Host Sean Harris talks with OAJ member Steve Babin about Mass Torts and multidistrict litigation.

Sean: Hello, I’m your host Sean Harris and this is episode 41 of Civilly Speaking brought to you by the Ohio Association for Justice. Today is August 23, 2018. I’m here with our guest Steve Babin from Columbus, Ohio. Steve, thanks very much for joining us here on Civilly Speaking.

Steve: Thanks for having me Sean.

Sean: So our topic today is this concept that we hear lots about and maybe have people think they have some idea, but when we say mass torts, what are we talking about?

Steve: So mass torts is exactly what it sounds like Sean. It’s a mass personal injury claim for a number of individuals that have suffered similar personal injuries and today when we look at mass torts we look at a few different areas. Your mass torts are going to be either claims against medical device manufacturers, pharmaceutical drug companies or chemical polluters in the toxic tort area. That’s your general mass tort universe today.

Sean: I’ve heard about MDL’s, multidistrict litigation, what’s the difference between and an MDL and an MCL?

Steve: Okay so an MDL is a multi-district litigation in federal court and MCL is usually multi, I think it stands for county litigation and a state court. Essentially the same concept. You want to consolidate a number of personal injury claims that are similar, either in state court or in federal court. Now the MCL is usually going to be limited to the jurisdiction in which the defendant resides. The MDL doesn’t have the same limitations and then you know there will be different applications of the law with respect to where you end up.

Sean: And so how do, on the federal level, how do one of these MDLs get started?

Steve: So on the federal level, what starts with a mass torts is you’ll have some big mass tort firms that are well seasoned and have enough capital to do the initial research, right? These firms are constantly doing research, they’re constantly looking at medical literature and they’re constantly looking to see what the next mass tort will be. What medical devices or pharmaceutical drugs are causing injuries right now? What do they FDA adverse event reports say and after that research has been done, they’ll start filing cases in federal court and generally what will happen is you’ll get a big enough mass of cases that the plaintiff lawyers will finally start talking to each other and they’ll go look what are we going to do with all these cases? I have a thousand of them. The other guy will go I have two thousand of them and they’ll decide to put a team together and that team will file a 28 U.S. Code § 1407 section motion to transfer and consolidate the cases. That motion will go to what’s called the JPML panel, it’s a panel of seven judges, federal judges that are either district or circuit court judges all from different circuits.

Sean: And what does this panel do?

Steve: That’s a good question. They throw it into a magic box and hope something good comes out. So, they decide whether or not to create the MDL and if they do they decide what district and what judge to transfer that MDL to. It’s kind of interesting because it’s basically like an ancient fossil. It’s an actual circuit court that travels on a circuit. I don’t know how they choose where to go, but every ninety days they sit at a different court house so recently I was in Santa Fe, New Mexico and we argued for the Bard Mesh MDL to be transferred here to the southern district of Ohio, which we were successful in that, but the decisions based on geographical convenience to everybody, but they’re all nationwide MDLs nowadays so Ohio’s is geographically convenient as anywhere you can be and then secondarily whether the judge wants the case, whether the judge can handle the case and what the MDL wants to do that day.

Sean: And my understanding is that they will take into account whether the particular judge has handled mass torts before?

Steve: They’ll take it into account, but it’s kind of a double-edged sword there. The JPML panel has also expressed an interest in giving MDL’s to judges who have not yet had the opportunity to handle MDLs and in this case, we argued for Judge Sargus in the southern district of Ohio because of his experience. We recently, I don’t know if you know about this, but he handled the C8 case against DuPont where I think around thirty-five hundred individuals in the southern area of Ohio were poisoned by a chemical called C8 that DuPont dumped directly into the Ohio river, hundreds of thousands of gallons, cause cancer, cause a number of other diseases and illnesses. So, we chose Judge Sargus. I think he did a great job handling those cases. Our second choice would have been a judge in Missouri who had not yet had the opportunity to have an MDL and at the oral argument the court said why we like giving new judges new opportunities this case is so complex we would want to give it to an experienced judge. So, it’s a competing interest there and they make the decision based on the complexity of the case.

Sean: Now Steve you said something earlier that I wanted to come back to and that is that there are these terms that are monitoring, I think you said FDA adverse reports of some kind. What is that and that’s not the same thing as a product recall?

