WEBVTT - Abbott-Reckitt Multibillion-Dollar NEC Suits

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<v Speaker 1>Next litigation is coming to a head in federal court.

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<v Speaker 1>What is this legal fight about? Who is likely to win?

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<v Speaker 1>And when will it play out? This is a Votes

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<v Speaker 1>in Verdicts Brief.

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<v Speaker 2>Welcome to this Vote in Verdicts podcast hosted by Bloomberg Intelligence,

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<v Speaker 2>part of Bloomberg's research development. With five hundred analysts and

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<v Speaker 2>strategists working across all major world markets, our coverage includes

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<v Speaker 2>over two thousand equities and credits, as well as outlooks

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<v Speaker 2>on more than ninety industries and one hundred market indices, currencies,

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<v Speaker 2>and commodities. In this podcast series, we talk about the

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<v Speaker 2>intersection of business policy and the law. My name is

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<v Speaker 2>Justin Teresi and I'm a litigation analyst with Bloomberg Intelligence

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<v Speaker 2>covering antitrust issues.

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<v Speaker 1>And I'm Holly from and analyst covering US litigation and

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<v Speaker 1>policy in the industrial and consumer space.

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<v Speaker 2>Our Votes and Verdicts Brief series highlights one of our

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<v Speaker 2>research reports on the Bloomberg terminal, giving listeners a quick

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<v Speaker 2>takeaway to help grasp a key litigation or policy topic. Today,

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<v Speaker 2>my colleague colleague is going to talk about neck litigation,

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<v Speaker 2>So Holly Neck cases against Abbott and Recket's me Johnson

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<v Speaker 2>number about one thousand right now. So far only three

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<v Speaker 2>cases have been tried, but together they've resulted in verdicts

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<v Speaker 2>of over a half billion dollars. Can you give us

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<v Speaker 2>a little bit more information about what these cases are about?

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<v Speaker 1>Sure? Thanks, Justin. So, Abbit and Record are manufacturers recks

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<v Speaker 1>meets Johnson our manufacturers of cow's milk based formula Similac

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<v Speaker 1>and enpmel, and those are formulas for preterm infants. The

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<v Speaker 1>claims are that the formula cause it is an intestinal

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<v Speaker 1>disease called necrotizing enterrocolitis or neck. Neck is a devastating

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<v Speaker 1>disease that could lead to lifelong complications. It's alleged studies

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<v Speaker 1>show that babies fed cow's milk based formula have an

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<v Speaker 1>elevated risk of neck as compared to babies fed exclusively

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<v Speaker 1>human breast milk diets. The companies say their products don't

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<v Speaker 1>cause neck. Instead, they say human breast milk is protective

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<v Speaker 1>against neck. As you mentioned, a little over one thousand

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<v Speaker 1>lawsuits have been filed. Half of them are in federal

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<v Speaker 1>court and consolidated before a judge in Illinois, and the

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<v Speaker 1>other half are in various state courts.

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<v Speaker 2>So, Holly, three cases have gone a trial, one in

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<v Speaker 2>Illinois and two in Missouri with very different outcomes. Can

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<v Speaker 2>you explain those verdicts and give your take on why

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<v Speaker 2>those verdicts have been just so different?

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<v Speaker 1>Sure? So these were all state court trials. The first

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<v Speaker 1>case to go to trial was in Illinois against me Johnson.

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<v Speaker 1>That was the Watson case. It was brought by a

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<v Speaker 1>mother who alleged her baby developed neck after drinking the

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<v Speaker 1>company's en pim milk formula and died from his injuries.

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<v Speaker 1>The trial resulted in a jury verdict in March that

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<v Speaker 1>awarded Watson sixty million dollars. The next case that went

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<v Speaker 1>to trial was the Margot Gill case, which was on

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<v Speaker 1>behalf of the baby that developed neck and brain damage

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<v Speaker 1>allegedly as a result of drinking Abbot's pre term for me.

