Speaker 1: Welcome to the Votes in Verdicts podcast hosted by Bloomberg Intelligence,
Speaker 1: the investment research arm of Bloomberg LP. In this podcast series,
Speaker 1: we talk about the intersection of business policy and law.
Speaker 1: My name is Holly from I'm an analyst with Bloomberg
Speaker 1: Intelligence covering consumer industrials and healthcare litigation. Today's podcast will
Speaker 1: focus on mass towort litigation presently winding its way through
Speaker 1: the courts. I'm delighted to be joined today by Joseph Fantini,
Speaker 1: a Rozen injury lawyers. He has been managing attorney for
Speaker 1: Rosen's mass tourt department, and just as a disclaimer, mister
Speaker 1: Fantini is an attorney representing plaintiffs in some of the
Speaker 1: cases we will be discussing today. Joe, would you please
Speaker 1: thank you for being here. Would you please tell us
Speaker 1: a little bit about your background and what you do
Speaker 1: at Rosen.
Speaker 2: Good morning, Thanks very much for having me on here.
Speaker 2: I'm excited to discuss all of the things here mass tort. So,
Speaker 2: as you mentioned, I'm the managing partner at Rosen Injury Lawyers.
Speaker 2: We're a firm that specializes in mass torts, so our
Speaker 2: office here only handles mass torts and we're currently involved
Speaker 2: in a number of different ones, including somewhere discussing today.
Speaker 2: But by the way background, I attended law school at
Speaker 2: Wider University in Delaware, and during that time I had
Speaker 2: the chance to clerk for the Honorable Judge knew in
Speaker 2: Philadelphia Court of Common Please. So Philadelphia Court of Common
Speaker 2: Please is one of the few state courts in the
Speaker 2: country that handles mass torts. So during that time, when
Speaker 2: Judge Knuw was overseeing the complex Litigation section, I had
Speaker 2: my first exposure to mass twarts. So I got the
Speaker 2: opportunity to interact with plain if and defense counsel and
Speaker 2: see how mass tourt really worked. After I graduated from
Speaker 2: law school, I work for an international insurance defense firm,
Speaker 2: Wilson Elser, where I focused my practice on product liability cases,
Speaker 2: but I had the opportunity to defend some companies in
Speaker 2: mass court cases pending in Philadelphia and also in federal court.
Speaker 2: After about three years defending companies, I switched sides and
Speaker 2: went over to the plane f side and joined a
Speaker 2: large predominant Philadelphia based firm called Antipol Voice over at Anapol.
Speaker 2: I worked there for approximately six years and really learned
Speaker 2: ins and outs of mass torts and worked on a
Speaker 2: number of docket from exception to settlement. I had a
Speaker 2: great opportunity there to work hand in hand with leadership
Speaker 2: and learned really how mass tourt worked. In twenty eighteen,
Speaker 2: I joined the Rose and Law Firm and launched the
Speaker 2: mass tourt practice Rose and Law Firm as a large
Speaker 2: securities class action, but we decided to open a second
Speaker 2: actice that bothn solely on mass towards. So over the
Speaker 2: last six years or so, I've been able to grow
Speaker 2: the practice and the firm to what it is here today.
Speaker 1: Great, thank you, as we're really lucky to have you today,
Speaker 1: because you don't always you don't always get attorney whose
Speaker 1: practiced on both sides of the aisle that it sounds
Speaker 1: like you have. So you know, we know that mass
Speaker 1: towards can pose series risks of companies in general. When
Speaker 1: you're analyzing whether to take a case as a as
Speaker 1: a plane's attorney, what would you make you decide to
Speaker 1: take on certain cases and what would persuade you to
Speaker 1: avoid certain cases.
Speaker 2: Yeah, that's a really good question, and there's maybe ten
Speaker 2: to twelve factors we look at in each different mask toward.
Speaker 2: Before we get involved, we want to make sure that
Speaker 2: it's a litigation that we're passionate about because we're going
Speaker 2: to be in there for a long fight and we're
Speaker 2: going to invest a significant amount of our resources. We
Speaker 2: also want to make sure it's a case that's going
Speaker 2: to have a big impact and that we're going to
Speaker 2: be able.
Speaker 3: To help as many people as possible.
Speaker 2: And we want to be able to bring about change,
Speaker 2: and the way you do that is to get involved
Speaker 2: in some of these mass towards. So when we start
Speaker 2: investigating and looking into the mass toward, the most important
Speaker 2: factor for us is science. We want to know what
Speaker 2: studies are out there, what studies are out there that
Speaker 2: support our position, and then also ones that go against
Speaker 2: our position. We really want to look at how many
Speaker 2: studies there are. And then once we get a handle
Speaker 2: on that, what our firm typically does is will retain
Speaker 2: our own expert that specializes in that area. So it
Speaker 2: could be an on ecologist, it could be an epidemiologist,
Speaker 2: whatever type of experts needed for us to really get
Speaker 2: a good feel about the strengths and weaknesses of the
Speaker 2: case up front before we start acquiring things. That's what
Speaker 2: we do next. After we get the good understanding of
Speaker 2: the science, we look at the total potential number of
Speaker 2: individuals impacted. So we're looking at here at the numerosity
Speaker 2: of the potential number of plans that come forward. My
Speaker 2: experience that showed me somewhere between eight to ten percent
Speaker 2: of injured claimants come forward, So we want to make
Speaker 2: sure that there's enough planeus out there for us to
Speaker 2: really make an impact. Another factor that we look at
Speaker 2: and is really important is the viability of the defendant.
Speaker 2: We want to know whether or not this defendant has
Speaker 2: the ability to satisfy a large judgment or engage in
Speaker 2: a settlement because miss toads typically resolve for hundreds of
Speaker 2: millions of dollars or even billions of dollars. So those
Speaker 2: three factors are usually the most important ones that we're
Speaker 2: looking at when we make a decision whether or not
Speaker 2: to get involved in a mass or it.
Speaker 3: Ok.
Speaker 1: Hey, thanks, So when you're looking at numerosity, I understand
Speaker 1: that there's like an eight or ten percent response rate.
Speaker 1: Is the eight to ten percent percent response rate is
Speaker 1: that people who will you know, call you after they
Speaker 1: find out about this issue, or are those people who
Speaker 1: are actually will actually decide to sue.
Speaker 2: Yeah, so eight to ten percent would be the percentage
Speaker 2: of the injured individuals that come forward. So I've seen
Speaker 2: some other studies that go up to twenty percent, But
Speaker 2: say there were one hundred people injured by this product.
Speaker 2: Typically they may not be aware of the association between
Speaker 2: this medication or this medical device or this consumer product.
Speaker 2: So it's that advertisement that makes them aware. Because it's
Speaker 2: different from a situation and a traditional personal injury case
Speaker 2: where you get in a car accident and you break
Speaker 2: your back. You know that's from the car accident. So
Speaker 2: here we have to do a lot of education and
Speaker 2: let the plaintiffs know, you know, you aren't the only
Speaker 2: person that is until there are other people. So we
Speaker 2: usually find that for every hundred people that were injured
Speaker 2: by this product, about ten percent of them come forward
Speaker 2: and want to assert a claim.
Speaker 1: Interesting. Interesting, are there cases that are riskier than others?
Speaker 1: And what would you describe as a risky case to
Speaker 1: take on?
Speaker 2: Yeah, some of something that would make a case riskier
Speaker 2: would be, you know, if the science is unsettled. So
Speaker 2: when we have maybe an even number of articles on
Speaker 2: each side saying something in favor of the player's position
Speaker 2: and something in favor of the defendant's position that can
Speaker 2: make it riskier. Also, if it's kind of a new problem,
Speaker 2: a new issue that's coming to the forefront, and there
Speaker 2: isn't a lot of science out there, if there haven't
Speaker 2: been a lot of studies, that makes it risky and
Speaker 2: that can.
Speaker 3: Give us pause before we get involved.
Speaker 2: You know, another thing that we look at a lot
Speaker 2: and really factors inter our decision is the ability of
Speaker 2: the defendants to pay, because a lot of these cases
Speaker 2: could potentially go into the bankruptcy, which could add years
Speaker 2: on to the length of the litigation, but then it
Speaker 2: could also result in the plane of getting a reduced
Speaker 2: mount So before we get involved, we really spend a
Speaker 2: lot of time focusing on those because without the science,
Speaker 2: we can't get over and past Daubert and everything.
Speaker 3: Would be for a loss.
Speaker 2: So those are the two most important factors i'd say
Speaker 2: that we look at before we get involved.
Speaker 3: Got it.
Speaker 1: So I understand you're involved in a number of mass works.
Speaker 1: I'd love to ask you some questions about specific case
Speaker 1: that's starting with Van Tak If any of the listeners
Speaker 1: don't know lawsuits were filed after a lab reported results
Speaker 1: finding that in an ingredient in xantach called niche din
Speaker 1: degrades into a non percentagen under certain storage point conditions
Speaker 1: or an alliged carcinogen under certain storage conditions. Cases were
Speaker 1: filed in federal and state court. There were at one point,
Speaker 1: I think about one hundred and fifty thousand queens on
Speaker 1: the Federal Registry. The Federal Court dismissed the cases in
Speaker 1: pour Q after the judge found experts couldn't pass the
Speaker 1: downward standard, which assesses the reliability of experts. I wanted
Speaker 1: to know, Joe, if you could explain the judge's ruling
Speaker 1: and her stated reasoning as to why she barred the experts.
Speaker 3: Yeah.
Speaker 2: So, as you mentioned, this was a very large mass
Speaker 2: towart and there were one hundred and fifty thousand cases
Speaker 2: on the registry. And basically what the registry was was
Speaker 2: a mechanism for us to put cases, to toll them
Speaker 2: and exchange information with the defendants before officially filing them.
Speaker 2: So what happened was in the spring of twenty twenty,
Speaker 2: the FDA requested that all manufacturers voluntarily recalled their products
Speaker 2: and sees further sales. All of them can applied with
Speaker 2: that and then almost instantaneously lawsuits started getting filed and
Speaker 2: then an MDL got formed before Judge Robinson Rosenberg of
Speaker 2: the Southern District of Florida, and basically, the plaintiffs we
Speaker 2: had relied heavily upon information from a private company was
Speaker 2: called Balashoor, and basically Balashor had theorized.
Speaker 3: That the Danda dean.
Speaker 2: Had the potential to degrade into carcagen known as NDMA,
Speaker 2: and through her analysis, Judge Rosenberg found that the testing
Speaker 2: that Balashor did to reach its conclusion wasn't proper. She
Speaker 2: found that the temperature that it was raised to that
Speaker 2: Balachra raised to was way above the temperature and the
Speaker 2: human and then also questioned Balashor's testing the reneedda den
Speaker 2: reaction to salt, which again she found was the salt
Speaker 2: content was way higher than what was found in the human.
Speaker 2: So those kind of caused some hurdles for us, and
Speaker 2: then Judge Rosenberg faulted the plaintiffs were relying upon the
Speaker 2: Balashore laboratory results. And then also another study that came
Speaker 2: out from Stanford around that same time, but after the
Speaker 2: issues with the Valshore laboratory studies and potentially some issues
Speaker 2: with their equipment that they used. The Stanford study ended
Speaker 2: up being retracted by the authors as well, so throughout
Speaker 2: her analysis, Judge Rosenberg noted that only the scientists in
Speaker 2: this litigation, they are the only people that have come
Speaker 2: forward and concluded that renidadin caused is cancer. And even
Speaker 2: though the FDA have withdrawn it from the market, which
Speaker 2: is a very unusual step, that alone isn't going to
Speaker 2: be enough for us to get over the hurdle and
Speaker 2: get the experts admit it and past Auburn and Judge
Speaker 2: Rosenberg found that all the experts that were put forward
Speaker 2: by plainiffs utilized unreliable methodologies and there was a lack
Speaker 2: of documentations on how the experiments were conducted, a lack
Speaker 2: of statistical significance, a lack of internal consistency, objective and
Speaker 2: science based standards for the evaluation of the data. Because
Speaker 2: what ended up happening was the plaintiffs relied a lot
Speaker 2: upon their own epidemiologists who conducted studies and then made
Speaker 2: some opinions, and the judge found that that type of
Speaker 2: methodology isn't the type that was consistent within the science
Speaker 2: antipic community. And therefore ended up excluding all of the
Speaker 2: plaintiff experts. It was a very well written and well
Speaker 2: reasoned three hundred page Dalbird opinion. And because all of
Speaker 2: the experts got excluded, basically summary judgment ended up getting
Speaker 2: granted in favor of the defendants. So all of the
Speaker 2: cases that ended up staying in the MDL, and so
Speaker 2: those were cases where there was a diversity between a
Speaker 2: planeiff and the defendant, they all ended up getting kicked
Speaker 2: out and a judgment got entered in favor of the
Speaker 2: defendants for all of those cases, which ended up being
Speaker 2: about forty or fifty.
Speaker 3: Thousand of them.
Speaker 1: Wow, okay, So what do you think the chances are
Speaker 1: reversal on appeal? I mean, I mean I should preface
Speaker 1: that that it's going it's going to be appealed, and
Speaker 1: I think I notice of appeals have been filed, So
Speaker 1: and what do you think the chances are of reversing that? Really?
Speaker 3: Yeah, that's correct.
Speaker 2: The notice appeal has been filed for the eleventh Circuit,
Speaker 2: and usually in Eleventh Circuit the time from the notice
Speaker 2: of appealed to decision is about a year. So around
Speaker 2: this time next year, we'll have a better idea but overall,
Speaker 2: the success rate in state and federal courts is anywhere
Speaker 2: between seven and twenty percent. And the Eleventh Circuit in particular,
Speaker 2: which was established in nineteen eighty one and has jurisdiction
Speaker 2: over federal courts in the southeastern states of Alabama, Georgia,
Speaker 2: and Florida, where we are usually something like this, has
Speaker 2: an average appeal success rate of somewhere seven percent. So,
Speaker 2: although I think there's some good arguments being made, again,
Speaker 2: I'm on the plane of side and represent these clients.
Speaker 2: If we're just looking at the statistics of it, we
Speaker 2: have about a seven percent chance of success on this appeal.
Speaker 1: Got it? So I understand they're about eighty thousand state cases.
Speaker 1: The vast majority of them are in Delaware State Court,
Speaker 1: some are in California, and they're smattering in other jurisdictions
Speaker 1: as well. What do you think the impact of that
Speaker 1: federal court decision is on a court's handling the state cases.
Speaker 2: Yeah, so the largest stocket is Delaware right now. There's
Speaker 2: a little over seventy thousand cases filed and pending there.
Speaker 2: We just recently served our expert reports and the experts
Speaker 2: depositions for the plaintiff and defense experts are going to
Speaker 2: be starting here in October twenty twenty three. We're looking
Speaker 2: to have an argument on the experts in the beginning
Speaker 2: of twenty twenty four, and I would expect the decision
Speaker 2: sometime in the first quarter twenty twenty four.
Speaker 3: What is going on in Delaware is we're no longer only.
Speaker 2: Accepting the top five designated canters that were identified by
Speaker 2: leadership in the MDL, So we're actually pursuing a larger
Speaker 2: body of cancers and we're looking at ten different cancers.
Speaker 2: And so obviously the Judge Rosenberg's opinion from them DL
Speaker 2: was not in favor of plaintiffs, and so what we
Speaker 2: did is we tried to learn from that decision. We
Speaker 2: identified the different areas where Judge Rosenberg's fault at the
Speaker 2: plaintiffs and our plaintiffs experts, and tried to address that
Speaker 2: with new experts that we've retained. And subsequent to the
Speaker 2: MDL being formed and the expert ruling there, which was
Speaker 2: about a year ago, there have been additional studies that
Speaker 2: have come down, so we think that we were going
Speaker 2: to be successful getting some of these experts passed the
Speaker 2: expert ruling. Here in the beginning of twenty twenty four,
Speaker 2: and how we're going to do it is kind of
Speaker 2: learned by maybe some of the critiques Judge Rosenberg had
Speaker 2: for us, and then also rely upon different experts who
Speaker 2: are certainly qualified and focusing more on their methodology to
Speaker 2: make sure that the Delaware judge doesn't have an issue
Speaker 2: with that.
