Latest / The Jon and Marc Podcast / Mass Tort Showdown: The Roundup Settlement Fight and Talc’s Post-Bankruptcy Momentum

Transcript

Mass Tort Showdown: The Roundup Settlement Fight and Talc’s Post-Bankruptcy Momentum · The Jon and Marc Podcast

• 0:00
  Welcome to Tortalk. I am Mark Rieu here with John
• 0:03
  Robinson and Joe Fantini. As usual this week, roundup hits
• 0:08
  the Supreme Court in a landmark oral argument.
• 0:11
  Plus more roundup fireworks with a class action settlement fight.
• 0:15
  Then a major breakthrough in the topic litigation and the weight
• 0:18
  loss drug cases are heating up on two different fronts.
• 0:22
  Big week. Let's dig into it.
• 0:25
  Yeah, Joe, we had for the first time in a very long time, we had
• 0:29
  the Supreme Court hearing the case that is directly related to
• 0:33
  plaintiff's attorneys yesterday, April 27th.
• 0:36
  Supreme Court heard this case from bare oral argument was
• 0:42
  yesterday. What was this about for those
• 0:44
  who haven't been following us all along and what impact could
• 0:47
  it have? All right, one quick thing
• 0:50
  before we get into this episode. John and I are going to be at
• 0:53
  Mass Tort Puerto Rico. And I'm not saying that their
• 0:56
  5th anniversary is the year to go, but I am heavily implying
• 1:00
  it. It's a milestone near and the
• 1:02
  event has real momentum and we'll be there recording
• 1:05
  episodes of the John and Mark podcast is the official podcast
• 1:09
  sponsor of Mass Towards Puerto Rico.
• 1:11
  So if you've been debating it, stop being weird and just buy a
• 1:15
  ticket. Join John and I May 5th through
• 1:17
  7th in beautiful San Juan and Mass towards Puerto Rico.
• 1:22
  Get all the info and register at Mass towards puertorico.com.
• 1:26
  Back to the show. Yeah, this is a huge case.
• 1:28
  Like you mentioned, maybe once a year, once every other year we
• 1:31
  get a mass toward case in front of the Supreme Court.
• 1:34
  But what we were arguing about yesterday was the preemption
• 1:38
  argument. So this is a case where the
• 1:41
  plaintiff received a verdict of one point to 5 million.
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  It got appealed up. Basically, there was a split in
• 1:48
  authority between the circuits on whether or not a state was
• 1:53
  able to update their warnings and require additional warnings
• 1:58
  after a label had been approved by the government.
• 2:02
  This instance it was under FIFA, so something different than the
• 2:06
  FDA that we see in a drug and device case.
• 2:09
  So the defendants are making the same argument that we see in the
• 2:13
  FDA case is that because the government and regulatory
• 2:17
  authority approved the label, the states aren't able to make
• 2:21
  any changes. Even if they get additional
• 2:24
  information, even if new studies come out, the label can't be
• 2:28
  updated. So it was about an hour and a
• 2:30
  half long oral argument. There were some really top
• 2:34
  players, experienced Supreme Court counsel there.
• 2:38
  We'll see what happens, what we'll have a decision within
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  about 60 days. But I, I don't know how happy
• 2:45
  we're going to be about the outcome if you guys were holding
• 2:48
  my feet to the fire right now. Waiting to see the result on
• 2:51
  this one, but yeah I think doesn't seem to be giving
• 2:55
  positive signs. Yeah.
• 2:56
  You know, a lot of it has to do with the split of the court,
• 2:59
  right? It's 63 right now, so I'd
• 3:02
  probably expect the decision coming down 6354.
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  We'll see what happens. But good news, even if we were
• 3:10
  to lose this, you know it would send waves through mass torts.
• 3:14
  Like we talked about paraquat hair relaxer.
• 3:18
  But the other causes of actions are still out there, right?
• 3:22
  Design defect negligence. This only goes to failure to
• 3:25
  warn, definitely would be a win for the defendants, but you
• 3:29
  know, they're the cases are still viable.
• 3:31
  We just need to go back to the drawing board, maybe work a
• 3:34
  little bit of different angle in some of those cases.
• 3:37
  Sticking with Roundup, we're seeing a flurry of activity in
• 3:40
  this litigation outside of the Supreme Court argument and
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  there's an oral argument scheduled for April 30th in the
• 3:45
  Roundup NDL on a motion to intervene related to the
• 3:49
  Missouri class action settlement.
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  Can you tell us the latest on this argument and this Missouri
• 3:53
  class action? Yeah.
