some kind down the road. Or have we seen

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Speaker 1: have they seen enough of these cases to know where

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Speaker 1: they're going or are they going to have to try

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Speaker 1: a lot more in different states. Mass towards vary. There

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Speaker 1: is there are mass towards litigations in which the parties

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Speaker 1: are able to reach a global settlement before there is

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Speaker 1: a single trial verdict on this one has now seen

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Speaker 1: a number of trial verdicts. But um, but there's there's

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Speaker 1: no sign yet of any sort of global settlement. Um.

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Speaker 1: You know, obviously the outcome of a case like this

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Speaker 1: will have an enormous bearing on the settlement negotiation dynamics.

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Speaker 1: Which is, the stakes are high, not simply because it

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Speaker 1: is a twenty two plaintiff case with um with a

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Speaker 1: lot of money at states in this judgment. Um, the

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Speaker 1: stakes are also high because this is going to change

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Speaker 1: the momentum one way or another in terms of settlement negotiations. Howard,

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Speaker 1: is this similar in any way to the tobacco litigation

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Speaker 1: in and by that I mean that the cases are tried,

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Speaker 1: You hear about verdicts, and then there's an appeal after

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Speaker 1: an appeal, after an appeal, and you you know, down

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Speaker 1: the road, no one is getting paid any settlements. The

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Speaker 1: guest to get too much there, right, the tobacco litigation

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Speaker 1: went decades without a penny being paid, and then all

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Speaker 1: of a sudden in the nine nineties things kind of

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Speaker 1: turned around with this with the Attorney General cases, I

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Speaker 1: think this is a bit different. I think this is

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Speaker 1: following a path more like the biox litigation or other

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Speaker 1: pharmaceutical mass towards where there are a number of cases,

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Speaker 1: but it's all moving very quickly. This is really just

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Speaker 1: the past couple of years, the number of cases has exploded, um,

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Speaker 1: and the trials are moving quickly. So it seems to

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Speaker 1: me the pace of this is all really quite quick

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Speaker 1: and um, so look down the road with about thirty

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Speaker 1: five seconds here, how how long before we see some

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Speaker 1: kind of definitive move or a payment or something like that.

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Speaker 1: You can't predict when Jay and j is going to

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Speaker 1: decide um that there is an appealing settlement to be had.

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Speaker 1: It seems to me all eyes right an hour on

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Speaker 1: this trial which could last a month, and how this

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Speaker 1: jury reacts to the scientific evidence. Well, we always appreciate

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Speaker 1: your coming on with these mass toward cases, which is

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Speaker 1: your expertise. That's Howard Ericson, a professor at Fordham Law School.

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Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can

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Speaker 1: subscribe and listen to the show on Apple podcast, SoundCloud,

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Speaker 1: and on bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg