Susan Barfield (00:05):
Hello everyone. Welcome to another episode of the Leverage Report. Really excited to be talking today with Tyler Schneider from the TorHoerman Law Firm, talking about the recent victory, the NEC verdict that came out the past few weeks. So Tyler, thanks so much for spending a little bit of time to connect with me today.
Tyler Schneider (00:24):
Thank you, Susan. I’m glad to be here.
Susan Barfield (00:26):
Yeah. Before we dive in and I start peppering with lots of questions, maybe if you would just give our audience and listeners a little background bio about yourself and about the firm and maybe why you went into law.
Tyler Schneider (00:37):
Sure. My name’s Tyler Schneider. I have been at Tor Law since 2012. The end of ‘/7 care, and she has changed her entire life,12 actually. I’ve actually worked with Tor in some setting when he was at another firm since 2006. I am now managing partner and we recently took the first Abbott case involving every formula to trial. I was part of that trial team. My partner Jake, was actually the main trial lawyer. Why I went into law, I always get asked this question, especially as I get older from younger people going in. The honest answer is a little bit of I didn’t know what I wanted to do and I was trying to figure it out. I thought I was going to be a doctor at one point, and I kind of fell into this bubble with a lot of the guys actually that I’m partners with now in 2006. And I really liked them and I really liked what they were doing. I just wanted to stay with that. It was an interesting time and honestly, the people you work with are almost as important as the work you do. It just kind of worked out well, and I’ve been here since I graduated law school.
Susan Barfield (01:36):
Well, that’s fun. That’s a great story. Tell us a little bit about the background on this case and what do you think resonated the most with the jury?
Tyler Schneider (01:46):
Yeah, so this case, I think that, trying to say this in the best way, I mean, we were blessed with an unfortunate situation. We had a really wonderful mother. She’s incredible, right? She’s got a child who needs 24 7 care and she has changed her entire life and it’s completely dedicated to this child who is catastrophically injured. She’ll never walk, she’ll never really talk. She has severe brain damage, and that’s notwithstanding the fact that 80% of her intestines were remote. So she’s on a G-tube and likely may never really eat solid foods. So we had a really wonderful mother, and I think one of the things that resonated besides the liability, which I’m sure we’ll talk about, was that they trusted her and they felt for her because it was sincere and they felt for the child, they understood how difficult the situation it was for this family. I think that resonated well with them now withstanding all the word games and all the stuff that Abbott tried to do in the trial that I don’t think resonated with them first and foremost. I think our plaintiff, she was just wonderful. So we were really blessed in that aspect.
Susan Barfield (02:53):
You kind of touched on one that she was so genuine, but what do you think some of the other key legal strategies that led to the success of this particular case and any pivotal moments during the trial that you think influenced the outcome?
Tyler Schneider (03:07):
One thing that Jake did, and he deserves all the credit in the world, he was fantastic in trial, he did really well, was that Abbott seemed to shift their storyline in the trial. Basically, the positions that they had taken in depositions, they took dramatically, I mean literally the opposite position in trial. And their explanation for it was, I was confused or I was tired, or I didn’t understand the question, and they were very simple questions, is this a risk factor? And so I think Jake did a very good job right out of the bat just attacking that and exposing it and just showing that it wasn’t, this isn’t just confusion, this is strategy, this is lies. And I think that really resonated from the beginning and it kind of set the tone. And once we had established that, in my opinion, on their heels a lot, because they were having to not only defend the case but also defend their positions, when they would take more aggressive stances on things, it seemed to me not as genuine and not and more desperate in a way.
Susan Barfield (04:11):
Sure. Do you think there was a moment during the case that significantly influenced the outcome?
Tyler Schneider (04:17):
Well, first off, lemme say this. The trial was not without its weirdness factor. So the third day, one of the jurors had a seizure and had to be taken out on a stretcher. That was a whole, very scary event and unexpected. The next day while our marketing expert was being cross examined, one of the defense attorneys collapsed and had to be taken out on a stretcher. Oh my goodness. Thankfully, both of them totally okay. Everything worked out, but it was a crazy first week. But as far as moments that resonated, there was some things that we did as far as demonstratives, especially with the failure to warn case, just getting them to establish the defense witnesses, very basic things, kind of forcing them into honesty of giving them going through. Jake had one example as he had this wheel and he went through it progressively, and the wheel for each spoke on it was an example of one way that they communicate with mothers.