Speaker 1: Got it. So in the in the multi district litigation
Speaker 1: that was in Florida that was before the federal court,
Speaker 1: they only pursued five cancers, is that correct?
Speaker 3: That's correct? They were only five in the NDL?
Speaker 1: Got it? And then how many how many cases were
Speaker 1: in Delaware? You said, I didn't quite hear that.
Speaker 2: Yeah, there's a little over seventy thousand cases currently.
Speaker 1: Pending, got it. And then you did say that some
Speaker 1: of the experts are all the experts different that you're
Speaker 1: you'd be that will be presented to the Delaware judge
Speaker 1: or are just some of them?
Speaker 3: I believe they're all new experts.
Speaker 2: I know for certain at least ninety ninety percent are
Speaker 2: maybe some on regulatory crossover.
Speaker 3: By we do have a whole new docket of experts there,
Speaker 3: got it.
Speaker 1: And so that brings me to my next question. In
Speaker 1: a March twenty third ruling by a California judge presiding
Speaker 1: over one of the state cases allowed a Xantech bladder
Speaker 1: cancer case to proceed to trial. That case eventually settled.
Speaker 1: Why do you think the California judge diverged from the
Speaker 1: federal court ruling And what read through, if any, does
Speaker 1: this have in the Delaware cases.
Speaker 2: Yeah, so, like you mentioned, that was the first case
Speaker 2: to go forward in California, where that's the second largest
Speaker 2: state court docket. There's several thousand cases there, I believe
Speaker 2: about three thousand, and this specific case was a bladder
Speaker 2: cancer case. And so Judge Grillo, who was overseeing it there,
Speaker 2: noted that the MDL order was only an unpublished decision
Speaker 2: by a federal trial court and it's not controlling on
Speaker 2: matters of state court law. So even though the California
Speaker 2: State Court and the federal court states are analogous in
Speaker 2: the standards they apply to the expert, the MDL would
Speaker 2: or wasn't dispositive. So Judge Grilla noted that the planetifs
Speaker 2: had come forward with a whole new docket of experts
Speaker 2: as well, and those were to be considered in California.
Speaker 2: And so what we ended up the attorneys ended up
Speaker 2: doing there in California is there were nine new experts
Speaker 2: that came forward and ultimately the majority of them got
Speaker 2: through one and then there were two or three experts
Speaker 2: that a portion of their testimony got excluded. But we
Speaker 2: had a pharmacologist, a bio analytic chemists, we had uh
Speaker 2: an on, a cologist, we had a chemist, we had
Speaker 2: two medical on a coologists on specific causation and regulatory
Speaker 2: So we were happy to see that Judge Grillo, even
Speaker 2: though we had the unfortunate MDL ruling. Judge Grilla looked
Speaker 2: at these experts individually, evaluated them, evaluated the methodology, which
Speaker 2: again we think strong, and we're using those similar type
Speaker 2: of tactics in Delaware. So based upon this new decision
Speaker 2: in California, the more recent one from March of twenty
Speaker 2: twenty three, we feel and a little bit better and
Speaker 2: optimistic about some of the experts getting through in Delaware.
Speaker 1: Interesting, so I'm going to shift gears a little bit,
Speaker 1: shifts from Zantac to roundup litigation. But we have background.
Speaker 1: Another company facing thousands of productal liability claims is Monsanto.
Speaker 1: With respect to it, we'd killer roundup mon Santo faced
Speaker 1: over one hundred thousand lawsuits leging and twee killer causes,
Speaker 1: non Hochkins and FOMA. It entered into agreements to resolve
Speaker 1: about one hundred thousand cases for around eleven billion dollars,
Speaker 1: but it's estimated that there are still somewhere between forty
Speaker 1: to fifty thousand cases left. Joe, why do you think
Speaker 1: these case the forty to fifty thousand, Why do you
Speaker 1: think these cases have not settled yet?
Speaker 3: That's a great question.
