Latest / The Jon and Marc Podcast / Roundup’s Supreme Court Surprise… and a Tough Week for Zantac & Baby Food

Transcript

Roundup’s Supreme Court Surprise… and a Tough Week for Zantac & Baby Food · The Jon and Marc Podcast

• 0:09
  Welcome to Tort Talk. We're a couple of weeks away
• 0:11
  from the new year. We've got Joe Fantini here.
• 0:14
  I'm John Robinson, Mark Ryu in Atlanta.
• 0:16
  We're going to talk about a few torts where we have some not so
• 0:19
  great news to share, but we always giving you the open,
• 0:22
  honest opinion and news about what's going on in mass torts.
• 0:26
  First, we're going to talk about Roundup.
• 0:28
  Joe, we had a huge development in this litigation.
• 0:30
  We have the solicitor general now recommending that the
• 0:32
  Supreme Court actually hear Monsanto bears appeal on the
• 0:36
  preemption issue. We've been talking about this
• 0:37
  for weeks, for months. What does this actually mean for
• 0:40
  the litigation going forward and where do we really go from here?
• 0:43
  This was a huge development. Like you mentioned, Monsanto's
• 0:47
  Hail Mary got answered. Basically what was going on in
• 0:50
  the litigation is we had a split between the jurisdiction about
• 0:54
  whether or not the plaintiffs failure to warm claim were
• 0:57
  preempted. So just by way of background,
• 1:00
  usually in a drug case, the FDA approves the warning in a label
• 1:04
  on a medication. And in those cases, the
• 1:06
  defendants say, hey, we can't alter or change these labels in
• 1:10
  any way at all because the FDA approved it.
• 1:12
  They're trying to now in this case Monsanto, expand that law,
• 1:17
  saying that in this instance, the EPA approved the warning
• 1:21
  label for Roundup and didn't require cancer, a warning, and
• 1:24
  therefore they weren't able to change it at all.
• 1:27
  And because of that, all the failure to warn state law cases
• 1:31
  and those claims should be kicked out.
• 1:33
  There was a split between a couple courts on whether or not
• 1:36
  that was the correct application.
• 1:38
  The majority of the courts said that the state law claims can
• 1:41
  move forward, but Monsanto appealed it up.
• 1:44
  The solicitor general just came back and said to the Supreme
• 1:47
  Court, I recommend you take up this issue and make a final
• 1:51
  ruling. It's really important because
• 1:53
  typically when the solicitor general makes a recommendation,
• 1:56
  60 to 70% of the time the Supreme Court ends up following
• 2:01
  what the solicitor general suggests.
• 2:03
  So we'll know in January if this case is going up.
• 2:05
  But it's a huge development and definitely a win for Monsanto.
• 2:09
  But there's still a lot to be positive about on these cases,
• 2:12
  and the cases won't die even if we get a bad ruling.
• 2:16
  And this is specifically addressing the state filings,
• 2:19
  not the MDL. It's going to apply to both
• 2:22
  because even in the MDL, we apply state law claims, but it's
• 2:26
  about whether or not the failure to warn claims can survive in
• 2:29
  these cases that we have other claims as well.
• 2:32
  We have defective design, we have negligence, we have
• 2:35
  manufacturing claims. So even if the failure to warn
• 2:38
  state law claims get kicked out, the cases still go forward.
• 2:42
  Seth talked about this at your Roundup podcast a couple weeks
• 2:45
  ago. He was right on the issue,
• 2:47
  predicted it exactly as we're seeing it play out now.
• 2:51
  Moving on to Zantac, we feel important to provide both
• 2:54
  positive and negative updates to keep the listeners informed.
• 2:57
  So we had another set back coming out of Delaware State
• 3:00
  court last week. What did the court address in
• 3:02
  the most recent ruling? Like you said, Mark, it's
• 3:05
  important to keep it real here. That's why everybody tunes into
• 3:08
  tort talk. But what was going on in the
• 3:11
  roller coaster of the litigation is we had scored some wins in
• 3:15
  Delaware State court where the trial court allowed in our
• 3:18
  experts. The defendants appealed that
• 3:20
  decision up to the Delaware Supreme Court.
• 3:23
  The Delaware Supreme Court said the trial court applied the
• 3:26
  wrong standard and plaintiffs experts didn't meet the
• 3:29
  threshold and they should be excluded.
• 3:31
  In response to this, the plaintiffs filed a motion
• 3:34
  seeking to have an amended scheduling order put in place
• 3:37
  and allowing us to now put forward new experts based upon
• 3:41
  what we considered this new and heightened standard set forth by
• 3:44
  the Delaware Supreme Court. Unfortunately, the trial court
• 3:47
  just came down last week in about a 10 page opinion and said
• 3:51
  that wouldn't be fair, that's not the proper way to do it and
• 3:54
  is asking for further briefing on the parties about how this
• 3:58
  should play out and what the litigation looks like going
• 4:00
  forward. So the plaintiff said hope that
• 4:02
  we would get to come forward, submit supplemental amended
• 4:05
  expert reports to further support our claims.
• 4:08
  It doesn't look like that's going to happen.
• 4:10
  So the Delaware Supreme Court, it's definitely favoring the
• 4:13
  defendants right now. So we're going to have to keep
• 4:15
  an eye on this and see how it shakes out for the rest of 26.
• 4:19
  And this was a litigation that we all thought was gone a few
• 4:23
  years ago, and then it came back when Delaware opened up.
• 4:25
  And now we're dealing with some turmoil again.
• 4:28
  So appreciate the updates here. We're going to move on to toxic
• 4:32
  baby food. This is one that's been around
• 4:33
