Update on Tylenol Litigation: Initiation of Daubert Motions

Daniela P on September 25, 2023

Insightful Update on the Tylenol Litigation’s Daubert Hearing Proceedings  

The judicial examination concerning the admissibility of general causation expert testimony in the Tylenol litigation has formally begun. On September 19, 2023, Johnson & Johnson, along with co-defendants representing retail entities, submitted a trilogy of motions intent on precluding the testimonies of the plaintiff’s general causation experts. The defense has raised questions about the scientific reliability of claims that acetaminophen consumption during pregnancy: (1) increases the risk of autism spectrum disorders, (2) elevates the risk of Attention-Deficit/Hyperactivity Disorder (ADHD), and (3) is backed by biological plausibility. Conversely, the plaintiff’s legal team has presented a series of motions aiming to exclude all expert testimonies put forth by the defense regarding general causation.  

At this nascent stage of proceedings, it is challenging to predict the rulings on these motions. Opposition briefs and corresponding evidentiary materials will be filed by both parties on October 10, 2023. Subsequently, each will have an opportunity for rebuttal with reply briefs due on October 20th. A clearer understanding of the possible judicial directions will likely emerge only after the comprehensive briefing of each motion. 

Further insights into the methodology of the presiding Judge Cote may be ascertained from a public telephonic status conference scheduled for early October. During this session, Judge Cote will delineate the expectations and specifics of the Daubert hearings set to commence on December 4th. This discussion may involve directives on witness examination procedures, the sequencing of testimonies, and potential limitations on the duration of oral arguments. Additionally, substantive comments from Judge Cote on the current briefs may signal her areas of interest. 

It is also within the realm of possibility that Judge Cote will either request or mandate a set of questions for the counsel to address during the hearings in December, drawing parallels to the approach taken by Judge Rosenberg in the Zantac MDL Daubert proceedings of September 2022. Such an inquiry would likely underscore the issues Judge Cote deems pivotal in formulating her factual and legal conclusions. 

To date, there is no record of any Daubert ruling from Judge Cote in similar product liability or mass tort cases, nor has either party cited such precedent in their filings. It is anticipated that Judge Cote will render a considered verdict on the motions, with a determination expected by mid to late January 2024. 

Should the motions by the defendants be overruled, the litigation is expected to proceed to a subsequent phase, entailing: (1) the selection of bellwether plaintiffs and related discovery, (2) further Daubert motions and hearings focused on specific causation experts, and (3) the setting of bellwether trials, anticipated to be led by noted trial attorneys Mark Lanier and Mikal Watts, contingent upon the plaintiff’s causation experts prevailing against exclusion. 

We will continue to provide updates as further developments arise. 

  

Judicial Update 10.6.23: Judge Cote’s Status Conference on Daubert Hearing Procedures 

In a concise telephonic status conference lasting merely 11 minutes, Judge Cote conferred with counsel regarding the logistics for the forthcoming Daubert hearings scheduled for the week of December 4th. Judge Cote immediately remarked on the uncommon nature of live expert testimonies during such hearings, indicating her preference for engaging with these testimonies only if they clarify issues arising from their written reports, depositions, or referenced scientific studies, thereby assisting her understanding. 

Judge Cote assured that should she deem it necessary to solicit further explanations from specific experts during the proceedings, she will inform the parties accordingly. She emphasized efficiency in testimony, expressing her intention to conduct a thorough review of not only the briefs and reports but also the foundational studies referenced therein. 

Although Judge Cote refrained from imposing oral argument constraints during the call, she signaled her willingness to hear counsel’s arguments and indicated that more concrete plans for the hearing would be forthcoming. 

Upon querying the parties for their input on her preliminary views, the defendants’ counsel drew a parallel to a precedent where Judge Wolfson found live testimony beneficial after initial hesitation. Judge Cote responded by underscoring her current focus on the written briefs, indicating a readiness to request further expert testimony if necessary after the conclusion of the briefing process. 

With the defense’s proposal for comprehensive witness testimony and the plaintiff’s call for a more streamlined approach, Judge Cote’s stance could be interpreted as leaning towards the plaintiffs. However, a more accurate assessment of her position will likely be available after further communication post-October 20th. Insights may also be enhanced should Judge Cote decide to present the parties with specific questions or topics to be addressed during the December hearings. 