Speaker 2: Then what happened when the Roundup litigation here is the
Speaker 2: defendants have been unable to get finality on the cases
Speaker 2: that are out there. And so usually when the defendants
Speaker 2: are in a mass toward and able to settle a
Speaker 2: large group of cases, they do so because they no
Speaker 2: longer face exposure going forward. So we're talking about Zantac
Speaker 2: earlier because the product was withdrawn from the market. That's
Speaker 2: going to be the trigger date of the statute of
Speaker 2: limitations beginning to run similar like you see going on
Speaker 2: right now in Campa June. That date that the Act
Speaker 2: got put in place in August of twenty twenty two,
Speaker 2: that starts a two year window. Whereas in Roundup we
Speaker 2: still today have plaintiffs coming forward that were just recently diagnosed.
Speaker 2: And because there's a latency period of a number of years,
Speaker 2: even though the defendants settled these one hundred thousand cases
Speaker 2: two years or so, there's somebody that could have been
Speaker 2: using roundup in between that time period and just get
Speaker 2: diagnosed today, to get diagnosed tomorrow, or end up getting
Speaker 2: diagnosed in two or three years. So because the product
Speaker 2: is still on the market, they're facing challenges of bringing
Speaker 2: this lawsuit to a complete close. So what they did
Speaker 2: is they no longer sell the traditional roundup that me
Speaker 2: and you know to every day consumers. So that was
Speaker 2: a tactic that they began to implement to hopefully bring
Speaker 2: the litigation to an end from their perspective.
Speaker 1: Got it. So, how do you think, given that issue,
Speaker 1: how do you see this litigation playing out over the
Speaker 1: next year or so.
Speaker 2: There were a lot of firms that did settle their
Speaker 2: dockets and were included in that one hundred thousand, But
Speaker 2: like you said, there's still forty thousand plus cases still
Speaker 2: out there, a lot of lawsuits that are pending. So
Speaker 2: how I see it playing out is there's going to
Speaker 2: be a number of trials there's going to be trials
Speaker 2: going on in Missouri, where the defendant's headquarters. There's also
Speaker 2: upcoming Bellweather trials starting here in October of twenty twenty
Speaker 2: three in Philadelphia, with the very aggressive trial schedule through
Speaker 2: the first quarter, so I anticipate over the next six
Speaker 2: months or so, we'll have maybe between half a dozen
Speaker 2: to ten jewelry verdicts, and then that will really let
Speaker 2: us know what the value of these cases are. And
Speaker 2: then recently there was a new general counsel that joined
Speaker 2: in this summer, so I think he's getting a feel
Speaker 2: for the litigation and what to expect going forward. But
Speaker 2: I envisioned that a lot of jewelry verdicts are going
Speaker 2: to come out in the coming months, and then based
Speaker 2: upon that, we'll have an idea of what the cases
Speaker 2: they're worth. And then I would imagine by the end
Speaker 2: of twenty twenty four most of these cases are in
Speaker 2: some sort of settlement posture.
Speaker 1: Got it interesting. Another company facing a number of personal
Speaker 1: initry cases is Phillips. The litigation against Phillips is related
Speaker 1: to we called C PAP and B PAP machines used
Speaker 1: for sleep APNA, and there are allegations that the phone
Speaker 1: using the machine degrees and could cause injury, including cancer.
Speaker 1: One transcript from July twenty twenty two said that about
Speaker 1: sixty thousand people had entered into agreements. Do you think
Speaker 1: a settlement in this case would be easier to achieve
Speaker 1: than say, in Gleco litigation, And if so, why.
Speaker 2: I think a settlement's definitely going to be a lot easier.
Speaker 2: And the reason is because of finality. Similar to what
Speaker 2: happened with Zantec when there was a recall, Phillips here
Speaker 2: recalled the product, so that started the trigger for the
Speaker 2: statute limitations, and everybody who used it was contact that
Speaker 2: they're aware of these potential problems. So by starting this
Speaker 2: tolling agreement, my firm represents lots of people in this case.
Speaker 2: But basically you enter into the tolling agreement and you
Speaker 2: exchange information with the defendants at this junction where you
Speaker 2: provide them information about what device did they use, what
Speaker 2: time period, what are their injuries? So the defendants here
Speaker 2: are able to get their arms around how many total
Speaker 2: plaintiffs are there, what's the total exposure going to be
Speaker 2: to be able to come up with some sort of resolution.
