Talcum Powder Litigation Updates

By Susan Barfield
March 18, 2022

Susan (00:05):
Hello everyone. Thank you for joining another Case Works stream. We are excited and thankful to be joined today by Danielle Mason. She is an attorney with the Milberg Law Firm out of Alabama, and we are also joined by Rick Meadow from the Lanier Law Firm based out of Houston. And we also have from Case Works, we’ve got Dan Comunale who is our VP of sales and marketing, and just really appreciate everyone’s time today. We’re spending some time together to connect and talk more about Talc, about the litigation in and of itself, and then some of the updates. I know I’ve gotten a lot of emails and questions about the recent decisions. And so we just thought we would have two experts on to help in answering some of those questions. One of the first things that everyone of course will want to know a little bit more about is you guys. So let’s start off with a brief introduction. Rick, if you’ll tell us a little bit about your background and what brought you to mass tort litigation, and then Danielle, we’d love to hear the same from you.

Rick (01:10):
Sure. I started in mass tort litigation, probably mid to late nineties with Baron and Budd in their New York office. That office eventually closed and I scooted over to Weitz and Luxenberg, and was one of the senior asbestos trial lawyers until 2004 when I convinced Mark Lanier to open up a New York office. Which we did in 2004 and have been running the mass torts for the Lanier Law Firm since 2004 so it’s about 18 and a half years. And I was on the trial team for Vioxx with Mark, trial prepped for a lot of the other cases. And my job is to determine which mass torts we enter into, how big a commitment we make, and help guide the resolution of those mass torts. So that’s my background in a nutshell.

Susan (02:05):
Yeah, that’s awesome. And what intrigued you about mass torts?

Rick (02:11):
It was the ability or the possibility of helping a large amount of people at once versus a one off type of firm where you do one big personal injury case or one mesothelioma case. Mass torts allow you to not only correct or wrong for more than one person, but alter public policy or protect the public. So it was a combination of those factors that led me to concentrate on mass torts.

Susan (02:46):
So interesting. I did not know that was your background and your progression from firm and how you landed at Lanier. So thanks for sharing that. Danielle, I would love to hear a little bit about your background, how you ended up in mass tort and what’s intrigued you about this industry.

Danielle (03:04):
Sure. Thank you, Susan and Dan for having me on. My background is out of law school, my first legal job was assistant federal defender for the middle district of Alabama. And I did that work for a little over a year when I was then recruited over to Beasley Allen to join civil practice. And it just was luck of the draw that I ended up in the firm’s mass tort unit. Didn’t know much about it at all before being hired into it. And then I got into it and thought, “Oh my God, what have I gotten myself into?” It came to find, and I agree a lot with Rick, the importance of being able to help so many people that are exposed to defective products, and devices, and pharmaceutical drugs.

Danielle (03:53):
And it’s just some of the worst corporate conduct that you could ever imagine seeing. And that really just opened my eyes to how much work we have to do, how much there is to correct. And that is really fulfilling for someone like me, who is just really rooted in trying to find justice, fight for it as much as we possibly can, and really affect overarching change by getting bad products off the market, having companies retool their design to make sure going forward that they’re doing things that are safer for people and consumers.

Susan (04:32):
Yeah. Like you said, as Rick mentioned, it’s a way to help the mass versus just one off cases.

Dan (04:42):
Yeah, especially with holding a lot of the companies you mentioned accountable to the products and what they put out into the marketplace is definitely very rewarding as I can imagine. So that’s awesome. Danielle.

Susan (04:54):
Okay. One thing that I’d love to start out just kind of setting the stage for those… We have attorneys that are watching these streams that are maybe heavily involved in personal injury, wanting to learn a little bit more about talc and about the litigations. So something as basic as just telling us and giving us some feedback about what is the talcum powder litigation and why is this case so important?

Rick (05:22):
All right- Go ahead, Danielle, you can go.