(05:16)
And every way that they communicated with mothers was one way that they failed to communicate anything about the risk of NEC. And so as he went through that and you establish all these ways, all of this money spent to communicate to moms to buy, buy, buy, trust, trust, trust. Never once was there any communication about risk. And then when he flipped that and he showed things such as the product, and you show all the benefits that they tried to promote and push and communicate, and how limited the science is on those benefits and how easy it is for them to communicate information about the product. But yet they can’t once ever find a way to tell moms about this severely serious gastrointestinal disease that children are at a much higher risk of developing when they use this formula. So I think with some of the witnesses, especially the corporate representative doing those demonstratives where they kind of felt like, I mean any human would understand, yeah, okay, we could communicate this, but as a defense witness, they’re kind of trapped. So I feel like those moments really resonated
Susan Barfield (06:25):
Well. A lot of these mothers are young moms and they’re trusting that the advertising, the marketing, what they’re being told is true. And so I’m glad Jake shone some light on that. With the two recent verdicts, I guess your verdict, and there was another $60 million verdict in 2024, how do you think these outcomes will influence the MDL in any of the ongoing NEC cases?
Tyler Schneider (06:46):
Yeah, I mean, at this point, given the media statements we’ve seen and some of the lobbying pushes, I mean, I think that there’s just going to be more trials right now. I don’t see that changing. It is what it is. And I think that’s what we do, and that’s kind of the purpose of this. But both cases, Watson case, which was in St. Clair County, Illinois, they got the $60 million verdict that was against me, Johnson on the Infamil product. And then our case was against Abbott on a Similac product. There actually is a coming trial think that they will start picking a jury September 30th in St. Louis City. And that case as of today, has both products, has both defendants. This is the only way that you can get a company’s this size to listen. You have to impact them, and it has to impact shareholder value. And so if this is the route we’ll go and we’re going to have appeals and all that. But right now, I think we just have to continue putting these cases together and trying
Susan Barfield (07:45):
Them. Are we still set for the upcoming bellwether trials, NEC MDLs in May of 2025? Is that still on track?
Tyler Schneider (07:52):
Yeah, we’re not active in the MDL. We’ve done all our cases in state court. But the last I heard, yes, they’re on track and I know they’ve been proceeding forward. They’ve got their experts ready. They’re doing plaintiff specific discovery, especially the deposition. So as far as I know, yeah, that it’s set that there’ll be another trial in St. Louis in September. The MDL has their trial coming in the spring of 2025. Shortly after we should start seeing trials in Cook County, Illinois, Chicago, and I know there’s other venues. Philadelphia is moving towards a trial. There might be some others, but there should be several trials in 2025.
Susan Barfield (08:30):
As far as the recent outcomes, how do you think this has impacted public awareness about the risks associated with cows milk based formulas, and do you think we’ll see any changes in the industry as it relates to the practices?
Tyler Schneider (08:43):
So I really do honestly, and it’s funny because sometimes you do these cases, and when I say these cases, mass torts in general, and you worry, is it ultimately going to make a change? One thing that we saw in our case actually is between the time the child developed neck and we went to trial, the NICU where the child was treated at actually changed their feeding protocol, had that protocol been in place, there is a potential chance that this whole incident could have been avoided because it would’ve extended out how long she got donor milk. What I do think is with this getting out in the media that more neonatologists are talking, they’re looking at things that they weren’t looking at necessarily before, and that these nutrition committees that ultimately develop feeding protocols and have donor milk at these NICUs are going to look at it.
(09:28)
And I think that they will ultimately make change and they will say, Hey, let’s wait until these babies are a little bit bigger before we transition ’em to formula. Let’s wait until these babies are a little bit older. Until we transition ’em to formula, there’s no reason to take them off of donor milk. So early we weren’t aware of this significance of this risk. We weren’t aware of how profound it’s, and so it’s one of those things that’s like the information is out there, but it’s all tucked away in cabinets or in dusty corners. It’s just that you had to piece it together like a puzzle. And the beauty of this litigation is it’s kind of putting all those pieces together so that hopefully NICUs and neonatologists are seeing it. They actually are seeing the whole picture, the scope of research and information that they maybe previously didn’t have access to. So I do think ultimately from this, we’ll see changes in feeding protocols.
Susan Barfield (10:18):
Yeah, exactly. They’ll respond accordingly and change their protocols. And hopefully this will positively impact all the future babies
Tyler Schneider (10:25):
Positively impact conversations they have with moms.
Susan Barfield (10:27):
Right.
Tyler Schneider (10:29):
And some moms for their choice might not want to breastfeed just because maybe their mother didn’t or they’re uncomfortable with it or difficulties. But maybe this will change some of the conversations and moms aware of the risk will at least click into their consideration.
Susan Barfield (10:45):
Yeah, absolutely. And I guess last, what do you recommend or what are some of the guidance that you would suggest for attorneys representing clients that have these NEC cases? What are the most important elements that they should be focusing on?