• 3:55
  So we talked about it before. There's a $7.25 billion proposed
• 4:00
  class action in Missouri State court right now.
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  The opt out deadline is June 4th, which is going to be before
• 4:07
  the Supreme Court decision comes down importantly.
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  And then there's going to be a hearing in July, a final
• 4:13
  approval hearing. What we have going on now is in
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  the MDL, well, two law firms filed a motion to intervene.
• 4:20
  Basically, they're seeking the court and the MDL court who
• 4:24
  previously denied a similar class action to get involved in
• 4:28
  this Missouri action and kind of bring a halt to this class
• 4:32
  action settlement, which they say was kind of done too
• 4:35
  quickly. It was done behind closed doors.
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  It doesn't compensate the victims enough and it doesn't
• 4:42
  follow the law. So we have this upcoming
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  argument like you mentioned on the 30th.
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  We should get a ruling rather quickly.
• 4:51
  I'd probably say within 30 days if I was a betting man.
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  I think the MDL court might elect to.
• 4:59
  Not going to VOD with this one. Everything I'm hearing is the
• 5:03
  Missouri class actions going through and that that seems to
• 5:07
  be the most likely outcome. Yeah, hearing, hearing the same
• 5:10
  on our end as well. Yeah, the the two law firms on
• 5:13
  that, it's, it's Weitz and Luxembourg and then the Miller
• 5:17
  law firm. A lot of activity happening in
• 5:20
  Roundup, you know, between the Supreme Court, what's happening
• 5:23
  in Missouri. Hopefully we see Roundup kind of
• 5:27
  finish its cycle around the sun and and come to some conclusion
• 5:31
  by the end of this year. But definitely a lot of progress
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  happening, which is good to see, right?
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  We're getting in, we're getting in court, we're getting some
• 5:38
  decisions being made. We're seeing progress.
• 5:40
  Another case, we've talked about this one for a while, Talcum
• 5:43
  powder, maybe some light at the end of the tunnel here.
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  We've got the the 1st post Johnson and Johnson bankruptcy
• 5:50
  court ordered MDL mediation. What's the current status going
• 5:54
  on with talc? Yeah, and talc.
• 5:56
  I think the disdain between the parties maybe has.
• 6:00
  Taking a step back, we talked a little bit about the Beasley
• 6:03
  Allen disqualification. You know, the majority of the
• 6:07
  plaintiffs obviously don't agree with that.
• 6:09
  They really carried this litigation for a decade plus.
• 6:13
  But now that they're out of the litigation in New Jersey and the
• 6:16
  MDL, we have this first ordered mediation.
• 6:20
  We already have a negotiating group that's in place.
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  We got on the plaintiff side a positive Dolber ruling earlier
• 6:27
  this year. The cases are set for trial.
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  There's going to be a number of cases going to trial outside of
• 6:34
  the MDL this year. We're pretty much winning every
• 6:37
  case. Even the last case that we
• 6:39
  talked about was the Philadelphia $250,000 verdict.
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  Again, not a huge number, but a win for the plaintiffs.
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  So this momentum and the pressure is really building on J
• 6:50
  and Ji. Don't think we're going to have
• 6:52
  a settlement come out of this mediation, but I am hopeful that
• 6:55
  we can get another few court wins, we can get a trial set in
• 6:59
  the MDL and then hopefully maybe this year, beginning of next
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  year, we're talking about a resolution in this litigation
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  that's been around way too long. Yeah, hopefully some clients
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  finally see justice and compensation because it's been
• 7:13
  going on way too long. Rounding off the list, today we
• 7:16
  have weight loss. We have parallel litigations
• 7:19
  ongoing with vision loss and gastrointestinal cases both in
• 7:23
  new in New Jersey and in the MDLS.
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  What are the key developments in this litigation, Joe?
• 7:29
  Yeah, We got a lot of activity going on in the MDL.
• 7:32
  So first, we'll start with vision loss.
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  We have about 70 cases pending there, around the same number of
• 7:38
  cases pending in New Jersey for vision loss.
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  By comparison, in the MDL for the gastrointestinal injuries,
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  we're about 3500 cases, but about two years behind.
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  So we just had a case management conference in the MDL on the
• 7:54
  vision loss cases. We're getting geared up, really
• 7:57
  start getting that litigation moving, trying to schedule the
• 8:00
  all important science day, working on the fact sheet,
• 8:03
  working on some of the initial pleadings.
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  We're still in that initial six months kind of formation of the
• 8:10
  litigation, but we'll have that all in place in the next couple
• 8:13
  months, see that litigation really start to pick up.