Danielle (05:22):
Great, okay. Well, let’s start with what talc is. Talc is a mineral and this was something that I learned getting involved in [inaudible 00:05:31] and really had no idea where it came from. It is a mineral that is mined from the earth, and I’ve seen photos of how the men that are getting it out, it comes out in huge rocks and they’re wearing these hazmat suits. And that was the first image for me to look at a product that it’s so innocuous, and so sweet, and so soft that it’s not being anything like that at all. It’s a mineral that is mined with a lot of other toxic heavy metals, including asbestos, and that is what has led us here. It’s coming to find that talc in its use and how Johnson and Johnson promoted this product for it to be used on babies, and in particular, for older women or grown women for hygienic purposes, to put it in all parts of the body or on all parts of the body. We’ve come to find that it is dangerous, both external application, and Rick can talk more about the risks of inhaling it.

Danielle (06:37):
So, there are just a number of issues surrounding the use of talc even if you’re doing it properly and using it in the way that Johnson and Johnson intends for you to, it becomes a dangerous product for a lot of users. And it has been around for over a hundred years. And so this litigation got started in the meso context, I think back in 2009. In 2013, the first ovarian cancer case was tried in federal court in South Dakota. And from there, the firm that I was with at the time got involved with the lawyer trying the South Dakota case and started a new front in St. Louis for multiple women. Multiple trials were tried there and I’ll let Rick pick up here, but it’s just been the most fulfilling ride for me as a lawyer to be involved in these cases.

Rick (07:35):
I had been involved with talc causing meso. I think we may have had some cases when I was at Weitz and Luxenberg. So we’re going back to the mid or early two thousands. We always knew how it caused meso through either inhalation or application. Talc is like… Or is asbestos is talc fermented over time. So talc mines will have these, it’s almost like marbled steak, they’ll have little strands of asbestos running through it. And when you mine talc, you blow it up. And then as you know, when you blow it up, all the minerals get mixed together, all the different poisons get mixed together, and it’s impossible to get it out.

Rick (08:25):
So you start at an early age putting on the babies, they’re inhaling it, and it’s on the genital. So it’s going in through, through two separate ways. So we were able to prove that asbestos cause mesothelioma, and then when the Berg case happened in South Dakota, was it? I remember emailing, Mark and saying, “Hey, there’s a whole new frontier of these cases causing ovarian cancer, not just meso, and it may be the asbestos causing the ovarian cancer as well.” So that’s how we got into it. We approached it as an asbestos case and not as a regular products case. So, and then the two cases kind of merged together ovarian through all the different minerals and ovarian through asbestos. And when we tried the case in St. Louis, we tried it as an asbestos case.

Susan (09:22):
Yeah, and you said earlier, what was that that you, the comment that you said, Rick, that the smell of talcum powder is it-

Rick (09:30):
It is a more recognizable smell than chocolate.

Susan (09:34):
Yeah, it’s unbelievable. I mean, when you think about it was a staple on changing tables. I mean, just the impact is so widespread and-

Rick (09:43):
It’s worldwide and J and J did a tremendous job of marketing it. When you leave with your new born baby, you leave with a basket of J and J products. Talcum powder, baby shampoo, lotion, they send you home with everything, and then you just continue on. I mean, men and women use baby powder all through their lives. I still, now that there’s corn starch in it, I’ll still use it.

Susan (10:11):
Yeah, for sure.

Dan (10:14):
Yeah, in terms of… Is the cultural sort of reference that you mentioned there, how does that sort of factor into the case at large, because it is such a staple in various parts of our culture?

Rick (10:29):
Do you want me to go first Danielle, or you can go first?

Danielle (10:32):
I’ll speak to that one, because I think that the cultural aspect of it was very integral in creating a very credible story for our plaintiffs to testify about their use, and their practice, and their habits. One of the difficulties of a product case like this, as opposed to say a pharmaceutical drug or a medical device that has a sticker page, women who’ve used this product for so many years that, no one keeps the receipts of how many years they’ve purchased powder, or they may have stopped over the last five years and don’t have a container to prove their use. So the proof is really the plaintiff’s story. It is what she was taught. And that cultural aspect of it is one that reads very credible, because that is [inaudible 00:11:25] it’s one I knew personally firsthand that this is usually something that a mother passes down to a daughter, a daughter will pass it down to her daughter.

