Latest / The Jon and Marc Podcast / Tylenol Autism Debate, Depo-Provera Fight & Suboxone Bellwether Prep

Transcript

Tylenol Autism Debate, Depo-Provera Fight & Suboxone Bellwether Prep · The Jon and Marc Podcast

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