Steve: It’s not. It’s not the same thing as a product recall so the FDA is about as dysfunctional of a regulatory agency as you can have and it’s essentially, in my opinion, it’s essentially an extension of corporate America, right and in order to get a pharmaceutical drug approved or a medical device approved the amount of science is very limited and when you’re in the pharmaceutical drug world you have to do two double blind studies of some kind of sufficient size and the medical device world is even worse. You have to do one double blind study, it could be as small as twenty-five people in that study and once your first device is approved you have this thing called 510(k), which I see you nodding your head as nut, so.

Sean: Tell us, yeah, explain what that means.

Steve: So, what that means is if you have a medical device that’s approved, let’s say a knee. You have knee number one, got approved, we did our one single study. All you have to do to get knee number two approved is say it’s substantially similar to knee number one.

Sean: Even if knee number one was a bad design.

Steve: Even if knee number one was a bad design and you end up with a family tree is what it looks like of different knee products because every new product is a new sale to a new doctor that makes more money for the corporation right? You tweak it this way, you tweak it that way, you don’t do any studies. So, when you have this family tree, you’ll have great granddaughter knee number twenty, but maybe its grandpas recalled, maybe its great grandpas recalled and they still will let it on the market. So back to your original questions what’s an adverse event report? Well what happens is when you put out dangerous drugs and dangerous medical devices like this the FDA has a forum in which doctors are allowed to, not required to, allowed to report adverse events that they think are related to either a pharmaceutical drug or medical device and what you’ll find is some of them do and some of them don’t. Most of them probably don’t and I’ve heard numbers that something like two percent of adverse events are actually reported. Meaning there’s a large body of information out there that’s a black box to us. So that’s what the adverse events reports are and that’s where we start right, I mean that’s where you start to find out whether or not a drug is actually causing a problem and the best sort of adverse event report, at least with a drug is, patients on the drug, problem occurs, patients taken off the drug, problem stops, sometimes they’ll put the patient back on the drug to see if the problem reoccurs and then you know. Well that drugs probably causing that problem. It’s not rocket science when it comes to that.

Sean: Sure. And take us through kind of the life cycle of an MDL. I mean these things kind of take on a life of their own. What are the stages or how does it progress?

Steve: Sure, so I’ll take you through and I’ll talk maybe kind of in the context of this mesh MDL we’re working on right now which is, it’s an MDL against Bard which is the largest manufacturer for hernia mesh in the world I think. They have a sixty to seventy percent market share and first what happened is there were I think a hundred and thirty cases filed in federal court. We moved to have those cases transferred and consolidated and the JPML panel did transfer and consolidate the cases. So, the next step is once you have a consolidation is the courts going to appoint a leadership team, a group of attorneys that will lead the case and do what’s called common benefit work. That’s your pretrial work that will be common to every case. You’re going to do discovery, you’re going to do expert discovery, you’re going to do a lot of general causation work and you’re really going to get those cases, that just the general causation discovery complete for the entire group of cases and you’re going to select what are called bellwether cases, test trials and you’ll try those cases in front of the judge or in front of a different judge if the judge chooses to remand them and the goal would be once you get a few bellwether trials complete you have an idea of what these cases are worth and you can put together some kind of global super fun settlement idea and you can skin the cat a million different ways when it comes to how to settle these cases, but that’s the ultimate goal. It doesn’t always happen that way. A lot of the times what you’ll have is a case with decent liability but you’ll have a lot of plaintiffs lawyers who don’t necessarily practice law that much, they gather up a bunch of cases, and they’ll file cases that aren’t very good into the MDL and when that happens I think the defense lawyers smell blood and they’ll pick off leadership and they’ll settle those cases with the leadership lawyers for their inventory of cases. Your left with an MDL with no leadership and only shitty cases so…

Sean: Right.

Steve: So that’s not good, right? That’s not good at all for anybody and that can happen to, that’s never the goal and I think if you’re on leadership, our proposed leadership, slate and mesh I’m going to be handling the law and briefing in that case and you know the goal is, and we’ve had webinars and seminars and conferences to tell everyone don’t take them and don’t file them if they’re bad cases. We know what liability’s good for and we know what it’s not good for and at the end of the day if you keep those cases it’s only going to harm those clients that are actually hurt, right and that’s what we’re here to do is to get some sort of justice for that harm.

Sean: If a client talks to a lawyer and says hey I think I may have a claim that’s related to one of these MDLs, how do you find out more information, I mean is there a website for each one of these MDLs or how do you get more information?Steve: There will be a website that the court sets up. I don’t know that it’s going to be helpful to, it definitely won’t be helpful to the individual wondering if they have a claim.

Sean: Right.

Steve: And then the markets going to be swamped with, did you have this problem, you’re entitled to money, call 1-800-614 money money money today, right?