Danielle (11:34):
It’s part of the hygienic routine. In my house, you were not fully clean unless you had had your bath and put your powder on. And these were stories that no matter what woman we were representing, where she lived, what her background was, that story always was very much the same. And so when you hear it over and over again, it has that ring of truth. And it has that ring of, “We believe you, because that is just what everybody can identify with.” And most people, and I believe most Americans can identify with having some type of experience, whether they’ve seen their mother use it or was taught by their mother themselves.

Rick (12:17):
Yeah, the marketing documents from J and J indicate that they targeted black and Hispanic women, especially heavier set women. And that sort of targeted marketing goes to the punitive damages as well. You knew you had a dangerous product, then you’re targeting a certain community. And I forgot to bring up before, when we entered this litigation for the ovarian cancer, I went on Ebay and I bought bottles of J and J talcum powder dating back to the fifties. So we had them from every decade, fifties, sixties, seventies, eighties, and nineties, and the early two thousands. And we sent them to our industrial hygienists who did an analysis of all the samples. And when it came back with over 80% of the samples had asbestos in them. So 80% of the bottles had asbestos. And we brought that up at trial obviously, but that is an indication of how bad this product has been for how long it’s been on the market.

Susan (13:27):
Yeah, that’s amazing. At first glance, the case appears to be about a faulty product. Can both of you explain a little bit why the decision was made to proceed with a failure to warn claim?

Rick (13:39):

Danielle (13:42):
I’ll chime in on this one from my perspective and then Rick can talk about their decisions on this. Just a wealth of information and documents leading back decades and decades of what Johnson and Johnson knew about their product, and they failed to share that. And so failure to warn has seemed a very easy, provable way to demonstrate their liability and their negligence in these cases. And intentionally, in my mind, we go all the way back to very early on when Johnson and Johnson applied for the patent for corn starch products back in the sixties, they wrote in that patent that they understood that talc could not be safely absorbed in the vagina, but that corn starch could. And these were things that they knew when they were telling women that if you just sprinkle a day and it keeps the odor away, these were things that they knew could be very dangerous for women for long term use and never said anything.

Danielle (14:54):
And then in 2006, when IARC classified the perennial use of talc as a 2B human carcinogen, that warning was placed on the raw bags of talc that came from Imerys, which was Johnson and Johnson’s supplier. So on the MSDS sheets, material safety data sheets, that warning was on an occupational document that came to Johnson and Johnson, which really had no occupational reason to be there. These men were handling it, inhaling it, not putting it on their bodies like women would be, but Johnson and Johnson was getting the benefit of that warning through an IARC classification [inaudible 00:15:39] and Johnson did not want to take that same warning and put it on the end use bottle that women are buying off of the shells in the grocery store and at the drug store. So this was absolutely a… It’s a faulty product for sure, but it is a failure to warn case that can be easily proved just through the documents that we’ve been able to obtain in the litigation.

Rick (16:01):
I mean, failure to warn is always the lead off allegation against the defendant. And part of it, if for those people who are from New York, there was a store there Syms men’s store, Syms clothing store, and their slogan was an educated consumer is our best customer. And in this case, an educated consumer would be their worst customer because what you want to do as a company is give people the opportunity to make decisions for themselves. Tell them this may cause this disease, or it has been proven to cause this disease, don’t hide it. That’s where the failure to warn comes in. You want the consumer to be educated. And then the flip side of what Danielle was talking about, we always like to have a safer alternative. In hips, it wasn’t the metal, it was the ceramic hip that was a safer alternative. Here, corn starch is a known safer alternative, and it should have been in the product from the very beginning. So you have the failure to warn. And on the flip side of that, you always have your safer alternative product.

Dan (17:11):
And Rick, as far… You mentioned obviously, an educated consumer here and the existing plaintiffs, how far back do these injury claims go that are currently in the bulk of this litigation? How far back are we talking here?

