Welcome to the Votes in 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 industrials and healthcare litigation. Today's podcast will focus on mass towort litigation presently winding its way through the courts. I'm delighted to be joined today by Joseph Fantini,
a Rozen injury lawyers. He has been managing attorney for Rosen's mass tourt department, and just as a disclaimer, mister Fantini is an attorney representing plaintiffs in some of the cases we will be discussing today. Joe, would you please thank you for being here. Would you please tell us a little bit about your background and what you do at Rosen.
Good morning, Thanks very much for having me on here. I'm excited to discuss all of the things here mass tort. So, as you mentioned, I'm the managing partner at Rosen Injury Lawyers. We're a firm that specializes in mass torts, so our office here only handles mass torts and we're currently involved in a number of different ones, including somewhere discussing today.
But by the way background, I attended law school at Wider University in Delaware, and during that time I had the chance to clerk for the Honorable Judge knew in Philadelphia Court of Common Please. So Philadelphia Court of Common Please is one of the few state courts in the country that handles mass torts. So during that time, when Judge Knuw was overseeing the complex Litigation section, I had
my first exposure to mass twarts. So I got the opportunity to interact with plain if and defense counsel and see how mass tourt really worked. After I graduated from law school, I work for an international insurance defense firm, Wilson Elser, where I focused my practice on product liability cases, but I had the opportunity to defend some companies in mass court cases pending in Philadelphia and also in federal court.
After about three years defending companies, I switched sides and went over to the plane f side and joined a large predominant Philadelphia based firm called Antipol Voice over at Anapol. I worked there for approximately six years and really learned ins and outs of mass torts and worked on a number of docket from exception to settlement. I had a great opportunity there to work hand in hand with leadership
and learned really how mass tourt worked. In twenty eighteen, I joined the Rose and Law Firm and launched the mass tourt practice Rose and Law Firm as a large securities class action, but we decided to open a second actice that bothn solely on mass towards. So over the last six years or so, I've been able to grow the practice and the firm to what it is here today.
Great, thank you, as we're really lucky to have you today, because you don't always you don't always get attorney whose practiced on both sides of the aisle that it sounds like you have. So you know, we know that mass towards can pose series risks of companies in general. When you're analyzing whether to take a case as a as a plane's attorney, what would you make you decide to take on certain cases and what would persuade you to avoid certain cases.
Yeah, that's a really good question, and there's maybe ten to twelve factors we look at in each different mask toward. Before we get involved, we want to make sure that it's a litigation that we're passionate about because we're going to be in there for a long fight and we're going to invest a significant amount of our resources. We also want to make sure it's a case that's going to have a big impact and that we're going to be able.
To help as many people as possible.
And we want to be able to bring about change, and the way you do that is to get involved in some of these mass towards. So when we start investigating and looking into the mass toward, the most important factor for us is science. We want to know what studies are out there, what studies are out there that support our position, and then also ones that go against our position. We really want to look at how many
studies there are. And then once we get a handle on that, what our firm typically does is will retain our own expert that specializes in that area. So it could be an on ecologist, it could be an epidemiologist, whatever type of experts needed for us to really get a good feel about the strengths and weaknesses of the case up front before we start acquiring things. That's what we do next. After we get the good understanding of the science, we look at the total potential number of
individuals impacted. So we're looking at here at the numerosity of the potential number of plans that come forward. My experience that showed me somewhere between eight to ten percent of injured claimants come forward, So we want to make sure that there's enough planeus out there for us to really make an impact. Another factor that we look at and is really important is the viability of the defendant.
We want to know whether or not this defendant has the ability to satisfy a large judgment or engage in a settlement because miss toads typically resolve for hundreds of millions of dollars or even billions of dollars. So those three factors are usually the most important ones that we're looking at when we make a decision whether or not to get involved in a mass or it.
Ok.
Hey, thanks, So when you're looking at numerosity, I understand that there's like an eight or ten percent response rate. Is the eight to ten percent percent response rate is that people who will you know, call you after they find out about this issue, or are those people who are actually will actually decide to sue.
Yeah, so eight to ten percent would be the percentage of the injured individuals that come forward. So I've seen some other studies that go up to twenty percent, But say there were one hundred people injured by this product. Typically they may not be aware of the association between this medication or this medical device or this consumer product.
