Latest / The Jon and Marc Podcast / Tylenol Autism Debate, Depo-Provera Fight & Suboxone Bellwether Prep
Transcript
- 0:09Welcome back to Tort Talk. I'm John Robinson, 1/2 of John
- 0:12and Mark. Mark is out this week, but we
- 0:14still have Joe Thanks for joining us.
- 0:16We are here to talk about the latest and greatest in mass
- 0:19torts. And this week we saw some news
- 0:22break outside of the legal space, some really big news that
- 0:25the administration making some announcements about the link or
- 0:28potential link between Tylenol and autism.
- 0:31Definitely the biggest story dominating the news cycle this
- 0:33week and obviously dominating mass towards the administration
- 0:36just announced that the FDA is putting new guidelines for
- 0:40pregnant women taking Tylenol. We talked about this litigation
- 0:43in a prior episode, but how do you think this announcement is
- 0:45going to impact this appeal, if at all?
- 0:47Yeah, like you said, John, this is the biggest news item
- 0:51dominating everything. So what happened was the
- 0:53administration came out and said that there's an association
- 0:57between pregnant women here taking Tylenol and then also
- 1:02autism and ADHD. As a result of that, the FDA is
- 1:05putting out the new guidelines and basically they're suggesting
- 1:09that women who are pregnant only use for a short amount of time
- 1:14and the lowest dosage possible. So what they're saying is that
- 1:18there's this association which us on the plaintiff side have
- 1:21believed for years, but there hasn't been a causal connection,
- 1:25a firmly determined yet. It seems like that's still up in
- 1:28the air. And this is something what we've
- 1:30been arguing about in these cases that you remember that got
- 1:33kicked out back in December of 23.
- 1:35So in those cases, we made the same exact argument that the
- 1:38acetaminophen was causing autism and ADHD.
- 1:42The court ultimately rejected our expert opinions and excluded
- 1:46them. We appealed that up to the
- 1:48Second Circuit. In about two weeks from now, in
- 1:50the first full week of October, we have oral arguments on that.
- 1:54So in the Second Circuit we usually see about 4000 to 4500
- 1:58appeals each year and what we should expect is a decision in
- 2:02about four to six months. So in early 26 we're going to
- 2:05see if the court allows our experts to now come in.
- 2:08One important piece of information that I thought was
- 2:11really important to share is originally when we got our
- 2:14experts excluded, the defendants relied upon the opinions of the
- 2:18FDA that said it was safe for use in pregnant women.
- 2:21So now that FDA is on the plaintiff side here, it'll be
- 2:25really interesting to see how the Second Circuit comes down.
- 2:28But this could totally change the litigation overall.
- 2:32And even if we lose in the Second Circuit, I expect there
- 2:35to be a lot of litigation in state court for acetaminophene.
- 2:38Going to be the biggest mass tort of 2026.
- 2:41Mark that down. Yeah, a lot of information
- 2:44coming out. The public has a lot of
- 2:46questions. We've definitely seen an uptick
- 2:48in search volume around Tylenol and autism for people just
- 2:51trying to understand what's real, what's not.
- 2:54So it'll be interesting to see how this plays out over the
- 2:56next, call it 6 to 12 months and whether or not this litigation
- 2:59winds up firing back up again. In other news, Depo Provera, we
- 3:03have the preemption argument next week.
- 3:06We're up to about 800 cases pending in the MDL.
- 3:09What should we expect to see at that Depo hearing next week?
- 3:12Yeah, This whole litigation pretty much depends on the
- 3:14outcome of this hearing. So basically what we have is the
- 3:18defendants arguing that plaintiff state failure to warm
- 3:21claims, they're all preempted. And basically what they're
- 3:24saying is they even went to the FDA in 24 and suggested a
- 3:28warning related it to Depo Provera and these brain tumors
- 3:33and the FDA said none was needed.
- 3:35That really isn't the full story from our perspective.
- 3:38What information did they have, when did they have it?
- 3:41What exactly was it in this suggested warning?
- 3:44And they could have even in our opinion made some changes
- 3:47without the FDA approval. So if we're able to beat back
- 3:51this motion, the litigation is going to take off and then the L
- 3:54expect to see huge filings there.
- 3:57If not, if we're unsuccessful, expect to see the the litigation
- 4:00to pivot and go to state court. So this is a crucial hearing.
- 4:04Usually in mass tort, we're successful at this preemption
- 4:08argument. It's made in pretty much every
- 4:09case. But the defendants do think they
- 4:12have a stronger argument here because of what they presented
- 4:15in 24. Fortunately, we're expecting a
- 4:17ruling before the end of the year, probably 30 to 60 days.
- 4:20We'll know what's going to happen in this step.
- 4:23Rubber Bear. MDL.
- 4:24Do you have any idea about the scope of the number of cases
- 4:29that have not been filed yet for Depo and brain tumors?
- 4:33As we talked about before, there was a previous order from the
- 4:36MDL judge instructing leadership to file all of their cases.
- 4:40So in the last month, we saw an increase about 3 or 400 cases.
- 4:44I know there's a lot of firms that are still investigating
- 4:47cases. I would imagine that if we're
- 4:49successful here on this preemption argument, I think
- 4:52that this litigation will end up seeing somewhere between 25 to
- 4:56maybe 35,000 cases. The proof's a little bit harder
- 5:00in these cases because the records are going back twenty,
- 5:0330-40 years. So getting evidence to prove
- 5:06usage of the Depo Rivera is a little bit harder than we
- 5:09typically see. But this will definitely be a
- 5:11huge mass tort. It won't be quite as big as
- 5:14Roundup or Johnson and Johnson, but it would definitely rise to
- 5:18the top three if it was an act of mass tort with all of the
- 5:21cases filed right now next. We've got social media
- 5:24addiction. This one's been going on for
- 5:26about half a decade now, and we finally have a case management
- 5:29conference difference being held last week where both sides
- 5:32presented competing proposals for that initial bellwether
- 5:34trial. What can you tell us about the
- 5:36status of the social media addiction litigation?