Rick (17:25):
Well, the latency period for these cancers can go back 30 or 40 years. The settlement that we just had, we were having a diagnosis from 2000 forward, but mesothelioma could be a 50, 60 late year of latency period. So it goes way back. I mean-

Dan (17:43):

Rick (17:43):
Yeah, it’s really horrible because I was in New York during 9/11, right down the block. That’s where Weitz was. And you have, it was 20 years ago now, you have people who are just now developing cancer from being down there. So the latency period is really long when it comes to meso, long when it comes to ovarian cancer, which is why Johnson and Johnson eventually filed for bankruptcy.

Danielle (18:11):
And unfortunately on the ovarian cancer side, once these women start to exhibit any kind of symptom that makes them think that there might be something wrong, nine times out of 10 it’s too late for them. They would end up getting diagnosed at a stage three or a stage four ovarian cancer, and the prognosis rates for those diagnoses stages are very, very low. Most of the women die at that point, either through the initial cancer or because they get treated and then a recurrence happens or it metastasizes somewhere else. And so, we’re looking at just a very, very devastating disease that is called a silent killer because you don’t know about it until it’s almost too late.

Rick (19:05):
Yeah, and mesothelioma is a death sentence. I mean, there’s no… There’s some treatments to make you last a little longer, but you usually dead within two years. It’s very unusual to last longer than that. And it’s a horrible way to die. It’s like your lungs are surrounded by sandpaper. That’s how painful it is. So it’s one of the worst ways to die.

Dan (19:28):
Wow. Danielle, do you know how many cases have been filed to date approximately?

Danielle (19:34):
Approximately there’s about 38,000 cases. And that is, I think we’re at 38,000 in the MDL. And then there’s somewhere between 25, 3,000 cases that are in state courts. So, and those are just the ones we know about, those are the ones that are filed. There are a number of unfiled cases. And like Rick was saying, people are getting diagnosed today and they will be tomorrow. So we’re at least 40,000 and countless more.

Rick (20:08):
Yeah, there’s a 20,000 ovarian cancer cases each year, people having the disease or getting diagnosed with the disease and approximately 3,000 meso diagnosis every year. So, and this is into perpetuity right now. So in theory, it’s going to keep on going for a while.

Susan (20:32):
When… This is a question, I guess, either of you, Danielle, you can answer it first, but when J and J pulled talc powder from the North American shelves in 2020, it was under the guise of a review, and they did not claim the products were faulty. In your experience, is this a normal approach? And especially if they really thought the products were safe?

Danielle (20:57):
It’s hard to classify anything that Johnson and Johnson does as normal. And I don’t know that I would [inaudible 00:21:05] as normal for them, for this product, for this one reason. Johnson and Johnson, baby powder is their staple. Rick alluded earlier to going back as far back over a hundred years, it was one of their first products from the family company of products that we now all know about. But it was that staple product that I think defined their image, defined the brand loyalty that they have amongst the consumers, their brand identification. If you did a man on the street type of question and answer to people walking by, if you ask them, “What does Johnson and Johnson make?” Nine out of 10 of them will likely say baby shampoo or baby powder.

Danielle (21:56):
So for them to take baby powder off the market because of what it means to them, not so much in sales and revenue anymore, but just what it means to them reputationally and the image that they built their whole family structure on, then I say it’s very unusual for them to have made the decision, but I do think the circumstances around the litigation, what was happening in trials, the plaintiff verdicts, I think all of that put the writing on the wall for them. That the only way they can sort of try to stop the bleeding, so to speak, is to stop people from using the product and getting new people started on it. I think it was ultimately one of those decisions that they had to make, but I wouldn’t say it’s normal just because of how important the product was to them. But I do think that it was about as close as we’ll see to them recognizing that there is a problem with it. I don’t think they’ll ever admit that, but I think that was the hidden meaning behind what they did.

Rick (23:06):
Yeah, I think part of it, or maybe the main driver was the asbestos. Everybody understands how bad asbestos is. And every day during this trial, asbestos was in the headlines. Then the huge verdict that we got, the 4.8, 5 billion, whatever it was. And then on every news report, you’re giving your baby a product that has asbestos, you’re putting a product on that has asbestos. The easiest way for them to cut off that bad publicity was to take a hit and say, “Okay, we’re taking it off the market, or we’re going to just use corn starch products.”

