Latest / The Jon and Marc Podcast / $966M Talc Verdict Rocks J&J as Zantac, NEC, and Depo See Major Shifts

Transcript

$966M Talc Verdict Rocks J&J as Zantac, NEC, and Depo See Major Shifts · The Jon and Marc Podcast

• 0:09
  Welcome back to Tort Talk. Today we've got Joe, Fantini,
• 0:12
  Mark and I, one week before MTNP.
• 0:14
  If you're going to be headed to the conference, make sure you
• 0:16
  reach out to us. You can message us on Instagram.
• 0:19
  We'll be at the conference all week.
• 0:20
  We look forward to meeting you in person.
• 0:22
  But today we've got 4 torts that we're talking about and we're
• 0:25
  starting with talcum powder. There was big news this week, a
• 0:29
  huge 900, $166 million verdict against J&J in a miso case.
• 0:33
  What are you expecting to see with this litigation as we're
• 0:36
  about two weeks out from the first ovarian cancer trial set
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  to kick off in California? Huge verdict.
• 0:41
  Like you mentioned, John, coming out of California, it's
• 0:43
  interesting that's pretty much the same venue where we have the
• 0:47
  first bellwether in the ovarian cancer case kicking off in about
• 0:51
  two weeks. So November 3rd, the 1st post
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  J&J ovarian talcum powder trial is going to kick off.
• 0:59
  Expect the proud to last somewhere for about a month, six
• 1:02
  weeks. It doesn't look like we'll have
• 1:04
  a verdict before Thanksgiving, but plaintiffs have previously
• 1:08
  got some very favorable verdicts out in that jurisdiction.
• 1:11
  We have a great jury pool out there.
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  So based upon J&J's previous result a couple weeks ago there,
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  I think they're a little worried about this case.
• 1:20
  Hopefully it's going to help put some pressure on there to get
• 1:23
  some sort of global settlement done.
• 1:25
  I don't think we're going to get a global done before this trial
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  kicks off. So we'll either hear that this
• 1:30
  case is postponed because there's a settlement or we'll be
• 1:33
  talking about a verdict in six weeks from now, which, if there
• 1:36
  is one, should be a very large number in favor of plaintiffs.
• 1:39
  All right, moving on to the next one, Zantac oral arguments in
• 1:43
  the Second Circuit were held last week.
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  How did it go and what was this argument about?
• 1:49
  Right. So we've been talking a lot here
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  about the Delaware State court where the Zantac litigation is
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  really focused. We have other cases going on in
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  California State court, Illinois State court, but we had a really
• 2:01
  positive expert ruling in Delaware State court originally
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  that got overturned on appeal and that brought some momentum
• 2:08
  towards some settlements that were announced with some of the
• 2:10
  defendants. Meanwhile, in the MDL, everybody
• 2:13
  remembers a couple year ago where the judge excluded all of
• 2:17
  our experts, said that there was no basis to allow them in.
• 2:20
  Finally, just last week, we had the oral argument in the Second
• 2:23
  Circuit where we were arguing in essence, that the judge in the
• 2:26
  MDL overstepped the bounds and acted beyond the role of a
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  gatekeeper, which is the court is supposed to do and say, hey,
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  whether or not the expert relied on the typical information and
• 2:38
  studies that are relied upon and use reliable methodology.
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  We were saying that the judge kind of put on the white coat
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  and assume the role of kind of fact Finder and saying, hey,
• 2:48
  this was accurate. This wasn't.
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  And we were arguing there that the judge went a little bit too
• 2:53
  far and that if the judge applied the proper standard,
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  which was that as a gatekeeper, our experts should come in like
• 3:00
  they have in the other jurisdictions.
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  And then that ultimately could revive 10s of thousands of cases
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  would be one of the greatest comebacks of mass toward
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  history. So we'll see what happens there.
• 3:11
  But what's really important and interesting, Mark, is this is
• 3:14
  the same Second Circuit where we're going to be arguing on the
• 3:17
  Tylenol MDL where we had those cases dismissed previously,
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  similar type of argument. Did the judge go too far and
• 3:25
  acted as a flag Finder, evaluating in really detail what
• 3:29
  the experts said? And ultimately, can those
• 3:31
  Tylenol cases come back? So hundreds of thousands of
• 3:34
  cases at play between those two litigations.
• 3:37
  I think we'll have a ruling in both of them in Q12026.
• 3:41
  Wow, so this is really the place to watch for two huge mass torts
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  early next year. Yeah, the Second Circuit's got a
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  lot of activity and a lot of interest from the plaintiffs bar
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  and the defense bar in the mass tour world.
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  Next, we have NEC. We know that the bellwether
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  trial was dismissed over the summer.
