Latest / The Jon and Marc Podcast / Proving Liability vs. Proving Damages: Lessons from the Uber MDL

Transcript

Proving Liability vs. Proving Damages: Lessons from the Uber MDL · The Jon and Marc Podcast

• 0:00
  Welcome to Tortalk. I'm Mark Rieu here with John
• 0:03
  Robinson and Joe Fantini. This week, a shocking $5000 Uber
• 0:08
  verdict, the Bard Power Port bellwether kicks off in Arizona,
• 0:13
  a landmark Supreme Court argument in the Roundup
• 0:15
  litigation. And we're recapping the hottest
• 0:19
  torts from mass tort made perfect in Las Vegas.
• 0:22
  Big week. Let's dive in, John.
• 0:24
  Coming off the heels of Mass Sports Made Perfect Joe, there
• 0:27
  is a lot of news we're going to talk about that came out of that
• 0:30
  event, but also here it is next week.
• 0:33
  We've already got other news to talk about.
• 0:35
  We had a verdict today, the second verdict in the Uber MDL,
• 0:39
  that second bellwether, I think it was a defense pick and the
• 0:42
  third overall Uber sex abuse case.
• 0:44
  The jury returned a verdict in favor of the plaintiff.
• 0:46
  It was only $5000. I know we had the common carrier
• 0:50
  issues that came up. What does this result tell us,
• 0:53
  being as how this was a defense pick?
• 0:56
  Hello, it's Mark. Let me break in for a second
• 0:59
  because this one's worth mentioning.
• 1:01
  John and I are headed to Mass Tort Puerto Rico in a few weeks,
• 1:05
  and with it being the fifth year of the event, this feels like
• 1:08
  the version you don't want to miss and then hear everyone else
• 1:11
  talk about later. We'll be there as the official
• 1:13
  podcast sponsor, recording episodes of the podcast on site
• 1:17
  at Mass Tort Puerto Rico. O stop what you're doing and go
• 1:21
  to masstourpuertorico.com and join John and I in San Juan at
• 1:25
  the lovely Condado Vanderbilt Hotel May 5th through 7th.
• 1:30
  Got your tickets? Cool.
• 1:32
  Now let's get back to the episode.
• 1:34
  Yeah, that's a great question, John.
• 1:36
  It pretty much tells you that this could be looked at from
• 1:39
  both sides as a win, a win, win for everybody except who I would
• 1:43
  say the individual plaintiff in this case.
• 1:46
  So we got in front of the jewelry what we always try.
• 1:49
  It was about a week long trial, ended up coming back in favor of
• 1:52
  playing up, but only awarded $5000.
• 1:56
  You know, I don't know all the specifics of the case, but the
• 1:59
  alleged assault that occurred in this case, the defense was
• 2:02
  really able to bat that down and it involved maybe touching of a
• 2:07
  leg is is what everybody seemed to agree upon.
• 2:10
  Not sure if it got past that. And the jury felt that Uber was
• 2:15
  liable for the conduct of their driver.
• 2:18
  That's pretty much what we've seen in all of the bellwether
• 2:21
  trials, the two in the MDL, the one in the state court, but the
• 2:25
  the damage damages just weren't there according to the jury.
• 2:28
  So a little bit disappointing with the number.
• 2:32
  I think it's helpful for the plaintiffs because we know we
• 2:35
  can get over that common carrier hurdle, but it really shows us
• 2:38
  that you need to have that specific causation and then the
• 2:42
  real damage is there. So this isn't going to do much,
• 2:45
  I don't think, in terms of resolving globally.
• 2:49
  So we'll probably have another couple trials coming up, but
• 2:52
  each side complaint is for a win.
• 2:54
  You know, feel a little bit bad for the individual plaintiff.
• 2:57
  All they had to go through for this case and this trial to only
• 3:01
  get that amount. Definitely disappointing.
• 3:03
  I didn't even realize that unwanted touching was part of
• 3:06
  the MDLI, thought it was excluded.
• 3:08
  That's what the kind of assault in this case was, you know,
• 3:12
  really limited. Maybe there was some more
• 3:14
  alleged conduct, but that's kind of what it it turned on.