Rick (23:42):
So now you can’t… Because it’s still sold around the world as is, it’s North America where you can’t get the sales. So I think it was a decision, a calculated decision on their part to get it out of the dialogue in North America. And as Danielle said, it’s very unusual for a company midstream to pull a product that they’re still selling. I mean, Vioxx, they took it off the market and then the litigation floodgates opened. But this is the first time that I can remember in a long time that a product in midstream was pulled from the market.

Dan (24:21):
Rick, you mentioned obviously the settlements and the 4 billion, could you just speak to a little bit about sort of the effect on, in the litigation and sort of will the claimants has actually begin to see this money because as you know, it’s stuck in appeals right now and just kind of wanted to… If you could just add your experience surrounding that.

Rick (24:41):
For sure, the verdict that we got in St Louis, the four point, whatever it was, was reduced to 2.1, went up on appeal. Well, it went up on appeal on the 4.5, whatever that was. The appellate court knocked it down to 2.1, went to Missouri Supreme court, they wouldn’t hear it. Went to the Supreme court and they denied cert. So that case is settled and paid. The 22 plaintiffs as part of that 4 billion got paid at like around 2.5 billion. So that’s separate and aside. You now have the remainder of the litigation where some inventories are settled, some are not, but now, right now, everything is frozen. So, and I know we’re going to discuss the bankruptcy, but as far as the settlements are concerned, unless you were settled or had your money, right now, everything is frozen and stayed.

Rick (25:44):
Can’t hear Susan.

Dan (25:46):
Susan, are you muted?

Susan (25:48):
Yes. Let’s let talk about the bankruptcy as you just alluded to Rick. Tell us a little bit about who is LTL Management? We would all be interested to learn a little bit about them.

Rick (26:00):
Okay. So welcome to the Texas two step, which is now in the news constantly. LTL is their liability, is their talc liabilities. And what J and J did is, they took advantage of a law in Texas to come here and dump all the liabilities from talc into this LTL company. The woman who testified before Congress said you have a GoodCo and a BadCo. This is the BadCo. All the liabilities are dumped into that. JJCI, which is Johnson and Johnson consumer products maintain the assets and the products. They then took LTL, went to North Carolina, declared bankruptcy of that company. And as part of the bankruptcy, they asked for a stay not only on the liabilities, but also on the parent company. So you can’t proceed in bankruptcy court and you can’t proceed in regular court. The court ended up granting the bankruptcy and granting the stay.

Rick (27:02):
So right in now, everything is frozen while the appeals go forward on the JJCI part, actually both parts. But Johnson and Johnson took advantage of this law in Texas and this law in North Carolina to dump all their liabilities into one company, bankrupt it and then really, and for lack of better term, screw all the victims of their products. And it’s just the most infuriating thing as a lawyer representing injured victims who now have to wait probably years for any sort of resolution. And most of them are going to die in the interim. So Johnson and Johnson again, made a move, they’re a $450 billion company, but they decided to dump all these liabilities in one and declare bankruptcy. So Badco and GoodCo went to bankruptcy court, now everything is stayed. I think that’s it in a nutshell right now.

Susan (28:01):
Yeah, yeah. Danielle, anything else you would add to that?

Danielle (28:06):
Well, that’s the primer on the background. If we’re getting into the, why do we think this happened? Why do we think that the judge granted Johnson and Johnson’s petition to institute this bankruptcy? There was a motion to- The plaintiffs filed a motion to dismiss the Johnson and Johnson for this bankruptcy, and a hearing took place, I think the week of Valentine’s day. And luckily the court was nice enough to allow those of us who were not able to be there in person to watch it on Zoom. And so I made it a point to keep an eye on what was going on every day. And the things that stand out to me, quite frankly, the law regarding what the judge is analyzing in terms of why and how a company should be able to file bank bankruptcy.

Danielle (29:03):
The good faith argument, is the company doing this in good faith? Seemed to take precedence over everything else, including things like, is there real financial [inaudible 00:29:16] which, in our minds, if I wanted to personally file bankruptcy, I would need to be in dire financial condition. Most of the time we would think if a company like this wanted to do it, that dire financial condition would be something that would need to be proven. And like Rick said, Johnson and Johnson is a $450 billion company. They have a credit rating that is higher than the U.S. government. There are just a ton of reasons why that just seems very intuitive that a company as large and as dominant as Johnson and Johnson can do this, but the judge’s ultimate determination was they acted in good faith. They didn’t see anything that was a smoking gun on bad faith to think that this was not something that you could [inaudible 00:30:10].