So it's that advertisement that makes them aware. Because it's different from a situation and a traditional personal injury case where you get in a car accident and you break your back. You know that's from the car accident. So here we have to do a lot of education and let the plaintiffs know, you know, you aren't the only
person that is until there are other people. So we usually find that for every hundred people that were injured by this product, about ten percent of them come forward and want to assert a claim.
Interesting. Interesting, are there cases that are riskier than others? And what would you describe as a risky case to take on?
Yeah, some of something that would make a case riskier would be, you know, if the science is unsettled. So when we have maybe an even number of articles on each side saying something in favor of the player's position and something in favor of the defendant's position that can make it riskier. Also, if it's kind of a new problem, a new issue that's coming to the forefront, and there isn't a lot of science out there, if there haven't been a lot of studies, that makes it risky and that can.
Give us pause before we get involved.
You know, another thing that we look at a lot and really factors inter our decision is the ability of the defendants to pay, because a lot of these cases could potentially go into the bankruptcy, which could add years on to the length of the litigation, but then it could also result in the plane of getting a reduced mount So before we get involved, we really spend a lot of time focusing on those because without the science, we can't get over and past Daubert and everything.
Would be for a loss.
So those are the two most important factors i'd say that we look at before we get involved.
Got it.
So I understand you're involved in a number of mass works. I'd love to ask you some questions about specific case that's starting with Van Tak If any of the listeners don't know lawsuits were filed after a lab reported results finding that in an ingredient in xantach called niche din degrades into a non percentagen under certain storage point conditions or an alliged carcinogen under certain storage conditions. Cases were
filed in federal and state court. There were at one point, I think about one hundred and fifty thousand queens on the Federal Registry. The Federal Court dismissed the cases in pour Q after the judge found experts couldn't pass the downward standard, which assesses the reliability of experts. I wanted to know, Joe, if you could explain the judge's ruling and her stated reasoning as to why she barred the experts.
Yeah.
So, as you mentioned, this was a very large mass towart and there were one hundred and fifty thousand cases on the registry. And basically what the registry was was a mechanism for us to put cases, to toll them and exchange information with the defendants before officially filing them. So what happened was in the spring of twenty twenty, the FDA requested that all manufacturers voluntarily recalled their products
and sees further sales. All of them can applied with that and then almost instantaneously lawsuits started getting filed and then an MDL got formed before Judge Robinson Rosenberg of the Southern District of Florida, and basically, the plaintiffs we had relied heavily upon information from a private company was called Balashoor, and basically Balashor had theorized.
That the Danda dean.
Had the potential to degrade into carcagen known as NDMA, and through her analysis, Judge Rosenberg found that the testing that Balashor did to reach its conclusion wasn't proper. She found that the temperature that it was raised to that Balachra raised to was way above the temperature and the human and then also questioned Balashor's testing the reneedda den reaction to salt, which again she found was the salt content was way higher than what was found in the human.
So those kind of caused some hurdles for us, and then Judge Rosenberg faulted the plaintiffs were relying upon the Balashore laboratory results. And then also another study that came out from Stanford around that same time, but after the issues with the Valshore laboratory studies and potentially some issues
with their equipment that they used. The Stanford study ended up being retracted by the authors as well, so throughout her analysis, Judge Rosenberg noted that only the scientists in this litigation, they are the only people that have come
forward and concluded that renidadin caused is cancer. And even though the FDA have withdrawn it from the market, which is a very unusual step, that alone isn't going to be enough for us to get over the hurdle and get the experts admit it and past Auburn and Judge Rosenberg found that all the experts that were put forward by plainiffs utilized unreliable methodologies and there was a lack of documentations on how the experiments were conducted, a lack
of statistical significance, a lack of internal consistency, objective and science based standards for the evaluation of the data. Because what ended up happening was the plaintiffs relied a lot upon their own epidemiologists who conducted studies and then made some opinions, and the judge found that that type of methodology isn't the type that was consistent within the science antipic community. And therefore ended up excluding all of the plaintiff experts. It was a very well written and well
reasoned three hundred page Dalbird opinion. And because all of the experts got excluded, basically summary judgment ended up getting granted in favor of the defendants. So all of the cases that ended up staying in the MDL, and so those were cases where there was a diversity between a planeiff and the defendant, they all ended up getting kicked out and a judgment got entered in favor of the defendants for all of those cases, which ended up being about forty or fifty.
Thousand of them.
Wow, okay, So what do you think the chances are reversal on appeal? I mean, I mean I should preface that that it's going it's going to be appealed, and I think I notice of appeals have been filed, So and what do you think the chances are of reversing that? Really?