 

Legal Brief 10.20.23: Tylenol Case Progress 

Following the submission of the final briefs on October 20th concerning the parties 

’ Daubert motions, anticipation builds for further instructions from Judge Cote. Ahead of the December 4th Daubert hearing, there are several key considerations: the potential for Judge Cote to call upon specific expert witnesses, the allotment of time for each side’s oral arguments, the sequence of these arguments, and the possibility of receiving direct questions from the Judge. These forthcoming directives will offer significant insight into Judge Cote’s judicial approach and the trajectory of the hearings. 

Navigating the Complexities of Baby NEC Multidistrict Litigation

Daniela P on August 19, 2023

Navigating the Baby NEC Mass Tort Litigation Landscape 

  • Overview of the Baby NEC Multidistrict Litigation 
  • Judge Pallmeyer’s Pivotal Decisions in NEC MDL 
  • The Science Behind Baby NEC Claims 
  • Anticipating the Bellwether Trials in Baby NEC Litigation 
  • State Law Applications and Their Impact on NEC Cases 
  • Corporate Ethics and Its Influence in Baby NEC Litigation 
  • Procedural Milestones and Their Impact on the Litigation Timeline 
  • The Complexities of Document Management in Mass Tort Litigation 

The multidistrict litigation (MDL) encompassing claims related to baby necrotizing enterocolitis (NEC) is evolving with critical judicial activities that could establish important legal precedents for analogous litigations in the future. 

Key Developments in the NEC MDL Proceedings 

The MDL, which centralizes approximately 200 baby NEC claims, is advancing towards significant judicial milestones. The presiding judge, Honorable Judge Pallmeyer, has been instrumental in delineating the discovery and motions schedule, which is vital for dictating the pace of the ongoing litigation. 

Notably, the judicial proceedings such as the Science Day and the selection of bellwether trials are set to significantly shape the trajectory of the MDL. These selections will play a crucial role in informing settlement discussions and subsequent trial strategies. 

The application of disparate state laws to individual claims further underscores the complexity and heterogeneity inherent in these cases. Additionally, corporate behavior investigations into prominent companies like Abbott and Mead Johnson add an extra layer of intricacy and ethical considerations to the legal challenges presented. 

Current Status and Anticipated Progression 

As of mid-August 2023, the MDL’s progression reflects the invested interest of the parties involved in resolving these multifaceted disputes. Although the MDL is at an early stage, Judge Pallmeyer’s balanced approach to adopting a discovery and motions schedule from proposals by both plaintiffs and defendants, while leaving essential deadlines open, marks a significant step in the litigation process. 

The confidential Science Day held on May 3 provided a platform for discussing general causation issues, emphasizing the scientific underpinnings essential to the claims’ success. 

Further decisions on the procedural timelines are expected to emerge from the status conference scheduled for September 8, 2023. These rulings will likely affect the timing of bellwether trials, tentatively set for late 2024 or early 2025. 

The intricate analysis required by Judge Pallmeyer in her rulings reflects a nuanced approach to the legal standards and the individuality of claims under various state laws, highlighting the depth of the litigation. 

Implications of External Corporate Investigations 

While the FTC’s investigation into the defendant companies for potential collusion and misconduct is separate from the NEC litigation, the outcome could potentially sway juror opinions and influence the legal strategies of the parties involved. 

Outlook for Settlement and Trial Proceedings 

With the first bellwether trials not expected until at least late 2025, the MDL is indicative of a protracted legal engagement, with all parties bracing for an extended period of litigation. The extension of bellwether trial selections and the substantial volume of document production by the defendants point to the ongoing challenges in managing large-scale litigations such as this. 

Conclusion 

The baby NEC MDL exemplifies the intricate dynamics of mass torts, with the judiciary’s discretionary powers playing a critical role. Each procedural advancement brings the legal fraternity closer to discerning the full implications for all stakeholders. 

Paraquat Litigation Progresses Towards Daubert Hearing and Trial Set for October

Michael S on July 31, 2023

Paraquat Litigation Advances: Daubert Hearing and October Trial Insight

The litigation process involving the herbicide Paraquat advances as key procedural hearings are scheduled. Notably, the legal teams involved have concluded their detailed briefings on two significant motions—the Daubert motion and the motion for partial summary judgment. A Daubert hearing, a critical juncture in the proceedings, is slated to commence on August 21, 2023, where expert testimonies will be pivotal. 