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<v Speaker 1>The case was tried in Saint Louis City, Missouri, which

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<v Speaker 1>is a historically plaintif friendly jurisdiction. That case resulted in

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<v Speaker 1>a roughly five hundred million dollar verdict, four hundred million

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<v Speaker 1>of that was for punitive damages. The next case to

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<v Speaker 1>go to trial also in Saint Louis City, Missouri, which

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<v Speaker 1>was the Elizabeth Whitfield case. That was against both Abbott

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<v Speaker 1>and me Johnson, and that resulted in a defense verdict.

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<v Speaker 1>So why the difference. First, let's talk about the Illinois

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<v Speaker 1>Missouri planef verdicts. One was for sixty million and one

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<v Speaker 1>was for five hundred million. So there's a huge discrepancy

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<v Speaker 1>in the amount the jury awarded. And why is that Well,

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<v Speaker 1>two reasons. First, the plaintiff into a gill, which was

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<v Speaker 1>the five hundred million dollar verdict alleged brain damage, and

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<v Speaker 1>so that added to alleged damages for lifelong healthcare costs.

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<v Speaker 1>So compensatory damages alone was about one hundred million, which

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<v Speaker 1>by the way, was roughly the amount the amount plaintiffs requested,

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<v Speaker 1>and putitives are typically a multiple of the compensatory awards.

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<v Speaker 1>So here the jury awarded four times the compensatory awards

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<v Speaker 1>and punitive damages, and that's why that number was so

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<v Speaker 1>high five hundred million dollars. Sadly, the infant in the

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<v Speaker 1>Watson case, which was the case in Illinois, that infant died,

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<v Speaker 1>so it was a wrongful death case. The verdict there

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<v Speaker 1>was for sixty million, so unlike the plaintiff and guilt,

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<v Speaker 1>there were no future medical costs that could be sought,

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<v Speaker 1>which could have added to the jury award. And secondly,

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<v Speaker 1>as I mentioned, the Watson case was a wrongful death case.

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<v Speaker 1>Prior to August twenty twenty three, the state of Illinois

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<v Speaker 1>did not allow punitive damages for wrongful death cases, so

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<v Speaker 1>it was just about compensatory damages. That law, by the way,

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<v Speaker 1>has changed, so cases on the books as of August

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<v Speaker 1>twenty twenty three generally can seek punitive damages.

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<v Speaker 2>Got it, So some really big numbers here for plaintiffs

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<v Speaker 2>when they're striking. But do you have any insight as

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<v Speaker 2>to why the last verdict out of Missouri though Whitfield case,

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<v Speaker 2>Why do you think that was a defense verdict? Yeah?

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<v Speaker 1>So we had said this case would be tougher for

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<v Speaker 1>the plaintiff to prove, namely because the plaintiff named the

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<v Speaker 1>hospital as a defendant, the hospital where the infant was treated,

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<v Speaker 1>in addition to me, Johnson and Abbott the manufacturers. So

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<v Speaker 1>we thought that would complicate things. And generally, and I

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<v Speaker 1>have no scientific proof for this, but generally I think

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<v Speaker 1>a jury is less likely to find my ability against

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<v Speaker 1>a local hospital than two manufacturers they may have never

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<v Speaker 1>heard of before. So right away we thought the optics

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<v Speaker 1>of this case were very different than the first two cases. Also, importantly,

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<v Speaker 1>and perhaps more significantly, the court allowed the defense to

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<v Speaker 1>bring up the plaintiff mother's at marijuana use. There wasn't

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<v Speaker 1>a lot of testimony and evidence about it, but what

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<v Speaker 1>little evidence there was was damaging. So, for example, there

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<v Speaker 1>was testimony that the mother smoked pot a few times

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<v Speaker 1>a day during her pregnancy. There was also a medical

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<v Speaker 1>report that was introduced during the trial, and i was

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<v Speaker 1>a report of one of the mother's prenatal visits, and

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<v Speaker 1>the healthcare provider made a note on the form that

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<v Speaker 1>she noticed a powerful odor of pot when she entered

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<v Speaker 1>the room where a plaintiff's mother was waiting. So when

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<v Speaker 1>the mother testified to the jury that she would never

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<v Speaker 1>have used formula had she been worn it would cause neck,

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<v Speaker 1>it may have been a tough pill for the jury

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<v Speaker 1>to swallow, given that the mother testified that she smoked

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<v Speaker 1>pot relatively frequently, or there was testimony that she smoked

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<v Speaker 1>pot relatively frequently during her pregnancy and assumed or ignored

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<v Speaker 1>all the risks inherent in that. And finally, during closing,

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<v Speaker 1>the planet's attorney requested six billion dollars in damages and

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<v Speaker 1>that may have turned the jury off. So we don't

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<v Speaker 1>think that case is necessarily representative of future cases. But

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<v Speaker 1>we also not know not every case will be tried

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<v Speaker 1>in the Missouri court, which is traditionally plain and friendly.

