Welcome to the Votes and Verdicts podcast hosted by Bloomberg Intelligence, the investment research arm of Bloomberg LP. In this podcast series, we talk about the intersection of business policy and law. My name is Holly from I'm an analyst with Bloomberg Intelligence covering consumer, industrial and healthcare litigation. Today's podcast will focus on mass fort litigation presently winding its way through the courts. I'm delighted to be joined today by Joseph
Fantini of Rosen Injury Lawyers. He is a managing attorney for Rosen's mass twort department. Mister Fantini is an attorney representing plaintiffs in some of the cases we will be discussing today. Joe, would you please tell us a little bit about your background and what you do at Rosen.
Hi, Holly, thanks so much for having me on here today. I'm really excited to talk to you about the mass towart landscape. It's something I'm really passionate about. But by way of background, I've been an attorney here for about fifteen years and the majority of my time have been involved with mass tourts. I initially started my career clerking for judge Arnold Knew in Philadelphia Cordacommon Please in the
mass turt department. Then I moved over to Wilson Elser, which is a global insurance defense firm and defended clients and mass twart litigation before switching over to a prominent Philadelphia firm, annipol Weiss, representing plaintiffs and mass towart and
class actions. For the last six plus years, I've been over at Rosen Injury Lawyers, where I had the mass tart department, and we represent individuals that have been hurt through no fault of their own by defective products and some of the biggest mass twarts out there.
So your perfect person to talk to you today because we're going to be talked and that some of the master work cases winding their way through the court system.
And one of those cases you've been.
Involved with is litigation against Bear's Monsanto unit over we Killer round Up. The claims are that we Killer Roundup causes cancer. As listeners may remember, there there was a large settlement for about eleven billion dollars of around one hundred thousand cases in twenty twenty, but there are still about fifty seven thousand claims that have not been settled. So these cases continued to go to trial, and there
were a number of notable Planet's verdicts. We saw one award for a one point five billion out of Missouri and one for two point twenty five billion out of the Philadelphia. Both awards were subsequently reduced. Of course, I should say there were a number of defence wines as well, but generally, when the jury finds in favor of the planet,
the awards are many millions of dollars. So recently, Buyer's Monsanto had one notable victory at the appellate level, and that was at the Third Circuit Court of Appeals and Appellet court ruled that a planet is failure to Warren claims were preempted. Two other appellate courts, the Night and the eleven Circus, found the opposite that the planet's claims
were not preempted. Joe, I just wanted to know if you could explain what the rulings mean and how the Third Circuit Court's rulings could impact the course of this litigation and potential settlement.
Yeah, so this was a really important decision that just came down here. Like you mentioned, this has been a
long fought litigation. We had the first verdict back in twenty eighteen, and then subsequent to that in May of twenty twenty one, Bare, after this settlement of the eleven billion dollars, announced its five point plan to manage the round Up litigation, and the main and first point that it had was to obtain a positive ruling from the US Supreme Court on fred federal preemption, which Bear believes
could significantly alter and end this round up litigation. So basically what happened in this ruling was whether or not state law claims based on failure to warm are reempted by federal law. And Bear was alleging, since the EPA approved the roundup label without any risks associated with cancer, whether or not they needed to warn consumers later about
these cancer risks. And the preemption argument is a regular defense that we see typically in mass tourch We've seen it throughout the prescription medication cases where the labeling was approved by the FDA and then thereafter the manufacturers unable to make any changes and that effectively eliminates these failure to warrant claims. So now with the Third Circuit ruling, the issue is whether or not similar to the FDA. The EPA has taken out these failure to warren state claims.
So basically, from the planner's perspective, Bear spent eight plus years and eleven billion dollars hoping to get split of the circuits, and as you mentioned, their first two attempts were unsuccessful. In the ninth and eleventh Circuit ruled in Plaine's failure that the claims weren't preempted. But they scored this victory with the Third Circuit when it found that the plaintiff's failure to warn claims were preempted. So as a result of that, we saw Bear's stock increase by
ten percent. And this split in authority allows Bear now to petition to the Supreme Court to get review on clarification on whether or not all of these claims are preempted. As a reference point, typically the Supreme Court receives between seven to eight thousand petitions for serve each year and only about one hundred percent or review. So from our perspective, we believe that this Supreme that this Third Circuit ruling
eliminates the possibility of a global settlement. In twenty twenty four, we anticipate bear trying to get this up to the Supreme Court, and we don't foresee a larger settlement until sometime next year, after this issue is resolved.