  for a couple of years. We had a surprising expert
• 4:36
  ruling come out of California State court last week.
• 4:38
  This week, we have the Dauber hearing in the MDL.
• 4:41
  Where do we currently stand with the toxic baby food litigation?
• 4:43
  Like you mentioned, John, we had the parallel proceedings going
• 4:47
  on like we often do in these mass torts in the state court in
• 4:50
  California and then also in the MDL also happens to be in
• 4:55
  California federal court. But these cases were really
• 4:58
  moving in parallel. The timeline was really similar
• 5:01
  and a pretty surprising ruling, I'll say, is that the state
• 5:05
  court trial level excluded the plaintiffs toxicology expert and
• 5:09
  said basically the expert wasn't able to pinpoint which one of
• 5:14
  the baby food was being used by the plaintiffs and how that
• 5:18
  attributed to the problems that they were having.
• 5:20
  It ended up excluding the plaintiffs experts, which is
• 5:23
  definitely a set back for us in that litigation overall.
• 5:27
  And that's on the state court level.
• 5:29
  And now this week, there's an entire week dedicated to
• 5:31
  Dahlberg hearings, various experts on various issues before
• 5:35
  the MDL judge, and we'll probably have a ruling on that
• 5:39
  within 90 days or so. But these are crucial issues,
• 5:42
  and if we're able to survive the Dalbert in federal court, this
• 5:45
  litigation is going to blow up and we're going to see a huge
• 5:48
  increase in filings. But even with the set back in
• 5:50
  the California State court proceeding, we still have some
• 5:53
  optimism. But again, that wasn't a good
• 5:55
  day for plaintiffs, and it's important to keep everybody
• 5:58
  updated about what's really going on in these litigations.
• 6:01
  For toxic baby food, because we are dealing with a number of
• 6:04
  issues that are affecting children, can you clarify for
• 6:06
  those watching, what are the actual effects on the children
• 6:10
  that are being looked at in this litigation?
• 6:12
  The two main signature we're looking at it's autism and ADHD.
• 6:16
  So it's the similar type injuries that we're seeing in
• 6:19
  that Tylenol litigation. So what we're alleging here,
• 6:22
  it's a similar plaintiff Palomas with these minors, but we're
• 6:26
  saying that they use this toxic baby food when they were very
• 6:29
  young. So instead of the mother taking
• 6:31
  the Tylenol while they're pregnant, it's these children
• 6:34
  actually taking it. There's criteria for a certain
• 6:36
  amount of time, for a number of years and then developing and
• 6:40
  being diagnosed with autism and ADHD.
• 6:42
  So it'll be really important what the MDL court decides here.
• 6:46
  But remember, these are minors and there's more time in these
• 6:50
  cases to develop our theories, right?
• 6:52
  We're not facing a statute of limitation.
• 6:54
  So I could see this litigation going to state court, maybe in
• 6:58
  other jurisdictions like Illinois or Philadelphia, if we
• 7:01
  end up not getting the best ruling out of the MDL court.
• 7:05
  JPML hopefully some positive news for plaintiffs to end the
• 7:08
  week off right. We had the last JPML hearing in
• 7:11
  Austin, TX last week. What are the the key cases in
• 7:14
  front of the panel and when should we expect a decision?
• 7:18
  Yeah, we're all waiting to hear from the panel.
• 7:20
  Typically, we get a decision within about two weeks of the
• 7:23
  hearing. The last hearing was on December
• 7:25
  4th. This is the last hearing of
• 7:27
  2025. There were really a few cases
• 7:30
  that everybody's watching. The 1st is the weight loss
• 7:32
  litigation. We already have the MDL form for
• 7:36
  the gastrointestinal injuries. Now we're waiting to see whether
• 7:39
  or not these vision loss injuries are going to be
• 7:41
  combined into the same MDL with those injuries, the
• 7:45
  gastrointestinal ones, or if there's going to be two
• 7:48
  different MDL's likely before the same MDL judge.
• 7:51
  That's what we saw happen on the state court level in New Jersey.
• 7:55
  I'm expecting the similar ruling coming out of the panel here.
• 7:58
  And then the other cases that we're watching, finally getting
• 8:01
  back to what everybody's focusing on in 26 is going to be
• 8:04
  these platform cases. So we're looking to see whether
• 8:07
  there's going to be a Roblox MDL form, these deal with the more
• 8:11
  sexual abuse type claims that are coming out.
• 8:14
  And then there's also going to be a petition heard about
• 8:17
  whether or not a a video game addiction MDL is going to be
• 8:20
  formed. So we have some traction in
• 8:22
  state court level for those type of cases, but we're really
• 8:25
  watching those 3 rulings to come down.
• 8:28
  I think we'll end up pretty positive outcome from this with
• 8:32
  getting these MDL forms. And then those will probably be
• 8:35
  some of the biggest cases in 2026.
• 8:38
  We still got a couple weeks left.
• 8:39
  There's still a bit more news that we'll probably see roll out
• 8:42
  over the remainder of the year. Make sure if you're watching us
• 8:45
  on YouTube that you subscribe to our channel to see exactly when
• 8:48
  we release our newest episodes of Tortalk.
• 8:51
  Make sure you subscribe on Apple Podcasts.
• 8:52
  You can watch us on LinkedIn. You can see us on Instagram, on
• 8:55
  Facebook, Wherever you are, we are.
• 8:57
  Thank you so much, Joe, for joining us.
• 8:59
  We'll be back next week with the latest updates in Mass Tour.
• 9:02
  It's in the best 10 minutes in mass torts each week here on
• 9:05
  Tortalk. Thanks, Gerald.
• 9:07
  Thanks guys.