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<v Speaker 2>All right, really some interesting stuff. It seems like there's

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<v Speaker 2>really case specific things happening in each of these. But

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<v Speaker 2>I think a broader question why were these cases brought

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<v Speaker 2>in Missouri? And why do you think there's any significance

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<v Speaker 2>to that if any of the cases being brought there?

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<v Speaker 1>Right, So there were the two cases that were brought

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<v Speaker 1>in Missouri. An important part of personal injury cases is

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<v Speaker 1>bringing the case in the right forum, and for plaintiffs,

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<v Speaker 1>that generally is this Missouri court if you can get it.

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<v Speaker 1>But in order for the cases to stay out of

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<v Speaker 1>federal court, there must be lack of diversity of citizenship

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<v Speaker 1>between the parties, which means means every defendant must be

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<v Speaker 1>from a different state from every plainiff. So with the

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<v Speaker 1>case of gil that was the five hundred million dollars verdict,

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<v Speaker 1>she was from Illinois, defendant Abbott was from Illinois, So

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<v Speaker 1>that destroys diversity, which means the case stays in state court.

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<v Speaker 1>But The reason Gill was able to get jurisdiction in

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<v Speaker 1>state court in Missouri instead of Illinois is because the

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<v Speaker 1>hospital where the baby was treated was in Missouri, and

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<v Speaker 1>she named two sales reps from Missouri, so the court

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<v Speaker 1>found that it had jurisdiction and the cases were properly

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<v Speaker 1>venued there. And in the Whitfield case, which is the

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<v Speaker 1>other Missouri case that resulted in the defense verdict, the

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<v Speaker 1>plaintiff is from Missouri and the defendants are from Illinois,

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<v Speaker 1>so you would say there is diversity. Right, this goes

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<v Speaker 1>to federal court. But the way the plantiff is able

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<v Speaker 1>to stay in state court is that she named the

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<v Speaker 1>hospital in Missouri where plantiff was treated, and because she

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<v Speaker 1>is from Missouri and the hospitals from Missouri that destroyed diversity,

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<v Speaker 1>so at stayed in state court. Got it?

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<v Speaker 2>Got it? So so much going on in every case.

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<v Speaker 2>So I'm sure folks are listening to the scratching their

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<v Speaker 2>heads and saying, you know, are there any key dates

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<v Speaker 2>to look out for now if you're an investor concerned

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<v Speaker 2>to about this litigation, what's coming next?

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<v Speaker 1>Yeah, So there's a hearing coming up in federal cases

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<v Speaker 1>on so called Dowbert motions, which are motions to bar

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<v Speaker 1>plaintiff's experts. Plaineiffs can't prove this type of case without

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<v Speaker 1>an expert, so these are very important motions. If plaintiff's

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<v Speaker 1>experts are barred, the cases like we get dismissed unless

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<v Speaker 1>the court allows plainiffs to introduce a new expert, and

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<v Speaker 1>they generally don't do that. I expect that you'll see

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<v Speaker 1>epidemiologists testifying. Those are people who study the incidents of

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<v Speaker 1>disease and population. I expect to see someone who testifies

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<v Speaker 1>as to the potential mechanism or the way they think

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<v Speaker 1>the formula causes neck, and perhaps someone who testifies to

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<v Speaker 1>animal studies I've been done, and a final medical expert

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<v Speaker 1>on general causation. So there's a hearing in March, and

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<v Speaker 1>we expect the court will issue a decision before the

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<v Speaker 1>first trial in early May. And in that decision, the

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<v Speaker 1>court will decide whether to allow all, some, or none

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<v Speaker 1>of the plainiff's experts to testify.