Key Points: 

  •  Daubert Hearing and Trial Dates Set: A crucial Daubert hearing for the Paraquat litigation is scheduled to begin on August 21, 2023, with the outcome expected to significantly affect the first bellwether MDL trial due on October 16, 2023. Furthermore, a California state court trial has been rescheduled to January 8, 2024, with pre-trial hearings set for October 10, 2023.  
  • Expert Witness Testimonies: The court has ordered plaintiffs’ expert Dr. Martin Wells to testify and face both direct and cross-examination in the upcoming Daubert hearing, as per Judge Rosenstengl’s July 28th order, which also allows for post-hearing briefs by September 8th. 
  • Precedent Settlement: Syngenta and Chevron, in 2021, settled numerous cases in Illinois and 16 cases in California for $187.5 million, which might indicate the potential strength of the plaintiffs’ cases and could influence future litigation outcomes.  
  • Public Disclosure of Settlement: Details of the previous settlement were made public through Syngenta’s 2021 Annual Report, revealing a strategic move to settle high-profile cases, thereby limiting negative publicity and further large-scale litigations.  
  • Ongoing Litigation Volume: The litigation encompasses a significant number of cases, with 4,384 active cases in the MDL, 298 in California state courts, and additional actions in Pennsylvania, Illinois, Florida, Washington, and Delaware as of July 20, 2023. 

A court filing by the defense on June 9th, the only one not sealed, delineates a strategic stance suggesting that the scientific evidence at hand fails to substantiate the expert causation theories proposed by the plaintiffs. 

Presiding Judge Rosenstengl issued a mandate on July 28th requiring the plaintiffs’ expert witness, Dr. Martin Wells, to provide testimony and undergo examination by the legal representatives of both parties. Additionally, the order permits the submission of post-hearing briefs by both sides, to be filed by September 8th at the latest. 

The rulings on these motions will have a direct influence on the inaugural bellwether trial of the Multidistrict Litigation (MDL), which is on the court’s docket for October 16, 2023. 

The first state court trial in California, initially scheduled for September 6th, has been postponed to January 8, 2024, in Contra Costa County. Pre-trial hearings concerning Sargon motions—California’s equivalent to Daubert hearings—and motions for summary judgment are expected to proceed on October 10, 2023. Syngenta’s Annual Report also indicates a concurrent trial scheduled in a Florida state court for January 8, 2024. 

Notably, Syngenta and Chevron, in a strategic move during 2021, settled several Illinois state court cases, including 16 in California, for a total of $187.5 million. This decision, seemingly a preemptive measure, may have been influenced by the desire to limit the exposure of these cases to public scrutiny and to curtail further litigations led by Stephen Tillery, especially in high-profile jury trials in St. Clair County and across Illinois. Based on the disclosed settlement figures by Syngenta, the financial compensation to each plaintiff appears to be substantial, especially if the number of claimants was limited. 

This previous settlement bears significant relevance as plaintiffs advance towards the forthcoming trials in October and January. 

From Syngenta’s 2021 Annual Report: 

“Settlement: On June 1, 2021, Syngenta, along with a co-defendant, reached an agreement to settle with claimants represented by the leading counsel in the Hoffmann cases scheduled for trial in St. Clair County, Illinois, and in a majority of the cases pending in California state courts at that time. The settlement, which was contingent upon the dismissal of all active cases and a comprehensive release from the plaintiffs, involved a payment of $187.5 million by Syngenta. The company allocated its share to the Qualified Settlement Escrow Fund on July 21, 2021, which allows for third-party verification and apportionment amongst the claimants. The incurred settlement expenses are reflected within ‘Other general and administrative’ costs in the financial statements.” 

As of July 20, 2023, the MDL has 4,384 active cases pending. Additionally, there are 298 active cases in various California state courts, with 244 consolidated in a Judicial Council Coordination Proceeding (JCCP). Separate actions are also underway in multiple jurisdictions including Pennsylvania, Illinois, Florida, Washington, and Delaware.