Danielle (30:10):
Another one of the things, and I remember sitting, watching the hearing and in my mind, I thought, if anything is going to resonate, it’s probably this. Johnson and Johnson spend a lot of time arguing about plaintiffs with lottery verdicts. I probably focus group that word because you heard it 9 million times. There are a lottery verdicts in these talc cases that they put up every verdict that had been tried and most of them are, a lot of them are, plaintiff verdicts and they put up those numbers and then they put up the number of cases and did this calculation and said, “Your honor, it would take us 4,000 years to try all these cases in court.” And just gave this very, “Oh, woe is me. This is too daunting. The court system, isn’t the place for something this voluminous for all of these women. Some of them are going to get money going to trial, but then the majority of them won’t. And so this is the fair and equitable way to resolve these cases.”

Danielle (31:15):
And at the end of the day, I think Judge Kaplan looked at that as a judge and looked at it from the perspective of judicial economy and resources and all of these things and decided, “I think you’re right.” Obviously, us on the plaintiff’s side disagree. And I think that it was a very limited, myopic view of the issue here, because what I think this has done is set a precedent for companies to now just come in and not have to deal with those bargain basement legal concerns about having dire financial distress. And is there an ongoing concern for the company such that if we don’t do bankruptcy right now, that it will frustrate your ability to go forward. We are talking about a company that has no ongoing concern other than resolving talc cases.

Danielle (32:10):
And then it is valued at the old value, at the maximum value of what old JJCI was valued at, which is $60 billion. So what they are telling the court is, “Hey we want to trust for 2 billion, but we have up to 60 billion to resolve these cases.” But they’re definitely going to try to keep that as low as possible when it comes down to really talking about the value of these cases. And none of that has anything to do with them being in any kind of financial distress or that they are trying to continue their operations or something of some other benefit that LTL is supposed to be giving. There is no other benefit.

Danielle (32:55):
So I think that’s a dangerous precedent going forward. And Johnson and Johnson has created a playbook for corporations who don’t want to deal with liability to basically make a shell company, put liabilities into it and say, “This is better than the tort system.” And so, do I think every company is going to try it? No. But I do think it does give a pathway and a platform to companies who are dealing with thousands and thousands of cases who have had cases try with multimillion dollar verdicts. If J and J can get away with it, anybody can.

Rick (33:40):
I agree with Danielle a hundred percent. And I think Judge Michael “Chamber of Commerce” Kaplan wrote an opinion that took every position that the chamber of commerce has taken as far as these liabilities are concerned. And my antenna went up because he was basically saying, J and J is too big to fail. If J and J fails, you have hundreds of thousands of people who are employed there and their families, they’re going to be impacted. So I’m going to look at the ripple effect of a bankruptcy as how it affects their company. I also… What also stood out to me is, they said, “We have cases coming in one an hour, 24 hours a day, seven days a week, every single day of the year.” And when you put it like that, it is overwhelming for a company to handle. And then they mentioned specific plaintiff firms who are still advertising for cases, despite a stay and despite everything that’s going on, which is really bad for us.

Rick (34:47):
There is a group of advertisers who are continuing to gather cases that, in this case, burned us big time because J and J came in and said, “You have this firm out there still advertising, this one still advertising. Judge, how are we going to get ahold of this other than in bankruptcy?” And then as Danielle said, there’s only been, say 12 or 14 trials in the last few years. If you look at 40,000 cases, there’ll never be a resolution.

Rick (35:18):
And Judge Kaplan said, when they said, you’re you taking it out of the tort system and putting in the bankruptcy system, and Judge Kaplan said, “Well, maybe all these cases should be in the bankruptcy system. Maybe it’s about time we looked at the tort system.” So he was… I mean, if you want to take a cold business approach, he was probably… He may have been right about the facts he was saying, but if you look at equity and the harm that’s done to the victims, then I don’t think he was, but he had to come down on one side or the other. And he came down on the side of business, the bankruptcy courts, and big corporations.