Speaker 2: I envisioned this case will resolve in a global settlement
Speaker 2: where we're still fighting and going over and there needs
Speaker 2: to be Delbert rulings on which cases and which cancers
Speaker 2: end up being compensable, but that's to be played out.
Speaker 2: I do anticipate that this case will get resolved. Here
Speaker 2: they were called the product, there's a lot of seriously
Speaker 2: injured people. They've indicated they do want to ultimately resolve
Speaker 2: these cases. So I anticipate a global settlement maybe before
Speaker 2: the end of twenty twenty four or in the early
Speaker 2: part of twenty twenty five.
Speaker 1: Interesting another litigation that's going on, a multi district litigation
Speaker 1: and a really relatively early Stege penning in Ceneral Court
Speaker 1: in the Southern District of New York is related to
Speaker 1: a set of minifeene Thailand all an ingredient in title all,
Speaker 1: and the claim is that ingredient, if taken during pregnancy,
Speaker 1: causes autism. Gabert motions are being breathed with a hearing
Speaker 1: set for December. Can Joe, can you discuss generally what's
Speaker 1: happened so far in a litigation?
Speaker 3: Right?
Speaker 2: So, this is an MDL that was only recently formed
Speaker 2: and basically it was about a year ago that it
Speaker 2: was moved to the Southern District of New York before
Speaker 2: Judge cod And so what's happened in this litigation. Initially
Speaker 2: when the MDL was form about a year ago, there
Speaker 2: was sixty six cases that got transferred, and then slowly
Speaker 2: over the last year, the cases have trickled in, but
Speaker 2: you haven't seen an explosion of the docket that we
Speaker 2: typically see. And right now, as of maybe last week,
Speaker 2: there was only two hundred and sixty five cases, so
Speaker 2: two hundred cases added in a year. But what's happening
Speaker 2: is firmed Like my own firm, we're investigating the cases
Speaker 2: and we're really looking at the science and trying to
Speaker 2: get a better feel about whether or not these autism
Speaker 2: injury cases are going to be able to go forward,
Speaker 2: whether or not the ADHD cases are going to be
Speaker 2: able to go forward. So this is kind of a
Speaker 2: newer litigation, but the judge has been really aggressive and
Speaker 2: pushing it forward to a Daubert decision. Originally indicated there'd
Speaker 2: be a decision by the end of the year. I'm
Speaker 2: not sure if that's still going to hold, but we
Speaker 2: should have a decision by the first quarter or twenty
Speaker 2: twenty four and in the meantime we've been able to
Speaker 2: conduct discovery. We've gotten, you know, millions of pages, We've
Speaker 2: conducted a number of depositions, so we're doing all the
Speaker 2: background work needed. But this case is really all going
Speaker 2: to hinge on and depend on the outcome of the
Speaker 2: Daubert rulings, which we expect in anywhere from three to six.
Speaker 3: Months at it.
Speaker 1: So recently the court asked for the FDA's opinion as
Speaker 1: to the adequacy of the current warning over the counter
Speaker 1: set of minifum products. The FDA declined to issue a
Speaker 1: statement recently. What do you think the impact is, if
Speaker 1: any of that declination.
Speaker 2: That had a big impact on the litigation, because had
Speaker 2: the FDA come in and offered an opinion, it could
Speaker 2: have ended the lawsuit. Because what happened was Judge Cott
Speaker 2: asked the FDA to review the proposed labels and wanted
Speaker 2: the FDA to appine on should the planiffs proposed warning
Speaker 2: be added to the labels and does the science warrants
Speaker 2: weren't adding such a warning to the labels. So had
Speaker 2: the FDA come out and said they don't believe that
Speaker 2: Plainiffs proposed warning needed to be added to the label
Speaker 2: and there's no sign supporting it. That could have ended
Speaker 2: the litigation, right, We would have still gone forward with dalbirds,
Speaker 2: but it would have been a definitely huge burden for
Speaker 2: us to overcome.