We should say that there was that after the Ninth Circuit appeal, Buyer did petition the US Supreme Court to take the case. The matter was conferenced. I think it was conferenced twice if I recall correctly, and then ultimately the Supreme Court rejected the petition. But this is different landscape now because there is this split of authority that you mentioned and that you explained another case. I know
that you've been heavily involved in is Zantac litigation. By way of background, Consumers who ingested Zantac sued Zantac manufacturers, Glass of Smith, Client, Bowringer, Pfizer, and other manufacturers, claiming an ingredient Zantac degrades into our carcinogen under certain storage conditions. This has been an interesting case, sort of a roller coaster of a case because we've seen very important, very divergent rulings out.
Of federal and state court.
And one of those rulings occurred in four Q twenty twenty two, and that was by the Federal trial judge handling pre trial proceedings, and so what happened there where there were tens of thousands of cases or claims filed in federal court.
The cases were coordinated before a court in.
Florida, the Federal Court in Florida, and that court in four Q twenty twenty two decided that planeff experts were unreliable and dismissed them, And because plaintiffs couldn't prove their claims without an expert, the judge created summary judgment to defendants. But in May this year, a court in Delaware, where over seventy thousand cases were pending, found that plaintiffs experts
were admissible. So, Joe, could you please explain what the courts made ruling allowing Planet off experts to testify means and why that is significant.
Yeah, as you mentioned, this was a huge ruling that we were waiting on and trying to get for many years. So basically, as you mentioned, the MDL court excluded all plane effect experts, effectively ended the federal litigation. A number of cases over seventy thousand, are pending in Delaware state court and in May this year, the judge denied the defendant's motions to exclude plainiffs experts. So what that means is that the cases were able to proceed to trial.
So the Delaware Court noted that in the pending California state court actions in Bobbing Xantec, where there's a few thousand cases, the judicial Council coordinated proceeding allowed the cases to proceed to general causation phase. The judge also noted in Delaware that we had different plaintiffs, we had different experts. The experts in Delaware considered ten cancers versus five in the MDL, and there was also different leadership in the
Delaware state action versus the MDL. So the plainiffs have returned retained ten experts to offer general causation opinions on these ten different cancers. And in essence, the Delaware Court noted that the MDL judge's decision it wasn't binding, it was only discretionary in nature. And then after the court did a very thorough analysis of over one hundred page opinion, it found that the opinions offered by plaintiffs experts were reliable and they passed the mustard and were able to
go forward and be presented to the jury. So This allowed the litigation continued to the next phase, and right now we're working on the Bellweather case workup in the Delaware state action.
It was a really important decision, but in July, the defendant Manufacturers asked the Delaware Supreme Court to immediately review that decision. The Supreme Court granted the request August twenty seventh. Can you tell us why that is or is not significant?
Yeah, that's a very significant development. So initially, on July first, twenty twenty, the Superior Court of Delaware denied the defendant's application for certification for an interlocatory appeal, finding that the expert opinion does not determine a substantial issue of material
importance that merits appellate review before the final judgment. The defendants weren't satisfied with that, and they went up to the Delaware Supreme Court, and as you mentioned, on August twenty seventh, the Supreme Court of Delaware granted the defendant's
certification for interlocatory appeal. So now the defendants agreed to continue with discovery and the underlying cases while this appeal is ongoing, and we have a briefing schedule where the defendant's initial brief is due October first, planning us out thirty days to spawn. Defendants have fifteen days thereafter to file their appeal, and then we're expecting an oral argument
in the first quarter of twenty twenty five. We should have a ruling and anywhere from eight to twelve months from now, and that will determine whether or not plainiffs experts are able to offer their testimony at trial and the cases can proceed. So it's a huge development and everybody's going to be watching this decision, which is going to be one of the biggest mass tourt decisions in twenty twenty five and beyond.
Yeah, that should be a really important decision in Delaware. And in light of the courts the Delaware Court's taking the case, we're going to review that to how do you see this case playing out over the next year.
Yeah, So in Delaware State Court, we're going to continue to work up the cases for Bellweather trial. The plainiffs have certain requirements to offer the proof of usage by October thirty first, twenty twenty four, and proof of injury by the end of January twenty twenty five. The Bellweather trials are looking to have a trial in either Q
two or Q three in twenty twenty five. Meanwhile, while that's ongoing in Delaware, we have other actions going on in Illinois State Court where there's been a couple of cases go to verdict. We're expecting at least two more trials here before the end of twenty twenty five. And then in California State Court action. What's been happening there is the defendants have settled almost a dozen cases before they got to trial, So we have those two state
court actions that are active. And then in Philadelphia, there was also a recent development where the plantiffs filed emotion seeking to recuse Judge Roberts, alleging the appearance of impropriety due to his wife working at Reed Smith, which is a prominent defense firm and also represented as Antik defendant
outside of Philadelphia. The motion for recusal was denied. Planeffs are seeking appeal of that decision, and that basically bumps back the trials in Philadelphia that we're supposed to begin in February twenty twenty five until the end of twenty twenty five at the earliest. So the litigations moving forward in Delaware State Court, Illinois, and California We're going to keep working up the cases while we wait for this very important decision from the Delaware Supreme Court.