• 3:19
  I'm hearing that, you know, it wasn't as severe as the other
• 3:22
  cases we've seen, you know, maybe some sort of rape or more
• 3:27
  involved sexual assault. So I think that's what we're
• 3:30
  taking from that, along with being able to get over that
• 3:33
  common carrier. So not minimizing what the
• 3:36
  plaintiff went through. It was horrible.
• 3:39
  I think they deserved more. I think we all agree on that.
• 3:42
  But a win win from both sides is how it's being spawned.
• 3:45
  Listen, any progress in these cases is good, especially when
• 3:49
  it's a defense pick. I will tell you already this
• 3:51
  morning, I've gotten people who have reached out to us looking
• 3:54
  to now acquire more cases in the Uber MDL, right.
• 3:58
  So to me, this is is a, this is progress.
• 4:01
  It could have gone in the opposite direction.
• 4:03
  Yes, it could have gone much better.
• 4:04
  But I think this is just continuing the momentum of the
• 4:07
  past trial that we had. It's not a, a bad result.
• 4:10
  I don't think again for, you know, anyone other than, you
• 4:13
  know, potentially the plaintiff who maybe, you know, was, was
• 4:16
  rightfully owed a little bit more.
• 4:17
  And we don't know the exact circumstances of the case.
• 4:19
  But from a case acquisition perspective, I think this is,
• 4:24
  you know, it's, it's, it's just progress and how we see these
• 4:28
  cases go. Yeah, it's it's a win at the end
• 4:31
  of the day. And so, you know, we won two out
• 4:33
  of the three trials, even in the third one that we lost out,
• 4:36
  right, came down to the specific facts of that case.
• 4:39
  So there's been other cases that have settled.
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  So people are excited still about this litigation.
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  It's not going to be a slam dunk runaway litigation.
• 4:48
  Uber's fighting like hell, but that's what happens in these
• 4:50
  cases. But all of the news of all the
• 4:53
  other platforms that have been involved in litigation over the
• 4:56
  past couple of months, Uber's sort of been flying under the
• 4:59
  the radar. We saw the lift consolidation.
• 5:01
  We did have that other verdict, but then things kind of went
• 5:03
  quiet until the result that we had today.
• 5:06
  Yeah, that that's true. They're they're staying out of
• 5:08
  the news here, probably a strategy on their part.
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  So we'll see how this goes, but still opportunity to get
• 5:15
  involved, a lot of people that need help, always exciting when
• 5:18
  we get a trial. All right, Speaking of trials,
• 5:20
  another mass tour trial kicked off this week in the District of
• 5:23
  Arizona before Judge Campbell. That's the bar Power port trial.
• 5:27
  What are you looking for in this first bellwether trial with a
• 5:30
  little over 3000 cases pending? Bellwether trials are always
• 5:34
  important, but the first one that really sets the tone.
• 5:37
  So it's huge for the plaintiffs to come out and get a win on
• 5:41
  this first case. This is an MDL that's been going
• 5:44
  on for a number of years. We got good sides, we got good
• 5:47
  lawyers. Hopefully we get a good jewelry.
• 5:50
  That's what it's going to come down to.
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  Expect maybe about a two week long trial.
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  Not going to get into the weeds too much about what happened in
• 5:58
  this individual case. They should be able to pick a
• 6:02
  jury pretty quickly and then we'll get right into it.
• 6:05
  So maybe by the time we talk next week, definitely by the end
• 6:09
  of next week, I think we'll get a verdict.
• 6:11
  I'm hoping for a plaintiff. When this is a plaintiff pick,
• 6:14
  always getting the momentum started, it is hard.
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  Getting to trial is very hard. And now getting the jury to
• 6:21
  believe and compensate the plaintiff appropriately, that's
• 6:24
  the next hurdle. I know you guys are really
• 6:26
  excited about this litigation. Yeah, I've been saying this for
• 6:29
  a while. I believe in this case, I don't
• 6:31
  think there's, you know, a ton of numerosity there as we've
• 6:33
  spoken about depending on the injuries that wind up becoming,
• 6:37
  you know, compensable. But I, I do, I do believe in the
• 6:40
  lawyers behind it. I believe in the science behind
• 6:42
  it and I think this case has some potential.
• 6:44
  Yeah, I I agree with you on that.
• 6:46
  So what? We'll have a verdict shortly and
• 6:48
  hopefully we're celebrating that win.