Yeah, that's correct.
The notice appeal has been filed for the eleventh Circuit, and usually in Eleventh Circuit the time from the notice of appealed to decision is about a year. So around this time next year, we'll have a better idea but overall, the success rate in state and federal courts is anywhere
between seven and twenty percent. And the Eleventh Circuit in particular, which was established in nineteen eighty one and has jurisdiction over federal courts in the southeastern states of Alabama, Georgia, and Florida, where we are usually something like this, has an average appeal success rate of somewhere seven percent. So, although I think there's some good arguments being made, again, I'm on the plane of side and represent these clients.
If we're just looking at the statistics of it, we have about a seven percent chance of success on this appeal.
Got it? So I understand they're about eighty thousand state cases. The vast majority of them are in Delaware State Court, some are in California, and they're smattering in other jurisdictions as well. What do you think the impact of that federal court decision is on a court's handling the state cases.
Yeah, so the largest stocket is Delaware right now. There's a little over seventy thousand cases filed and pending there. We just recently served our expert reports and the experts depositions for the plaintiff and defense experts are going to be starting here in October twenty twenty three. We're looking to have an argument on the experts in the beginning of twenty twenty four, and I would expect the decision sometime in the first quarter twenty twenty four.
What is going on in Delaware is we're no longer only.
Accepting the top five designated canters that were identified by leadership in the MDL, So we're actually pursuing a larger body of cancers and we're looking at ten different cancers. And so obviously the Judge Rosenberg's opinion from them DL was not in favor of plaintiffs, and so what we did is we tried to learn from that decision. We identified the different areas where Judge Rosenberg's fault at the plaintiffs and our plaintiffs experts, and tried to address that
with new experts that we've retained. And subsequent to the MDL being formed and the expert ruling there, which was about a year ago, there have been additional studies that have come down, so we think that we were going to be successful getting some of these experts passed the
expert ruling. Here in the beginning of twenty twenty four, and how we're going to do it is kind of learned by maybe some of the critiques Judge Rosenberg had for us, and then also rely upon different experts who are certainly qualified and focusing more on their methodology to make sure that the Delaware judge doesn't have an issue with that.
Got it. So in the in the multi district litigation that was in Florida that was before the federal court, they only pursued five cancers, is that correct?
That's correct? They were only five in the NDL?
Got it? And then how many how many cases were in Delaware? You said, I didn't quite hear that.
Yeah, there's a little over seventy thousand cases currently.
Pending, got it. And then you did say that some of the experts are all the experts different that you're you'd be that will be presented to the Delaware judge or are just some of them?
I believe they're all new experts.
I know for certain at least ninety ninety percent are maybe some on regulatory crossover.
By we do have a whole new docket of experts there, got it.
And so that brings me to my next question. In a March twenty third ruling by a California judge presiding over one of the state cases allowed a Xantech bladder cancer case to proceed to trial. That case eventually settled. Why do you think the California judge diverged from the federal court ruling And what read through, if any, does this have in the Delaware cases.
Yeah, so, like you mentioned, that was the first case to go forward in California, where that's the second largest state court docket. There's several thousand cases there, I believe about three thousand, and this specific case was a bladder cancer case. And so Judge Grillo, who was overseeing it there, noted that the MDL order was only an unpublished decision by a federal trial court and it's not controlling on
matters of state court law. So even though the California State Court and the federal court states are analogous in the standards they apply to the expert, the MDL would or wasn't dispositive. So Judge Grilla noted that the planetifs had come forward with a whole new docket of experts as well, and those were to be considered in California.
And so what we ended up the attorneys ended up doing there in California is there were nine new experts that came forward and ultimately the majority of them got through one and then there were two or three experts that a portion of their testimony got excluded. But we had a pharmacologist, a bio analytic chemists, we had uh an on, a cologist, we had a chemist, we had two medical on a coologists on specific causation and regulatory So we were happy to see that Judge Grillo, even
though we had the unfortunate MDL ruling. Judge Grilla looked at these experts individually, evaluated them, evaluated the methodology, which again we think strong, and we're using those similar type of tactics in Delaware. So based upon this new decision in California, the more recent one from March of twenty twenty three, we feel and a little bit better and optimistic about some of the experts getting through in Delaware.