Sean: Yeah.

Steve: And they will send you to a marketer and then you’ll usually get sent off to a lawyer. Lawyers websites, a lot of plaintiff lawyers keep really good websites that have a lot of great information on them and you’ll be able to tell then so that’s how the patient would tell is I would say looking at plaintiffs’ lawyers’ websites and we can look at those websites to for trying to refer cases. I can tell you if I have a case that comes in that we’re not handling and I don’t have a buddy whose handling it I’ll Google it and if it’s a firm I know or it’s a firm somebody I know knows, I’ll look it up and see if there you know good and refer the case over to them because the other thing they say and I don’t know how they quantify this, they being you know people in the mass tort world is that, only a fraction of these claims actually get filed. So, I think there are a lot of good claims out there that don’t end up getting filed because lack of knowledge, right, lack of knowledge about what’s happening. I think to put some of the blame on us is lack of knowledge for us to. I think a lot of cases don’t get referred or there’s not a lot of screening done for the cases across practices in the plaintiff’s world so there’s a supposedly infinite amount of claims that exist.

Sean: Now you mentioned something earlier that I wanted to touch on and that is the common benefit fee. What does that cover, how do they come up with how much to charge, etc?

Steve: So, the common benefit fee is the fee that comes off the top of a global settlement fund in an MDL that pays the attorneys on leadership for the work that they did to get those cases positioned for settlement. That fee is generally a percentage of the case. Anywhere between six and nine percent of the case plus cost, anywhere between two and four percent. So in the Bard MDL I think we have proposed and this will probably be to the judge by the time this is out, seven percent for the attorneys, three percent for cost and what that does is it will compensate the attorneys and the attorneys will bill all their hours and the judge will usually check whatever they get paid with a load star hourly rate to see if it’s you know reasonable and fair and then it’s distributed to those attorneys for doing a lot of work too. I mean there will be millions and millions of documents in every MDL, hundreds of depositions in every MDL, MDLs that go to bellwether trials, there will be multiple trials and even if it’s a, so the way it would work is you’d select a case from the group of cases for a bellwether and maybe a different firm that isn’t on the leadership team has that case and that firm would be responsible for trying the case, but they will always end up trying it and becoming a team with the leadership team itself. So, the leadership team will always help try those cases and get them through till the jury decides what we get.

Sean: And you mentioned fees, I take it the legal fees are subject to court approval?

Steve: They’re subject to court approval unless there is a statute that in a state that doesn’t allow you to almost all mass tort cases are signed up on a forty percent fee. So what happens is the attorneys take thirty, the leadership takes ten for fees and costs, and sixty goes to the client. That ends up being the general split on the cases.

Sean: Well you know lots of folks who are listening to this podcast probably don’t have mass tort practices themselves but they may handle injury or comp or those kinds of cases are there ways that we as you know attorneys or injured folks in Ohio should be looking for these cases, screening, keeping an eye out?

Steve: Absolutely and I have met with a number of firms in the last couple months that do volume practice of personal injury, workers’ comp, social security and the one thing that I think, my firm included could do much better is having a database that is searchable and the key things or at least a very good start would be able to have searchable the drugs that clients on and any medical devices they have inside of them. If you could just search that in your database with former clients and current clients when the next mass tort came up you could say oh I have six hundred clients or former clients that took in Velcona I should probably send a letter out to them and see if they had if I don’t have the record to see if they’ll tell me  hey I had this problem happen to me and maybe they have a claim and you know it’s a good way to diversify your portfolio in a plaintiff’s practice right and to build relationships and refer cases over to other firms, but also it’s the right thing to do for your client too. I think knowing that we miss a lot of these claims and these are out former clients or current clients being able to look out for them like that is important. It’s really important at least for me, the reason I got into this game is cause I wanted to help a lot of people right and mass torts although there’s a lot of sex appeal to the people saying mass torts and people think money, at the end of the day you have an opportunity to help a lot of people who are harmed by really, really big negligence right? These are the biggest players in town, they’ve got the most money and they’ll fight you all day long. It makes it a lot of fun, on my side getting to fight the corporate giants in my mind, but it’s also, you know it’s the only way we can get help for all these guys so I think for us like that’s why we got into this practice. I didn’t get a big huge paycheck when I came to a plaintiff’s firm, I didn’t get a fancy office, but I got a good opportunity to help a lot of people.

Sean: Steve, thanks very much for being here today and thank you to all our listeners out there. If you like our show and want to learn more check out and please leave us a review on iTunes and we’ll see you on the next episode of Civilly Speaking.