Danielle (35:56):
What I would hope, especially given what Rick and I have just said about how the hearing played out. What I would hope is that there is, let’s hold Johnson and Johnson to a lot of the promises that they made during that hearing, which was, “Your honor, we’re ready to mediate today.” They’re ready to resolve these cases and get these women what they need. Okay, let’s hold their feet to the fire on that. When they say, “We’re just starting this with the settlement trust of 2 billion, but we could go up on that.” Okay, well, let’s go up on that. If you really want resolution, then it’s not just for us to get into the bankruptcy system and then allow it to just sit, and then you fight about throwing pennies at these women for how much they’ve been injured.

Danielle (36:44):
So, let’s have some meaningful conversations. I would hope that the judge will continue to press them on being speedy about this, that we get our hands around the universe of this and that there’s still money for women who are being diagnosed today and tomorrow. Don’t know what the cutoff needs to be, people above my pay grade will decide that. But ultimately, there needs to be enough in that fund for those women too. Just because they, unfortunately, didn’t get diagnosed fast enough to be part of this. So I think all of those things need to be taken into consideration. And I really do hope that we put as much pressure as we can on holding J and J accountable to the very promises- And all that’s on the record, what they said they were ready to do, how much they had available. So let’s try to do as much as we can to maximize that and to make them move on this quickly.

Rick (37:40):
If I had to advise the court before the decision, I would’ve had Judge Kaplan tell both sides, “I haven’t made a decision yet. J and J I may toss the bankruptcy unless you put 10 billion into a settlement fund.” Or, “Plaintiffs, I may do this if you don’t come down in your figures.” But he just right away threw the baby out of the bath after the bath water, by making this decision. He had leverage on both sides before he made this decision, and I wish he would’ve used it.

Susan (38:17):
Yeah, so disappointing. That’s such great information. I mean, I know a lot of the things that you guys just shared, the attorneys and teams that are reaching out to us, I mean, we just didn’t have the answers. So certainly appreciate that feedback. Some of the… One thing that I am curious to learn a little bit is, you talked about some of these decisions, so how will this decision impact the work you’re trying to do? What is your team going to be focused on now? And what would a successful resolution look like for both of you?

Rick (38:53):
Well for us, I mean, it’s a toughie. These two decisions have screeched us to a halt. I mean, in good faith, I can’t go out and get new cases because there’s a stay and that’s litigating, there’s a litigation stay. So in good conscious or good faith, I can’t go out and get cases. I spoke to one marketer who said, “You guys interested in talc cases?” I’m like, “No, there’s a stay.” And he wrote back to me, “Well, people are still going after them.” I said, “Hence the bankruptcy.” If we all operated with integrity, and honor, and ethics on both sides of the V, we wouldn’t run into these problems.

Rick (39:36):
But you have people out there still marketing for these cases where you have all these other women who are stayed and the value of their cases are going to continue to go down the more we attack this, the wrong way. So I don’t know what a good position here is. The good position right now is to appeal these cases. Congress is already getting involved. They may legislate a resolution on this, but right now it’s a tough spot for plaintiff’s attorneys to be in.

Danielle (40:08):
I agree with Rick. Congress has to act here. That is just a given and through my work with the American Association for Justice, I know that they are right there, boots on the ground, really trying to advance our interests where that is concerned for congressional action to take place here. There is one thing that is not stayed in the litigation, is taking depositions and preserving trial testimony of dying women. I would recommend that any lawyer that has these cases, just because there’s a stay, don’t just let your clients and their files and all of that, just sit unattended. You need to use this time to check in on all of your clients. If they are in a dire situation, go ahead and get their testimony preserved, so you can have that for posterity later and to help prove the issues in your case.