Speaker 3: So by the FDA declining, I think.
Speaker 2: It still leaves it open to plane of thing successful
Speaker 2: here and it's all just going to come on and
Speaker 2: come down to the success of the Albert motions.
Speaker 1: So when you said the proposed warning this by way background,
Speaker 1: the court asked plane us to provide an example of
Speaker 1: a warning that they think would be adequate. Is that typical?
Speaker 2: That that isn't typical? That that's something that's very uncommon.
Speaker 2: And the adequacy of the warnings and the specific language,
Speaker 2: that's something we see way later in the litigation when
Speaker 2: we get to our experts. So having the FDA come
Speaker 2: in and offer their opinion, that's not something we usually
Speaker 2: see in any sort of mass toward it.
Speaker 1: Is it typical for a court presiding over this type
Speaker 1: of case to request the opinion of the FDA or
Speaker 1: whatever regulatory body has authority.
Speaker 2: Again, that's not a typical occurrence. That's something we rarely
Speaker 2: have ever see. So we were a little bit surprised
Speaker 2: by that. But going forward, we don't expect to see
Speaker 2: that in many mass towards going forward.
Speaker 3: Here it.
Speaker 1: Do you think there's any significance to these requests by
Speaker 1: the court.
Speaker 2: I understand why Judge Cott did it. The judge wanted
Speaker 2: to really focus in what are the real issues in
Speaker 2: this case. So this is, you know, a failure to
Speaker 2: warn and a defective design case. So by honing in
Speaker 2: and making the plane effs up front identify what warning
Speaker 2: we thought should be at it, it lets the experts
Speaker 2: really focus in on this specific area and also let
Speaker 2: us really focus in during regular discovery.
Speaker 1: Got it? And so shifting to another litigation, we saw
Speaker 1: three M air plug litigation. Three M was sued by
Speaker 1: you know, an over two hundred thousand veterans who said that.
Speaker 3: The airplust cost.
Speaker 1: The earpost coust hearing loss or Sunitas. Settlement of six
Speaker 1: billion dollars was announced in late August. You've commented that
Speaker 1: you don't think Plane of Slayers should take on new
Speaker 1: cases in this litigation. Can you explain why that is?
Speaker 3: Yeah, so my firm's not accepting new cases.
Speaker 2: I don't think I wouldn't recommend for any other firm
Speaker 2: to do that as well. But basically what happened was
Speaker 2: this litigation all got started years ago, back in twenty
Speaker 2: and fifteen or sixteen. There was a whistle blower plane
Speaker 2: that first brought our attention to the potential litigation, and
Speaker 2: then we've been able to investigate, and then this MDL
Speaker 2: was formed, and then as part of the MDL, it
Speaker 2: was on the forefront of the news. A lot of
Speaker 2: veterans were aware the VA was giving information to them,
Speaker 2: other people that they had worked with became aware, and
Speaker 2: then there was a large number of Bellweather trials. I
Speaker 2: believe there were sixteen in total conducted, and the results
Speaker 2: were all over the news. So in this litigation, there's
Speaker 2: a strong argument to be made by the defendants that
Speaker 2: the statue of limitation ran even when you're relying upon
Speaker 2: the discovery rule when you knew or should have known,
Speaker 2: your injuries were related. Because this litigation was so prevalent,
Speaker 2: it would be hard for any plane iff to come
Speaker 2: forward and say, hey, I just found out about this,
Speaker 2: now I want to pursue acclaiming. So the defendants in
Speaker 2: this case three m they did a good job about
Speaker 2: the finality of the litigation, and that's why we're able
Speaker 2: to get this six billion dollar settlement because they had
Speaker 2: an understanding of all the plaintiffs that were out there,
Speaker 2: how many were going to come forward, and that ultimately
Speaker 2: led to this settlement here.
Speaker 1: Interesting. Interesting, Well, thank you so much for joining us
Speaker 1: to JO and sharing your insights. We'll certainly be watching
Speaker 1: these litigations in the future. It will be interesting to
Speaker 1: see what happens in these cases.
Speaker 3: Thanks for having me. It was great talking with you,
Speaker 3: of course. Thank you