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<v Speaker 2>All right, at any insight at the court might rule

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<v Speaker 2>on that.

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<v Speaker 1>Well, we know the experts we are allowed to testify

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<v Speaker 1>in state court in the Watson Gillen Widfield case. Otherwise,

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<v Speaker 1>those cases wouldn't have on to jury, but that doesn't

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<v Speaker 1>mean they'll be allowed to testify in federal court. It's

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<v Speaker 1>typically harder to get experts admitted in federal court as

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<v Speaker 1>opposed to state courts, even in state courts that supposedly

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<v Speaker 1>follow Dabert standard. So we saw in cases against manufacturers

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<v Speaker 1>of Zantac overclaims that drug caused cancer, the federal court

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<v Speaker 1>handling consolidated proceeding dismissed the plane of experts. On the

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<v Speaker 1>other hand, the Delaware State Court, which was here in

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<v Speaker 1>tens of thousands of cases, also allowed that experts to testify,

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<v Speaker 1>even though it also Delaware also follows the Dawbert standard.

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<v Speaker 1>That ruling is now an appeal, but generally federal court

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<v Speaker 1>is tougher than state court. So I've said the companies

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<v Speaker 1>may fare better in federal court, though I haven't opined

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<v Speaker 1>on the Dabret motion set. I have yet to see

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<v Speaker 1>the Dabort briefing.

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<v Speaker 2>Okay, okay, So last question for you in this holid,

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<v Speaker 2>the FDA put out a consensus statement in October seeing

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<v Speaker 2>absent human breast milk feeding preterm infants. This formula is

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<v Speaker 2>this is the standard of care, and there's no conclusive

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<v Speaker 2>evidence this formula causes cancer. Do you think that statement

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<v Speaker 2>changes the outcome of any future cases?

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<v Speaker 1>I think it does and it does. First, the FDA's

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<v Speaker 1>statement may be deemed hearsay, so it may need an

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<v Speaker 1>exception to come into trial. When the defense tried to

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<v Speaker 1>introduce this evidence in the Whitfield case, the judge deny

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<v Speaker 1>the request on grounds of lack of timeliness. The judge

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<v Speaker 1>did not rule on whether it was hearsay or not,

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<v Speaker 1>so I expect to see some kind of motion on

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<v Speaker 1>that in federal court should these cases get to trial. Secondly,

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<v Speaker 1>we've seen other cases where a regulatory body has said

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<v Speaker 1>something is safe and the jury still finds liability. So,

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<v Speaker 1>for example, in litigation against Buyer's Monsanto over claims weed

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<v Speaker 1>killer Roundup causes cancer, the EPA, which is the agency

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<v Speaker 1>charged with registering pesticides like Roundup, has repeatedly said the

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<v Speaker 1>product doesn't cause cancer, and that conclusion was allowed in

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<v Speaker 1>at trial and the jury still found for plainness. But

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<v Speaker 1>then you have the thailanyl autism cases. The claims there

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<v Speaker 1>were that ingestion of thailanyl during pregnancy causes the babies

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<v Speaker 1>to develop autism. In those cases, the Court asked the FDA,

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<v Speaker 1>which is the agency that decides labeling of food and

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<v Speaker 1>drugs like tailan al, the court asks the FDA if

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<v Speaker 1>it thinks an autism warning on the label as a probe.

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<v Speaker 1>The FDA didn't put in a formal statement, but referred

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<v Speaker 1>the Court to its prior conclusion that it doesn't cause autism.

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<v Speaker 1>The court held Delbert hearings and dismissed the experts. It's

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<v Speaker 1>not clear to what extent, if any of that influenced

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<v Speaker 1>the court's decision anyway, but the Court was certainly aware

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<v Speaker 1>of it, as I presume the Court will be made

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<v Speaker 1>aware of the fday's decision here.

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<v Speaker 2>Okay, great excellent overview of the issues here, Holly, thanks

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<v Speaker 2>so much, and that's today's brief. For our full report

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<v Speaker 2>on the topic and all of our research, please visit

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<v Speaker 2>BI laws on the Bloomberg terminal. And most of all,

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<v Speaker 2>thanks to you the listener for tuning in. This was

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<v Speaker 2>Votes and Verdicts.