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  I think there's a case management conference coming up
• 4:01
  either this week or next week that should set the table for
• 4:04
  what's happening throughout the rest of the year.
• 4:06
  Can you tell us whatever it is that you know about that
• 4:08
  conference? Right.
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  So we have a upcoming case management conference and we're
• 4:12
  pretty much expecting the judge to lay out and identify how the
• 4:16
  bellwether process this is going to go moving forward here.
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  So we had two rounds of cases get worked up pretty far for
• 4:22
  bellwether. Both of them ultimately got
• 4:25
  kicked out and dismissed. So we're trying to come up with
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  a little bit better strategy. The filings over on the MDL
• 4:32
  pretty flat right now. We're sticking around 760 cases.
• 4:36
  I don't think there's going to be a huge uptick there.
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  There's a lot of activity in state court.
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  We talked about the judge who just entered the census
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  requirements in September. So by the end of this year,
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  we'll really have a good idea on the total number of cases that
• 4:51
  are going to be in the MDL. The framework for the next
• 4:54
  bellwether case is what I would love to see.
• 4:57
  And we've seen in other cases is when there's a bellwether case,
• 5:00
  there's a provision in the order that says here's the backup
• 5:03
  case. So often times the case gets
• 5:06
  worked up, spent a lot of time and effort by the parties, and
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  then it settles or gets dismissed on the eve of trial.
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  Then we have to work three or six more months to get another
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  bellwether case ready and worked up.
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  Well, we've seen a lot in Philadelphia mass tour program.
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  They're known for teeing up that backup case.
• 5:23
  Hopefully we can get something similar in NEC so we can keep
• 5:27
  the pressure on, get some of these cases to 26 and see what
• 5:30
  really is going to play out in this litigation.
• 5:33
  On to the next one, Depo Provera.
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  We are waiting on the preemption ruling, but while the decision
• 5:39
  is pending, we have seen a flurry of activity.
• 5:42
  What's going on? Yeah.
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  We've seen a huge uptick in filings.
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  We talked two or three months ago, there was only about 500
• 5:49
  cases in the MDL. Right now we're over 1200 cases
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  pending. So we've doubled the total
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  number of cases in two to three months.
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  But a really important and positive ruling just got issued
• 6:00
  at the end of September by the judge.
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  And there's certain requirements, kind of proof of
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  injury, proof of uses that every plaintiff has to put forward
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  really early in the process here.
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  And we were having trouble some of the plaintiffs getting
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  records going back 1020 years. And ultimately those cases could
• 6:17
  be subject to dismissal. But the judge entered this
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  positive ruling, which allows plaintiffs to make certain
• 6:23
  representations or affirmations that they tried to get the
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  records. There's no record statements or
• 6:29
  these facilities are closed. So it doesn't shut the door on
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  those claims just because the plaintiff couldn't prove it up
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  in this time period allowed right now and also in the
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  certain manner that the judge was requiring.
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  So that's a positive development.
• 6:42
  I'm hearing people are feeling good about what we're going to
• 6:45
  say about this preemption rolling.
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  Ultimately that's going to determine whether or not this
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  litigation explodes to 20,000 plus or we're going to see all
• 6:54
  the activity in state court. We should have a rolling
• 6:57
  sometime before Thanksgiving. It's.
• 6:59
  Interesting to see all these developments across these case
• 7:01
  types as well as the ones we haven't talked about today as we
• 7:04
  readjust our power rankings. If you haven't seen last week's
• 7:07
  episode, we went through the top ten mass torts for you to pay
• 7:10
  attention attention to, and we'll be redoing those power
• 7:12
  rankings on a regular basis as we head into Mass Torts Made
• 7:15
  Perfect next week. I'm sure there's going to be a
• 7:17
  flurry of activity and discussions and you will come
• 7:20
  out of that conference with a bunch of information for our
• 7:23
  audience. Again, make sure you meet with
• 7:25
  us at MTMP. We'll be around message us on
• 7:28
  LinkedIn, message us on Instagram, and we look forward
• 7:30
  to seeing everybody there. Have a fantastic trip out to
• 7:33
  Vegas and we will see you next week on Tort Talks.
• 7:36
  Thanks, Joe.