- 5:38So in the social media addiction, we have again an MDL
- 5:41going on and then a parallel state court proceeding, the
- 5:44state court proceedings in the JCCP out in California.
- 5:48That's where this first initial bellwether trial is going to be
- 5:51conducted. It's scheduled to kick off in
- 5:53the beginning of November. It's going to be an individual
- 5:56plaintiff case. There's some cases that are
- 5:58individual plaintiffs and then and there's also some school
- 6:01district cases as well. There's about 2000 or so cases
- 6:05filed in the MDL. And so we'll expect a ruling
- 6:08hopefully before the end of Thanksgiving.
- 6:11We've gotten some positive rulings on some motions to
- 6:14dismiss recently, but this is 1 to definitely keep an eye on,
- 6:18and it might even give us a blueprint for the video game
- 6:20addiction, which is another litigation that looks like it's
- 6:23about to explode. Yeah, a lot going on over the
- 6:26past few months across all these litigations.
- 6:28It's good to see some movement happening and that initial
- 6:30bellwether trial coming up just about little over a month on
- 6:33Suboxone. That's a a case where there are
- 6:37potentially many, many plaintiffs who may have been
- 6:39affected here. We've got about 20,000 already
- 6:42filed in the MDL. We've got about 500 cases that
- 6:45are in the process of being worked up.
- 6:47What's the status of moving these cases towards trial?
- 6:49Right. Like you mentioned there, John,
- 6:51the initial group of 500 cases where the cases where the
- 6:54plaintiffs had to submit the fact sheets, submit record proof
- 6:58of usage and die diagnosis of an injury.
- 7:01The idea was to pare down that initial 500 down to about 50
- 7:05cases. And then from there, we were
- 7:07going to get down to about 15 to 20 cases that we're going to get
- 7:10further worked up through the bellwether process.
- 7:13So we're still working through that initial batch of 500.
- 7:16It's taken a little bit longer than the court and parties
- 7:19expected, but we should have that number finalized here and
- 7:22be able to get towards the bellwether process sometime next
- 7:26year. It might even be more than a
- 7:27year until we get a resolution in that case.
- 7:30But getting records, getting all the providers to comply, it's
- 7:33been a little bit burdensome. Keep an eye out in that
- 7:36litigation for an updated case management court order coming
- 7:39out probably in October of November related to the more
- 7:43recently filed cases in the summer of 25.
- 7:46That will set the deadlines for the fact sheet and everything
- 7:48you need to know. Great, thank you.
- 7:50Another higher volume case, hair relaxer had a lot of attention
- 7:54last year. You see firms starting to pay
- 7:57more attention to hair relaxer recently.
- 7:59It's a large, large MDL docket. We've got about 11,000 cases
- 8:02pending. We've really seen a flurry of
- 8:04activity with expert discovery deadlines.
- 8:06But keeping Science Day for early January 2026 and setting
- 8:10deadline of April 26 for expert discovery, What do these rulings
- 8:14mean for the litigation? Yeah.
- 8:16It's just really keeping everybody on track here.
- 8:18So like you mentioned this litigation, we have about 1000
- 8:21filed cases in the MDL. We have a couple state court
- 8:24proceedings going on, but we're really focusing on the cancer
- 8:28cases in the MDL. And like you said, we have that
- 8:30all important science day scheduled in the beginning of
- 8:33January of 26th. That's basically an opportunity
- 8:37for the parties to come in, bring some of their experts,
- 8:40explain the science, explain the background, explain the evidence
- 8:43to the court to get them really educated.
- 8:46So then when we present those expert opinions and then we have
- 8:49the hearing, the all important Daubert hearing, the court has
- 8:52that background and familiarity with the issues and the signs so
- 8:56they can better understand it. But basically, it's looking like
- 8:59right now, sometime in the summer of 26 is when we'll have
- 9:02that initial bellwether trial. We've seen it in other
- 9:05litigations such as C Pap, more recently here in the A triple F
- 9:10right before the Dalbert hearings is when there's that
- 9:13huge uptick in activity and the settlement discussions really
- 9:18get intense. So I anticipate we're going to
- 9:20see a number of cases filed through the rest of the year,
- 9:23probably 1500 to 2500 more cases and then in 26, a mad dash
- 9:28hopefully before a settlement in the second quarter of 26.
- 9:32Really great to see that progress today we've covered
- 9:34hair relaxer, Suboxone, Tylenol, social media addiction, Depo
- 9:37Provera. If there are cases that you are
- 9:40interested, those of you watching and getting more
- 9:42information about, please leave a note in the comments, send Joe
- 9:45or us an e-mail and we'll be sure to get you updates on those
- 9:48case types. We also look forward to seeing
- 9:50everybody at MTMP. We're about a month away from
- 9:52the biggest mass torque conference of the year at the
- 9:55Bellagio. Joe, Mark myself will be there.
- 9:57We'll be planning some special interviews that will we'll be
- 10:00doing while we're on site. We'll do an episode of Tor Talk
- 10:03while we're on site and we're really looking forward to that
- 10:05event and meeting everybody who has been a part of watching
- 10:07these episodes over the past few months.
- 10:10Yeah. Thanks for having me, John.
- 10:11Look forward to seeing you out in Vegas in a couple weeks.
- 10:14Yep, those of you watching, we'll see you next week for Tor
- 10:16talks.