And Joe, you mentioned that planers are seeking to accuse Judge Roberts in Philadelphia. Is he just a child judge or what is this relationship to the Santa cases?
Right? So Judge Roberts actually is in charge of the complex Litigation Department in Philadelphia Court to common please, So in ensence, he's the judge that is in charge of the whole mass Tourt department. So although we can serve as a trial judge in certain cases, typically in the Philadelphia Mass Tourt Department, he would make decisions that impact all the cases for a certain case type and then the case would be assigned to a different trial drudge
for a specific trial. So he has a very prominent role here in Philadelphia.
So with that, I'm going to shift gears.
There's another mass sort making its way through the courts and various federal court and state court, and that relates to something called neck formula. Maker's Abbott and recommenct Beckinser's me Johnson unit face claims that cow's milk based formula for pre term infants calls caused something, and I hope I don't watch the pronunciation. Something called necrotizing entero colitis
or neck, which can lead to lifelong complications. It's the disease of the intestines that infants get and the claim is that it caused this disease in pre term infants. So about a thousand lawsuits have been filed. About half of them we estimator in state court. The remainder are in federal court. There's a consolidated proceeding. And we saw two notable verdicts in state court, one out of Illinois for sixty million and one out of Missouri for five
hundred million. I was wondering if you could talk about the verdics and also the status of these lawsuits.
Right, So, as you mentioned, we had these two really large verdicts come out. The first was in March of twenty twenty four. It was a Saint Clair, Chicago jewelry verdick for sixty million. After that we saw needs parent company it lost seven billion dollars in market value. And then later in the summer here in July twenty twenty four, a Missouri state court awarded four hundred and ninety five million to a family of an infant who developed necked.
That verdict consisted of ninety five million in compensatory damages and four hundred million impunitied damage. So, as you mentioned, we have this litigation going on on multiple fronts. So as we typically see in mass tourge, we have in MDL, which here is centralized in the Northern District of Illinois. It was formed in April twenty twenty two. In the MDL we have about five hundred and sixty a little under six hundred cases. Then we also have state court
proceedings going on in Illinois, Missouri, and Philadelphia. In Philadelphia, it's a little bit unique. We have claims going on involving the hospitals, which we typically aren't seeing being sued in the other state court proceedings. So in the MDL right now, the court just recently identified the four Bellweather trials. We're expecting those cases to kick off the trials in
Q two of twenty twenty five. We have additional state courts that trials are set again in twenty twenty five, and the numbers you had right there was about a thousand lawsuits filed. Just something to note some of the lawsuits that were filed in state courts allowed for multi plainiff complaints, So our numbers estimate that there could be as much as three thousand plaintiffs that were injured so far. So most of the action sixty seventy percent is in
state court. So we're looking forward to getting more cases in front of a jewelry here. That's likely not going to happen until the beginning of twenty twenty five.
That's interesting, Like we had seen like a six billion market cap loss since losing a case in marchin as of July for a record, So you mentioned you think you had said you mentioned that these cases are hard to come by for plaintiffs attorneys.
Can you explain why that is?
Yeah, So in mass towards, we've seen some very large mass tours over the last couple of years. Three m ear plug over two hundred and fifty thousand plaintiffs and round up one hundred thousand cases have been settled in Zantac. More than one hundred thousand plaintiffs came forward. In Hernia Mesh tens of thousands, close to seventy eighty thousand plaintiffs came forward. So with these cases, the anyc cases are
unique because the numerosity just isn't there. It's estimated on average thirty five hundred babies are diagnosed each year with ANYC, So even if you go back twenty years, you're looking at a total population of maybe seventy eighty thousand potential babies diagnosed with any C. And unfortunately, what we're seeing is there's a little bit of shame or concern on mothers coming forward because they blame themselves unfortunately for their diagnosis. So it's not as large of a mass toward as
we've seen, and those numbers are reflected. But what we talked about the MDL with five hundred and fifty cases here, you know, we might see that go up to twelve or fifteen hundred, and then at the end of the day we're going to have a few thousand in state courts. I anticipate that we'll only end up seeing about ten thousand total cases, so it won't be a very large masterwort like some of the biggest ones, but it will get over that threshold, so it's a very important case.
Obviously, this is sort of like on the low end of diagnoses per year, so it's not like a non Hodgmin from film case like where the alleged injury related to roundup where I think it's like eighty thousand or something like that, seventy or eighty thousand diagnoses per year. Here there's like thirty five hundred eighty diagnosed with neck per year. So it's going to be a lot the numbers are a number of cases going to be a
lot lower. And it's interesting what you said about the shame because of the plane of mothers coming forward, because you know, one of the things we've seen in some of these.