• 6:50
  Also in other news, in Roundup, we have a huge day in the
• 6:54
  Supreme Court coming up on April 27th with the Roundup appeal.
• 6:58
  We do have the class action settlement in place.
• 7:00
  Why does this argument matter so much?
• 7:02
  Yeah, this argument's huge. So there's the opportunity for
• 7:06
  people in the settlement to opt out, so not to participate.
• 7:09
  And if they do that, their case is going to go forward.
• 7:13
  And one of the main claims we have and we've seen in all of
• 7:16
  these roundup cases have gone to verdict is the failure to warn.
• 7:20
  So basically we're alleging, the plaintiffs are alleging that
• 7:23
  Monsanto and Bear failed to warn that using Roundup could cause
• 7:27
  cancer. And what we've seen in other
• 7:30
  cases in pharmaceutical or medical device cases is that
• 7:35
  these claims are preempted by federal law because the
• 7:39
  manufacturers couldn't change the warning.
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  They couldn't change the label to add these things in because
• 7:45
  the label was approved by some regulatory authority.
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  So here we're seeing for the first time whether or not the
• 7:52
  EPA has that same authority so that a manufacturer can change
• 7:57
  the label on the warning. This has broad implications.
• 8:01
  We have cases going on in paraquat similar type theory.
• 8:05
  There's going to be other cases that come on down the line
• 8:08
  involving similar herbicides. But also think that this could
• 8:11
  impact what we have going on in hair relaxer and other
• 8:15
  litigations where the governing authority is in the traditional
• 8:19
  regulatory authority that we see the FDA and whether or not now
• 8:24
  those labels cannot be changed. So it's going to have a huge
• 8:28
  impact not only on the cases where the plaintiffs opt out,
• 8:32
  but also broader on the Roundup litigation and other litigations
• 8:36
  going forward. Interesting, I did not realize
• 8:39
  about all the connections that were being tied to that one
• 8:43
  decision. It's an argument that we're
• 8:45
  anticipating the defendants making and it's never been tried
• 8:50
  before. It's never really been argued.
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  We we've never lost that argument in some of these other
• 8:55
  cases, but it's going to have a huge impact right away on
• 8:59
  Roundup and then also in Paraquat.
• 9:02
  They have a motion pending, but they're asking that the court
• 9:05
  hold it in abeyance until the Supreme Court ruling comes down.
• 9:09
  I think we're going to have a ruling this summer, probably the
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  end of June, early July. Do you have any idea or any hint
• 9:15
  of which way it's going to land? Well, I'm hoping it lands in the
• 9:18
  plaintiff's side. We got some really good lawyers,
• 9:21
  right? Keller Postman is doing the main
• 9:24
  argument for plaintiffs. They're really experienced of
• 9:27
  the defense side has some really good attorneys too.
• 9:29
  So it's, it's a conservative bench though.
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  So I, I would say right now the scales are tilting a little bit
• 9:35
  in the defense favor. That's why we people did this
• 9:38
  roundup settlement to have everybody in the settlement
• 9:41
  before the decision comes down. So I could see it both ways.
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  It's going to be watched very intently and and I hope we can
• 9:49
  come through and if we do that, that would be a huge win.
• 9:52
  I love Mark, how you're asking the great Fantini for his
• 9:56
  prognostication about what's going to happen in the Supreme
• 9:58
  Court. Like he's he's, he's seeing into
• 10:00
  the future. The great Fantini also call him
• 10:03
  Joe the Oracle Fantini. We're still workshop and names.
• 10:06
  If you guys have any favorites, please put them in the comments.
• 10:08
  All right, moving on, we got some some tea that everyone
• 10:13
  wants to know about MTMP. It was a fun few days in Vegas.
• 10:17
  There's a lot of talk and whispers in the streets.
• 10:20
  What is everyone talking about, Jill?
• 10:21
  Yeah, What I was really surprised about was the
• 10:24
  enthusiasm about Olympic scopes. And we talked about it before
• 10:27
  heading in there. Thought everybody was going to
• 10:30
  be excited, but that that was almost the bell of the ball.