• 8:16
  But there's a lot of work and a lot of discovery to be done
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  before we get to that all important Dahlberg hearing by
• 8:23
  talking about the Dahlberg hearing where we're finally
• 8:25
  there in the MDL for the gastrointestinal injuries.
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  You guys, remember we talked maybe six months ago, we we had
• 8:33
  a ruling from the judge who really was focusing the injuries
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  on the gastroparesis, requiring some sort of gastric emptying
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  study, which kind of limited the inventory of those cases.
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  More than 85% of the inventory are gastroparesis.
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  And now we're having the Dolbert hearing.
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  It's scheduled for May 14th. Both sides will be able to come
• 8:55
  in, present their experts, ask them some serious questions.
• 8:59
  Then we'll get a ruling from the judge probably in 60 to 90 days.
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  So before the end of the summer, we'll know if these cases can go
• 9:06
  forward and what injuries are going to be included.
• 9:09
  So a lot of excitement in that litigation.
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  I think we'll see a big uptake in filings after the Dolber
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  ruling. We're at 3500 right now,
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  probably get to six to seven by the end of the year sometime
• 9:21
  next year. It was be above that 10,000
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  threshold. Yeah, 3500 seems low for now.
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  I was expecting this one to be a massive docket just based on the
• 9:29
  total amount of people that use this drug across the nation
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  right now. Yeah, I'm, I'm really expecting
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  it to kick up like I said that the injuries are really focused
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  on gastroparesis. We'll see what comes out after
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  the the Dolber ruling, which ones are going to be viable.
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  But I think we'll get above the 10,000.
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  But you're right, this isn't going to probably be a a 50,000
• 9:52
  Talcar Roundup litigations that some were thinking in the
• 9:55
  beginning. Yeah.
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  We also have some updates, not necessarily news, but for those
• 10:01
  who are closely watching the Uber trial that concluded a
• 10:04
  couple weeks ago, just to keep everybody up to date on what the
• 10:08
  next steps are in that litigation.
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  We do have consecutive trials set in the MDL for the middle of
• 10:15
  September. And then also in California, we
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  have the next bell of the trials slated coming up next month in
• 10:22
  May. There's also a status conference
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  before Judge Breyer set for tomorrow, actually for April
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  29th. So we are seeing progress
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  continue to be made on Uber as we saw Lyft get consolidated a
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  couple months ago. Continue to keep an eye on
• 10:36
  those. The rulings that we had in the
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  previous both state and MDL trials for Uber, I think are,
• 10:44
  are leaning towards us continue to see progress for the
• 10:47
  plaintiff. So Joe, I, I, I am.
• 10:49
  I'm still optimistic about Uber and the direction that we're
• 10:52
  heading. Yeah, I, I agree.
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  Like you said, we're getting these trial dates.
• 10:56
  That's really important. That's what really drives
• 10:58
  settlement and honestly in it and mass torts, we don't see six
• 11:02
  trials in a year. It's kind of unheard of.
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  So if we can get those trial dates to hold that you mentioned
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  6 verdict, maybe the defendants get lucky, they get one of
• 11:12
  those. But if we go two or three on
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  those cases, I think we could kind of be talking about winding
• 11:17
  down this litigation. We talked a little bit before
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  about how some of the filings indicate their there could be
• 11:23
  settlements ongoing and some individual trial cases.
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  I wouldn't be surprised if we saw some of those other trial
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  cases fall off the docket because of that.
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  But the pressure is definitely on them.
• 11:36
  You know, 2 to 2 out of 3 is a good place to be at.
• 11:39
  We'll see what happens in this next trial.
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  It's in state court. You mentioned there that's where
• 11:44
  the defendants did get the win. So we'll we'll see how that
• 11:47
  plays out. Yeah.
• 11:49
  And you know, we're also seeing progress at the at the state
• 11:53
  level, right. There's there's lawsuits for as
• 11:56
  we see for a lot of these technology platforms, there are
• 11:58
  these the MDL and that the California lawsuits.
• 12:01
  And then we also see the lawsuits directly filed by the
• 12:04
  state attorney generals against Uber.
• 12:07
  We're seeing that happen also in Roblox.
• 12:09
  And very interesting news that has come out the past couple
• 12:11
  weeks with Roblox resolving some of those cases with the Attorney
• 12:15
  General, which part of those settlements not just monetary,
• 12:18
  it's actually making changes to the platform.
• 12:20
  Yeah, so that, that's a good point.