Interesting, so I'm going to shift gears a little bit, shifts from Zantac to roundup litigation. But we have background. Another company facing thousands of productal liability claims is Monsanto. With respect to it, we'd killer roundup mon Santo faced over one hundred thousand lawsuits leging and twee killer causes,
non Hochkins and FOMA. It entered into agreements to resolve about one hundred thousand cases for around eleven billion dollars, but it's estimated that there are still somewhere between forty to fifty thousand cases left. Joe, why do you think these case the forty to fifty thousand, Why do you think these cases have not settled yet?
That's a great question.
Then what happened when the Roundup litigation here is the defendants have been unable to get finality on the cases that are out there. And so usually when the defendants are in a mass toward and able to settle a large group of cases, they do so because they no longer face exposure going forward. So we're talking about Zantac earlier because the product was withdrawn from the market. That's going to be the trigger date of the statute of limitations beginning to run similar like you see going on
right now in Campa June. That date that the Act got put in place in August of twenty twenty two, that starts a two year window. Whereas in Roundup we still today have plaintiffs coming forward that were just recently diagnosed.
And because there's a latency period of a number of years, even though the defendants settled these one hundred thousand cases two years or so, there's somebody that could have been using roundup in between that time period and just get diagnosed today, to get diagnosed tomorrow, or end up getting diagnosed in two or three years. So because the product is still on the market, they're facing challenges of bringing
this lawsuit to a complete close. So what they did is they no longer sell the traditional roundup that me and you know to every day consumers. So that was a tactic that they began to implement to hopefully bring the litigation to an end from their perspective.
Got it. So, how do you think, given that issue, how do you see this litigation playing out over the next year or so.
There were a lot of firms that did settle their dockets and were included in that one hundred thousand, But like you said, there's still forty thousand plus cases still out there, a lot of lawsuits that are pending. So how I see it playing out is there's going to be a number of trials there's going to be trials
going on in Missouri, where the defendant's headquarters. There's also upcoming Bellweather trials starting here in October of twenty twenty three in Philadelphia, with the very aggressive trial schedule through the first quarter, so I anticipate over the next six months or so, we'll have maybe between half a dozen to ten jewelry verdicts, and then that will really let
us know what the value of these cases are. And then recently there was a new general counsel that joined in this summer, so I think he's getting a feel for the litigation and what to expect going forward. But I envisioned that a lot of jewelry verdicts are going to come out in the coming months, and then based upon that, we'll have an idea of what the cases they're worth. And then I would imagine by the end of twenty twenty four most of these cases are in some sort of settlement posture.
Got it interesting. Another company facing a number of personal initry cases is Phillips. The litigation against Phillips is related to we called C PAP and B PAP machines used for sleep APNA, and there are allegations that the phone using the machine degrees and could cause injury, including cancer. One transcript from July twenty twenty two said that about
sixty thousand people had entered into agreements. Do you think a settlement in this case would be easier to achieve than say, in Gleco litigation, And if so, why.
I think a settlement's definitely going to be a lot easier. And the reason is because of finality. Similar to what happened with Zantec when there was a recall, Phillips here recalled the product, so that started the trigger for the statute limitations, and everybody who used it was contact that they're aware of these potential problems. So by starting this tolling agreement, my firm represents lots of people in this case.
But basically you enter into the tolling agreement and you exchange information with the defendants at this junction where you provide them information about what device did they use, what time period, what are their injuries? So the defendants here are able to get their arms around how many total plaintiffs are there, what's the total exposure going to be to be able to come up with some sort of resolution.
I envisioned this case will resolve in a global settlement where we're still fighting and going over and there needs to be Delbert rulings on which cases and which cancers end up being compensable, but that's to be played out. I do anticipate that this case will get resolved. Here they were called the product, there's a lot of seriously injured people. They've indicated they do want to ultimately resolve
these cases. So I anticipate a global settlement maybe before the end of twenty twenty four or in the early part of twenty twenty five.
Interesting another litigation that's going on, a multi district litigation and a really relatively early Stege penning in Ceneral Court in the Southern District of New York is related to a set of minifeene Thailand all an ingredient in title all, and the claim is that ingredient, if taken during pregnancy, causes autism. Gabert motions are being breathed with a hearing set for December. Can Joe, can you discuss generally what's happened so far in a litigation?
Right?