• 10:32
  So it's rare that we have a pre MDL case with that much
• 10:38
  enthusiasm and excitement. I was surprised by how many
• 10:41
  people are in on it. And that just brings me back to
• 10:44
  my glory days of mass torts when we used to sue about a medical
• 10:48
  devices and pharmaceutical drugs instead of, you know, making
• 10:52
  platforms or chemicals in hair relaxers.
• 10:56
  So it it brought me back in the day, you know, when I was much
• 10:59
  younger and it was the traditional old school mass
• 11:03
  tort. And that's what I think people
• 11:05
  are excited about. Should be a good one.
• 11:07
  What were your guys takeaways? I would agree with the Olympus
• 11:10
  was definitely a lot of buzz. I can say that we have received
• 11:13
  a lot of follow up messages from firms looking to get into that
• 11:16
  one. Have a bunch of questions for
• 11:18
  us? Everybody was talking about
• 11:19
  Linear's presentations. That room was packed.
• 11:22
  Everyone wanted to know what Mark had to say about the trial.
• 11:24
  He had some good insights. You're kind of teased the trial
• 11:27
  Academy coming up to learn about what's next.
• 11:30
  Other than that, I think it was just updates.
• 11:32
  You know, people were talking about what happened with with
• 11:35
  Roblox and where that case is going to progress to or not.
• 11:39
  A few people talking about like still trying to deal with their
• 11:42
  campless union dockets. The typical buzz about
• 11:45
  everything that's kind of currently active.
• 11:46
  But I agree with you, like the Olympus scopes was huge Mark and
• 11:50
  I got to sit down with Kelsey Stokes and like talk about it
• 11:53
  with her that episode with her. Like you can click right here
• 11:57
  above and you can actually watch that full episode straight from
• 12:00
  Kelsey. Exactly what that case is about.
• 12:02
  Highly recommend. You can't you check that out?
• 12:04
  Her episode that she did with us on RDMS 6 months prior at MTMP
• 12:09
  was one of our most watched episodes.
• 12:10
  So it's great to have someone like Kelsey leading this
• 12:13
  litigation. I think that's why there's
• 12:15
  probably so much excitement, you know, now that she's with one
• 12:17
  year. You have.
• 12:19
  And that firm behind it, it's like when you see that, but a
• 12:21
  firepower behind the case, you know that there's something
• 12:24
  meaningful there and and Kelsey gets in the weeds about, you
• 12:27
  know, why it's a good case. There is enough instances of use
• 12:31
  of Olympus branded scopes where it warrants further
• 12:35
  investigation, I think from firms to consider a potentially
• 12:38
  acquiring cases. And you know, whether they
• 12:40
  handed them handle them themselves or they refer to a
• 12:42
  firm like Lanier kind of up to them.
• 12:44
  But I, I, yes, I agree with you pre consolidation, this is, it's
• 12:50
  been a while since we've seen something this exciting.
• 12:52
  I think part of it is, I think people like, not the simplicity
• 12:55
  of it, but they understand it. It's a medical device.
• 13:00
  There's documented use of it. It's overwhelmingly have as a
• 13:04
  marking share and the injuries are are pretty substantial.
• 13:08
  So I think the the fact pattern is simple as the old school
• 13:11
  master way that people understand very clearly they can
• 13:14
  understand it and like it's why they get the excitement behind
• 13:16
  it. Yeah, that, that's a great
• 13:18
  point. It, it is a little bit simpler
• 13:20
  like you said. And it, it's got the signature
• 13:22
  injury. So it's not oh, which of the 10,
• 13:25
  which of the 20 Zantac cancers are going to survive.
• 13:27
  Now we're down to 10. It's very clear cut.
• 13:30
  So I'm sure we'll be talking a lot about that.
• 13:33
  We'll we'll see if it cracks the top ten in our power rankings.
• 13:37
  But I don't know, it's a little early for me for the top ten,
• 13:40
  yeah. Well, we'll see what happens.
• 13:42
  A lot of progress the past couple weeks in mass torts, Joe,
• 13:44
  it's like you move a little bit and your lights go on in your
• 13:47
  studio. I don't know what's going on
• 13:48
  there. We will see what happens over
• 13:50
  the next couple weeks. A lot of news, a lot of trials,
• 13:52
  a lot of things happening. As always, stay tuned on Tort
• 13:56
  Talk and catch the best of previous week's mass tort news
• 14:00
  in just about 10 minutes.