Tyler Schneider (10:58):
Yeah, so these cases are incredibly complicated from a medical stance because you’ve got a child in a NICU often for an extended period of time. And NICUs have, in our case, there was over 200 medical providers between nurses, dieticians, neonatologists, surgeons, neurologists, radiologists. And so you end up with thousands and thousands of pages. Pages. So pages, one of the most important things of these is ultimately just establishing the baseline stuff. There are a lot of moms who have heard the word neck and they remember it from their time in the nicu. And so they think maybe that the child had been diagnosed, but ultimately the child really wasn’t. The child was vomiting or was having some kind of feeding intolerance, but the Dr. May have talked to him about, Hey, we’re going to slow back feeding because there’s a risk of neck and something like that.
(11:49)
So we have seen false positives, not that mothers lying in any regard, but just that they remember that differently. And then the second hardest thing, actually, the number one hardest thing is establishing product and feeding. And newer cases are a little bit better because since the implementation of Epic, you see a more clean feeding chart, but older cases or hospitals that didn’t transition as recently, you might have to really put together the puzzle of what was this child fed, because sometimes it’s ambiguous. It just says formula or fortifier or even more than that. It’s oftentimes just acronyms. And so you might have to subpoena the hospital to figure out who was your contract with, what products were you providing, what product did you provide this baby? But as far as that is the threshold, right? You got to figure out your diagnosis and you got to figure out your product.
(12:40)
And that is harder than most cases because of the giant mass. I mean, Susan, you’ve seen some of these records. We’ve talked about this extensively. They’re complicated. And what we see a lot in NICUs unfortunately, is a lot of copy and paste. So it doesn’t always, chronology isn’t as clean as if you had a special event or honestly somebody dealing with oncology where you kind of can very seamlessly follow the treatment. There’s just too many in and out physicians and you had to piece together. So you might have a note from November 18th that is actually talking about something that happened on November 13th because the resident had done the note and it wasn’t until a few days later that the attendee actually reviewed it and signed it. So they’re complicated records, so make sure you look at them closely. The other thing you need to talk to is in getting figured out, which can be complicated, is was there donor milk available and what were the conversations that were had with the mother?
(13:41)
Was there, it’s rare, but sometimes there’s informed consents on formula. There’s almost always an informed consent on donor milk, which by the way, that’s a little bit ironic. Donor milk availability is an important thing because we’re not trying to remove this product from the market entirely. Despite everything they keep putting, the manufacturers keep putting out into the media. This isn’t something where we’re saying this needs to be eradicated. This is something where we’re saying it needs to be warned about. Mothers need to be educated and they need to make an informed choice, and it should be something that’s only provided with medically necessary. If you had a situation where there was no donor milk, this was the only option, that’s a different case maybe, and you got to take that into consideration. I’m not saying it’s not a case, but it’s something is the factors a
Susan Barfield (14:25):
Little bit. Following this trial, were there any challenges posed by the defense that is your strategy? Has it changed at all coming out of this trial?
Tyler Schneider (14:34):
I think like anybody who does these we’re wiser. We understand things better that were complicated at the time, things that we probably put too much emphasis into, but ultimately the storyline hasn’t really changed lot since what we developed through the depositions. And in the case, I think what you’ll see a lot, especially as we get to specific cases, specific trials, is that this is a very specific causation heavy case because all of the infants, they’re vulnerable, right? These are infants in a NICU. They’re not coming in perfect health, everything, right? Because they’re born premature, which carries its own risk, they oftentimes need help either breathing or feeding or something like that. So what you’ll see a lot of is, in my opinion, is the defendants trying to pivot from the liability story and focus only on, we couldn’t have done this to this child. Look at this child’s other issues.
(15:37)
Those are cause of it. And in fact, a lot what we saw in our trial was them trying to insinuate, or it was almost like being cynical. I think it was our fourth witness when we finally got into the plaintiff’s health, the first three witnesses were on liability. And as they would come up to examine a witness, they would say something like, ma’am, do you realize that you’re the third witness in this case? And they haven’t called one witness to deal with the child’s medical. So they kept trying to make this insinuation of all they care about is liability, specific causation is the problem here. Honestly, there was some strategy behind that. There was also some reality of when witnesses were available. So it was a little bit deceptive on their part, but that’s what I see. I think that this is going to become more and more than focusing on specific causation and trying to blame the neck on something
Susan Barfield (16:28):
Else. Well, Tyler, this has been great. Of course, we were excited when we heard the news and wanted to learn as much as we could about the trial and just to understand what we should we being you and your firm sharing with the industry about, for any firms that are committ to work up these cases, what should they be focused on? So grateful for you to take some time to connect with me. As always, I love visiting with you, and so thank you so much for taking the time to record this stream.
Tyler Schneider (16:55):
Thank you, Susan. I’m grateful to be on. I appreciate it.
Susan Barfield (16:58):
Have a good day.
Tyler Schneider (16:59):
You too.