• 12:22
  You know, we saw him, I think 3 so far at this point, 10 to 13
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  million each state will probably end up seeing 4045 of those
• 12:32
  Attorney general's do some more things.
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  I you know, the money helps, right?
• 12:37
  It goes to training, it goes to schools.
• 12:40
  But more importantly, it's, it's about bringing about the changes
• 12:43
  like you talked about to the platform.
• 12:45
  So and every one of these mass torts, we talked about it
• 12:48
  before, before we can get to to settlement, the defendants need
• 12:52
  to make these changes. So whether it's putting another
• 12:55
  Zantac or Roundup on the market or making changes to the
• 12:59
  platforms to limit their liability, that that's a key
• 13:02
  component that we always see before we really get serious
• 13:06
  about negotiations. Yeah, they're, they're
• 13:09
  effectively making changes that are going to prevent these
• 13:12
  things from happening in the future, hopefully, which from a,
• 13:16
  a plaintiff's lawyer perspective means once those changes go into
• 13:19
  place, we're not going to see the ability to actually get
• 13:22
  these cases anymore. And we're going to be looking at
• 13:24
  a finite pool. So it's good, right?
• 13:27
  The the issues stop happening, children stop being affected.
• 13:30
  But it does change the dynamic just from a business perspective
• 13:33
  for any attorneys who are looking at these cases.
• 13:35
  Yeah, certainly. But you know that that's part of
• 13:38
  why we do it is we want to help people and and bring about
• 13:41
  changes. So trust me, roadblocks would
• 13:43
  not make any of these changes if there weren't any lawsuits or
• 13:47
  the Aga, you know, weren't coming down on them.
• 13:50
  So. Yeah, they're they're not making
• 13:52
  the changes of the kindness to their heart.
• 13:54
  There there's a reason so got to keep the pressure up and I think
• 13:58
  it's been good. We talked about you know in this
• 14:00
  episode, this multi prong attack, right?
• 14:03
  That's how you make change in these cases.
• 14:06
  State court MDLSAG's keep the pressure going because they have
• 14:11
  such a resource pool, so many attorneys, They can fight,
• 14:15
  fight, fight back, but we we can keep crashing and they'll
• 14:20
  ultimately make these changes, which helps the clients, which
• 14:24
  is what we're all here trying to do.
• 14:25
  And then next week we're recording live, me and Joe, Me
• 14:29
  and not Joe, me and John are recording live from Mass towards
• 14:32
  Puerto Rico. Yeah.
• 14:33
  Joe, you're welcome to join us in Puerto Rico on the beach.
• 14:36
  Yeah, it's. Nice.
• 14:37
  I I don't know. We'll zoom you in if we have to.
• 14:40
  It's all good. We'll be live in in Puerto Rico,
• 14:42
  at Mass towards Puerto Rico. The John and Mark podcast of
• 14:45
  their recording will be recording Tor talks live with
• 14:49
  Joe zooming in as well as we get in the inside scoop on what's
• 14:52
  going on from the who's who. That is on the attendee list for
• 14:56
  Mass towards Puerto Rico, which is it is quite a who's who list
• 14:59
  of lawyers attending. And it is quite nice because
• 15:03
  there's not a lot of vendors going, but there's a lot of
• 15:05
  lawyers going. Yes, we we looked at that list
• 15:09
  and my gosh, listen, literally everybody who is making
• 15:14
  decisions in these cases is there start planning your summer
• 15:17
  linear trial Academy coming up in June.
• 15:20
  We're not that far away. That's probably the next big
• 15:22
  event you need to have on your radar after mass towards Puerto
• 15:25
  Rico. And if you do not subscribe to
• 15:28
  the John and Mark podcast and you're just catching this tort
• 15:30
  talk on LinkedIn or you're catching a one off episode on
• 15:33
  YouTube, you do not want to miss next week's podcast guest.
• 15:37
  It is a very special surprise. Probably the best guest we've
• 15:40
  had so far, right Mark? I think so.
• 15:43
  Up there pretty high. Other than Joe, we love Joe.
• 15:45
  Yes. All right, everybody, thank you
• 15:48
  so much for joining us on this week's Tort Talk.
• 15:50
  We've got a lot of news breaking, a lot of things coming
• 15:53
  out over the next couple weeks. We'll be in mass towards Puerto
• 15:55
  Rico next week, recording live. We can't wait to see all of you
• 15:59
  there who are joining us. Everyone else, catch a recording
• 16:02
  with Joe on the usual schedule. Thank you for the best 10
• 16:05
  minutes in mass torts each week. Thanks, Joe.
• 16:07
  Thanks, Mark.