So, this is an MDL that was only recently formed and basically it was about a year ago that it was moved to the Southern District of New York before Judge cod And so what's happened in this litigation. Initially when the MDL was form about a year ago, there was sixty six cases that got transferred, and then slowly over the last year, the cases have trickled in, but you haven't seen an explosion of the docket that we
typically see. And right now, as of maybe last week, there was only two hundred and sixty five cases, so two hundred cases added in a year. But what's happening is firmed Like my own firm, we're investigating the cases and we're really looking at the science and trying to get a better feel about whether or not these autism injury cases are going to be able to go forward, whether or not the ADHD cases are going to be
able to go forward. So this is kind of a newer litigation, but the judge has been really aggressive and pushing it forward to a Daubert decision. Originally indicated there'd be a decision by the end of the year. I'm not sure if that's still going to hold, but we should have a decision by the first quarter or twenty twenty four and in the meantime we've been able to conduct discovery. We've gotten, you know, millions of pages, We've conducted a number of depositions, so we're doing all the
background work needed. But this case is really all going to hinge on and depend on the outcome of the Daubert rulings, which we expect in anywhere from three to six.
Months at it.
So recently the court asked for the FDA's opinion as to the adequacy of the current warning over the counter set of minifum products. The FDA declined to issue a statement recently. What do you think the impact is, if any of that declination.
That had a big impact on the litigation, because had the FDA come in and offered an opinion, it could have ended the lawsuit. Because what happened was Judge Cott asked the FDA to review the proposed labels and wanted the FDA to appine on should the planiffs proposed warning be added to the labels and does the science warrants weren't adding such a warning to the labels. So had the FDA come out and said they don't believe that Plainiffs proposed warning needed to be added to the label
and there's no sign supporting it. That could have ended the litigation, right, We would have still gone forward with dalbirds, but it would have been a definitely huge burden for us to overcome.
So by the FDA declining, I think.
It still leaves it open to plane of thing successful here and it's all just going to come on and come down to the success of the Albert motions.
So when you said the proposed warning this by way background, the court asked plane us to provide an example of a warning that they think would be adequate. Is that typical?
That that isn't typical? That that's something that's very uncommon. And the adequacy of the warnings and the specific language, that's something we see way later in the litigation when we get to our experts. So having the FDA come in and offer their opinion, that's not something we usually see in any sort of mass toward it.
Is it typical for a court presiding over this type of case to request the opinion of the FDA or whatever regulatory body has authority.
Again, that's not a typical occurrence. That's something we rarely have ever see. So we were a little bit surprised by that. But going forward, we don't expect to see that in many mass towards going forward.
Here it.
Do you think there's any significance to these requests by the court.
I understand why Judge Cott did it. The judge wanted to really focus in what are the real issues in this case. So this is, you know, a failure to warn and a defective design case. So by honing in and making the plane effs up front identify what warning we thought should be at it, it lets the experts really focus in on this specific area and also let us really focus in during regular discovery.
Got it? And so shifting to another litigation, we saw three M air plug litigation. Three M was sued by you know, an over two hundred thousand veterans who said that.
The airplust cost.
The earpost coust hearing loss or Sunitas. Settlement of six billion dollars was announced in late August. You've commented that you don't think Plane of Slayers should take on new cases in this litigation. Can you explain why that is?
Yeah, so my firm's not accepting new cases.
I don't think I wouldn't recommend for any other firm to do that as well. But basically what happened was this litigation all got started years ago, back in twenty and fifteen or sixteen. There was a whistle blower plane that first brought our attention to the potential litigation, and then we've been able to investigate, and then this MDL was formed, and then as part of the MDL, it
was on the forefront of the news. A lot of veterans were aware the VA was giving information to them, other people that they had worked with became aware, and then there was a large number of Bellweather trials. I believe there were sixteen in total conducted, and the results were all over the news. So in this litigation, there's a strong argument to be made by the defendants that the statue of limitation ran even when you're relying upon the discovery rule when you knew or should have known,
your injuries were related. Because this litigation was so prevalent, it would be hard for any plane iff to come forward and say, hey, I just found out about this,
now I want to pursue acclaiming. So the defendants in this case three m they did a good job about the finality of the litigation, and that's why we're able to get this six billion dollar settlement because they had an understanding of all the plaintiffs that were out there, how many were going to come forward, and that ultimately led to this settlement here.
Interesting. Interesting, Well, thank you so much for joining us to JO and sharing your insights. We'll certainly be watching these litigations in the future. It will be interesting to see what happens in these cases.
Thanks for having me. It was great talking with you, of course. Thank you