Trials is that you know, the mom's health is really scrutinized.
You know, whether the mom had create clampsia or whether the mom, you know, did the mom you know, consume anything that she she wasn't supposed to during prisis. So that's a that's a pretty interesting issue in federal cases, a hearing on Dealbert motions or schedule for next year.
Can you explain why the Dealbert hearings are important?
The Dalbard rulings and the Dalbert hearing are usually the most important part of any mass toward case. So Adalbert hearing is a court held meeting where the judge acts as a gatekeeper, and the hearing is based on the Dalbert's standard, and what the judge tries to do is it needs to evaluate the reliability and relevancy of the
expert testimony. So the judge is acting as a gatekeeper of the evidence and determining what can be permitted to reach the jury and what can't be So we know, and we've seen recently how important these decisions are because in the Zantac MDL, the judge, acting as a gatekeeper, found that the plaintiffs experts opinion were not reliable and they were excluded. In Delaware's ANTAK, the judge found that
the opinions were reliable and relevant and were admitted. So basically, the outcome of MBL usually depends upon the determination of the Dallbird hearings. So once we see a Dallbird hearing, and if the defendant's motion to exclude plainiffs experts granted, then they move for summary judgment and the cases are dismissed.
But if we are able to successfully win that Dallberd hearing, that applies a lot of pressure to the defendants either settlement negotiations really kick up, or were able to get the case in front of a jury where we really want to be. But if we don't have the expert opinion in these very scientific and complex cases, we can't go to a jury.
In light of that, how do you see these losses playing out over the next year or so?
Yeah, I think these lawsuits are going to pick up steam over the next couple of years. As we mentioned, the MDL is only relatively new, being formed in twenty twenty two, so the cases will kick off. We'll get more cases in front of a jury in twenty twenty five. I expect there to be some more pretty big verdicts coming out, and then I anticipate some sort of inventory or global settlement coming into place towards the end of twenty twenty five.
And now turning to another litigation against TFEST Chemicals or so called Forever Chemicals. By way of background personal injury plaintiffs, What are authorities and states to the companies Factures three M DuPont, Comores and others for ledged contamination caused by a triple F for firefighting FROME. The claims are that the chemicals contaminated drinking water which required remediation or injured those who drank the drinking water. States have also sued
saying that the PPS chemicals damaged natural resources. So we saw a number of settlements, one for ten billion by three AM and one by DuPont and Comores for one point two billion, and those were class action settlements with water authorities, but personal injury cases were not part of that class action deal. Those have not been resolved. Can you walk us through where those personal injury cases are?
Certainly so, this MDL is a little bit unique. So, as you mentioned, we have in the MDL before Judge Gurgle in the United States District Court for the District of South Carolina in MDL where there's water authorities and states along with individual planiffs who have the personal injury cases. So, after this md OUT got formed in late twenty and eighteen, the focus was really on those water contamination cases evolving
the water authorities. We saw some of the settlements like you mentioned in twenty twenty three, twenty twenty four, and then the attention really beginning in twenty twenty four, shifted to these personal injury cases. So right now where we're at is that there's six injuries that are currently being actively litigated and those are kidney cancer testicular cancer, ultra colitis,
thyroid disease, liver cancer, and liver disease. So basically, the typical plane if is someone who consumed water while living in an area known for p FoST contamination attributed to the use of firefighting foae. So the typical source of PFAS contaminations include firefighter training areas, military bases, airports, and
fires stations. So in the summer here in July twenty twenty four, the court selected eleven Bellweather cases and these cases are going to focus on four injuries, and in an attempt to streamline the process, the court stated that the certain cancers, the kidney antisticular cancers are going to involve individual plaintiffs located and exposed here in Pennsylvania, not far from where I'm at. And the thighrary disease and ultra colitis cases are going to involve plainiffs that were
exposed in Colorado. We have a case management conference on September thirteenth, twenty twenty four, and that's going to give us the roadmap here for this Bell Weather workup of these eleven remaining bell Weather cases.
So, Joe, when do you think we'll know more about the strength of these personal injury lawsuits.
Yeah, so really we got to go through wrap up the Plainiff bell Weather discovery, and then get into the expert discovery. We'll get the expert reports and then we'll have that all important Dalbert hearing. Likely towards the end of Q one or Q two, the judge will make a rolling I anticipate on individual specific injuries, so those six remaining injuries. After that we'll see which of these
claims are able to proceed to trial. So sometime probably in the summer of twenty twenty five, what have that nailed down?
Thank you so much Joe for joining us today and sharing are always and valuable insights. It's interesting to see what happens in these cases. Will definitely be following up with you probably in a few months from now, hopefully, so you take care and thanks so much again.
Um