Judge Rules Paraquat Expert Excluded, Tylenol Experts Subject to Daubert & Hernia Mesh Mediation – Tort Talk Thursday 5/2/24

By Susan Barfield
May 1, 2024

Susan B. (0:00:06) – Hello, everyone. Welcome to another Tort Talk Thursday. Always excited, Joe , to be here on a weekly basis with you, sharing all the news and updates as it relates to mass tort and the industry. So I know today we’re going to be talking a little bit about a few torts, Tylenol, Paraquat, and what is going on with Hernia Mesh. So give it to us, Joe.

Joe F. (0:00:24) – Thanks, Susan, for having me. Always excited to talk all things mass tort. I think I’ll start here with a little bit of bad news. So we were all waiting for the Daubert opinion to come down in the Paraquat MDL, where there’s over 5000 cases pending. This was a little bit unique in that we had the arguments over six months ago and there was no ruling. The judge started doing a little bit of a docket cleanup and was dismissing some cases. Things were getting cleared up, and to me it looked promising, and I thought we were going to get a ruling in our favor. Unfortunately, that didn’t turn out. There was a ruling where the judge overseeing the MDL excluded the plaintiff’s experts. So the judge found that the expert’s opinion essentially wasn’t credible, the methodology wasn’t reliable, and it couldn’t come before the jury. Fortunately, this opinion only applies to the four bellwether cases. So those cases were dismissed. But the rest of the inventory is still alive. But we have to do a lot of work now and get this litigation back on track. So the next step is there’s going to be a next group of bellwether cases, 16 cases, eight selected by the plaintiff, four by the two defendants. Get that together, get those cases worked up, come in with another expert. But this is at least a year away from happening. So a discouraging development, but it’s not the end of anything complete?

Susan B. (0:01:41) – Yeah. Good. Okay, well, give us some good news. What about Tylenol? What is going on there?

Joe F. (0:01:46) – Tylenol. I’m hearing some positive developments. As we all know, we also had a Daubert ruling go against us in that litigation. But strategically, that only applied to the file cases at the time. So there were a couple of hundred cases that that ruling applied to, but the plaintiffs were able to successfully motion for the court and come in with a new expert. So we have a new expert that we’ve put forward. Parties are kind of going over the discovery in that getting the expert opinion, and we should have a ruling on this new expert by the fall here. Whether that expert could come along here. While that’s going on in the MDL, I’m hearing from my colleagues that we’re working on getting some state court actions going for the Tylenol litigation. So we’re looking at our typical jurisdictions, California, Illinois, maybe Pennsylvania and some others. So even if we’re not successful in MDL, I think we’ll have some state court actions pop up here before the end of the year.

Susan B. (0:02:37) – Good. Okay. And lastly, Hernia Mesh. What are you hearing there?

Joe F. (0:02:41) – Hernia Mesh. We’re all eagerly awaiting what’s going to happen in the bard mediation. So as you remember, the judge and the MDL canceled the forced bellwether trial, ordered the parties to mediation, gave us until May 24 to either come to an agreement or let the court know there’s an impasse. I’m hearing some positive developments. I’m hoping we’re going to make progress. And before that hearing date, what we’ll have some news on a settlement. In this litigation just to the sheer number of cases, I’m anticipating it’s going to be a global. So we’ll keep everybody updated when we hear more about that.

Susan B. (0:03:14) – Fantastic. Awesome. Joe, as always, we appreciate you taking a moment to visit and to give us these updates and insights and have a great day.

Joe F. (0:03:22) – Thanks. Susan.

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