Danielle (41:11):
Also, now is a good time. Check to just [inaudible 00:41:15] we’ve done all of your due diligence. When we do get to a point, if there is going to be a resolution, that is not going to be the time to scramble and get your medical records and figure out what your damages are, and all of those things. Use this time wisely to make sure that you have all of the pertinent records that you need for your case, get those organized. And hopefully as it relates to appeal, I just saw an article suggesting that Judge Kaplan is not at this point, very interested in designating his ruling as a final order so that the plaintiffs can appeal to the third circuit. He’s like, “I’m not sure I can even do that from the bankruptcy court. The traditional path is to go to the district court.” Which at that point might, if that’s the way things shake out, I believe that would end up going to Judge Wilson since he’s in New Jersey and handling the MDL.

Danielle (42:16):
So whether or not there can be an appeal and which court it would be in is the going question right now and was just reported earlier today in Law360. So that’s something to watch. [inaudible 00:42:32] appeal. And the question we have here is, do you appeal it for talc? Do you appeal it for all mass torts? This is a big issue here. And I think that there’s still some questions to be answered about that. How much more delay do we want for these women versus what we think would be a going concern for all mass tort lawyers in any litigation going forward from here to whenever in the future. These are some big questions that we have and some big issues that we really need to address and deal with. But until then, the one thing that can help settle this would be congressional action.

Danielle (43:14):
And unfortunately we’ve seen a very dysfunctional Congress in the past several years, so I don’t have much hope on that front right now, but those that are positioned [inaudible 00:43:28] be our interest on that regard. They definitely are. So right now, just pay attention to your clients, take their depositions, if they are in a dire health situation, get all your medical records in order. And at this point we just… I’m a praying person. So, I’m praying that these women get the result that they deserve sooner rather than later.

Rick (43:56):
Yeah, I would just piggyback on what Danielle said, which is an excellent point. Get all your medical records, get all your HIPAAs, get everything, use a company like Case Works, get all your stuff in order, because what’s going to happen if a settlement is pushed through, it’s going to end up being first in, first out. So if you’re ready to submit your, your cases without deficiencies, without J and J, or the bankruptcy trustee or whomever, the settlement administrator says, “No, you need this. You need that. You need that.” You won’t have everything in order, so you can submit your packets fully complete and get your money for your clients. So that was an excellent point. And which is why a company like yours is just perfect for this litigation.

Susan (44:40):
Yeah, no, that was fantastic feedback. Danielle, Rick, I mean, this has just been phenomenal. I mean, I’ve learned a lot. Certainly appreciate both of you for taking time to connect with Dan and I, and to share not only the feedback, but the updates and your suggestions. I know the attorneys that we work with have been, like I mentioned, are asking questions, and I know that lots of people in the industry are trying to figure out what are next steps? And I totally agree. I mean, as things progress, you need to have all your cases in order. The retention policy to be able to get medical records. So not just stopping, working up the cases, but having everything in order so that you’re ready when the time comes. Thank you both so much for taking the time to share. Anything else before we sign off from this stream?

Rick (45:33):
No, I just encourage all the plaintiff’s firms listening to use Case Works

Susan (45:37):
Awesome. Well, we certainly appreciate that Rick and there might be some attorneys that want to reach out to you both directly. Danielle, how can attorneys reach out to you to learn more if they have questions or such?

Rick (45:53):
Very easy email address, dmason@milberg.com

Susan (45:58):
That is easy.

Danielle (45:59):
I’m happy to help and answer anybody’s questions. Talk more about this. Talc is one of the cases that I fundamentally feel like I was meant to be a lawyer, to be a part of this. It’s been a part of my life for eight years. So just keep fighting the good fight. It’s not over until the fat lady sings and I [inaudible 00:46:19] singing it.

Susan (46:21):
Your passion certainly comes through Danielle for sure. Rick, what about you? How can people get ahold of you?

Rick (46:27):
Through Bill Barfield, he’s my agent. Just kidding. Just kidding, richard.meadow@lanierlawfirm.com.

Susan (46:35):
Awesome. Well, good. Well, Hey again, certainly appreciate it. Great. Having a discussion with you guys. Certainly appreciate it. Have a great rest of your day, and thanks for talking talc with us.

Rick (46:47):
Thank you.

Danielle (46:47):
Thank you for having me.

Dan (46:47):
Thank you both so much.

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