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S4 E3: Organic Tort


ICP Logo

S4 E3: Organic Tort





This week’s show revisits the CPAP mass lawsuit, how things are going, and the level of difficulty in generating leads and cases for it.

Another food-related class action lawsuit, this one affecting toddlers and children who consume purees, cereals, and other snacks from a variety of companies ranging from budget to high-end organic products. The conversation dives into why this mass tort is plausible despite no recall or other remediation being implemented by the FDA so far.

Finally, the episode looks at the fundamentals of running an effective mass tort campaign and why more is always better when it comes to implementing a mass tort strategy.

Resources mentioned in our episode:

Send us your questions at ask@incamerapodcast.com

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Liel: [00:00:00] Our congressional subcommittee requested seven of the biggest baby food producers to submit internal papers in November of 2019, following an external study that revealed high level amounts of heavy metals in their products. I’m Liel Levy, co-founder of Nanato Media and author of Beyond Se Habla Espanyol How Lawyers Win the Hispanic Market and This Is In-camera podcast where we believe that baby food should not have one hundred and seventy seven times the lead levels allowed in bottled water. Welcome to In-Camera podcast, Private Legal Marketing Conversations, Grace. Welcome back. How are you today?

Grace: [00:01:06] Good. How are you, Liel?

Liel: [00:01:08] I’m good. Grace, thank you so much for asking. And just as we were talking a minute ago, getting ready for trial or your summit, the first official summit of twenty twenty two, it’s exciting. It’s going to be big Grace, right? They’ve just send the attendant least it looks like it’s right around a thousand people that are going to be participating and whatever else picks up over the next week, which usually does increase a little bit with people making last minute adjustments. People that have been kind of like waiting to see how things evolve with all of these Omicron situations still lingering around. And so it looks like it’s going to be an eventful weekend starting next week.

Grace: [00:01:47] It sure well, there’s a lot of events going on between post pre and, you know, as you know, as we were discussing, we are also going to have John McEnroe represented for us.

Liel: [00:02:00] Yeah, that’s that’s really fun. I really like what you guys are doing with all of your concept, really taking an event and making a whole concept out of your presence there. And you know, it sounds like you guys are not going to disappoint this year, just like you didn’t disappoint last year with a whole raising raising car team. It’s really, really fun stuff, Grace. That’s exciting. And I’m sure and I’m sure you’ve been busy and investing a lot of time and effort into it, but it will pay off. Guaranteed, I can see it. So Grace, let’s talk about mass torts because it’s twenty two and we want to check the temperature on how some of the mass torts that we may have already talked about in previous conversations are doing. And yesterday, when I brought up Grace the topics, what are we going to be talking about? You literally just jumped right out of the gate and said, Cpap and baby food. And I was like, OK, let’s talk about and Cpap and baby food. Because even though swipe up, we’ve talked about here before and it’s been almost a year since we actually brought it up baby food. Our latest conversation on that was more focused on the baby formula. Correct? Right. Yes. And so what I’m hearing and learning is that last year, somewhere at the beginning of the year, in the first quarter.

Liel: [00:03:30] Right? February, apparently. There was oversight committee delivered our report revealing that baby food like the most basic baby food like oatmeal and rice cereals and puris and snacks are containing very high levels. Or let’s just say it, high levels of toxic heavy metals. And so that is quite shocking, Grace, because, you know, before you explain a little bit more about it, like I’m reading here about the brands that are being called out in in this report. I mean, you have Gerber products, you have Beach Nut Nutrition Company Hain Celestial Group. Nurture Inc. Yes, and Grace, like I was, I was looking at some of these brands and like some of them, are organic, right? Have organically labels on them and they would be on the higher end of pricing in retail. So Grace, like I cannot even start grasping the the amounts of these products that get consumed. Every single day by children all across the United States. And so if I may, I would like to start with a very, very simple question how is it possible that the FDA did not pick this up and say, Hey, there is, there is a problem here with these products. They cannot be approved for sale. How could that happen?

Grace: [00:05:28] So for those of you that don’t really know how these things kind of come to be or come to pass? So food products are approved, right? As a big group, let’s say. Yeah, right? Because Gerber is a huge company, Beach Nuts, a huge company, all of these brands that we’re mentioning are pretty large company brands. So they’ll create their products, the ingredients get approved, everything gets approved by the FDA, and they even have to put exactly how they make it. And and all of that right that that is the process for the FDA to approve a new food product. It’s going to go out to market. Now they have what they call acceptable levels of certain things. And in this case, it’s lead and other metals, right? Right. So there are acceptable levels of lead in your food currently.

Liel: [00:06:21] I know I was. I was surprised to hear that there is an acceptable level of lead that can be on water right parts per million. Not yet that exists. Yes, it’s shocking, right? Because you always think that any leader is going to be terrible, but there are acceptable levels of that. And so,

Grace: [00:06:40] Yeah, as I was saying, the acceptable levels of lead seem very unusual to all of us. And as you said that that how are there acceptable levels of lead, but there are there acceptable levels of certain metals and things like that. So they are supposed to test regularly there lots in batches as they’re made. So that is how they potentially found out about the problem. But it’s approved. So the food item and the food product is approved so it can continue to get produced and sent out. But somewhere along the way in the supply chain or when it was created, there was a problem in when it was made. So there had to have been at some point in the logistics of it being made and sent out. It was contaminated with lead. And at the moment, what they’re looking at has to do with the fact that. It’s it’s always at least different types of product liability for those of you that do or don’t understand how mass torts work and it could be anything, any number of things where they say negligence or they knew about it and they hit it, or they sold it and they sold it without approval, right? So there’s just different levels of product liability. And in this case, it was. Client adverse actions, which are reports from people like you or me that actually took this product, in this case, children were eating this food items and there were enough reports of people testing themselves. And seen their children OK, and there are lead tests out there to find out if there’s too much lead in your body and then then that can cause other kinds of things, but we can stop there for right now. Yeah, that’s to answer your question.

Liel: [00:08:32] Yes, it does Grace. And so here is here is the thing, though, that I find a little bit of a gray area when it comes down to this particular mass tort and not playing devil’s advocate, I’m just genuinely trying to see, OK, how do you measure the impact that having consumed these products can have on you? And if I were to compare these to other cities where there’s been lead poisoning cases, right or late lead contamination cases on the on from the water? These are developmental issues, right? Right. And so wouldn’t it be very hard to prove that a kid is having developmental issues because they’ve consumed? These products and how do you prove that you like the amount that you’ve consumed these products as a consumer, like what do you what do you need? Like how how do you build your case? Like, do you show up the receipts of the cases of these that you were buying at Costco or or is that the thing only people that have been buying these type of items, these products on Costco and have just receipts of having bought these consistent leaders a very well documented record of or how many years they’ve been buying them and so forth and so on are going to be the ones that are going to be able to move forward with cases.

Grace: [00:09:55] So there’s different levels of, you know, kind of a matrix of injuries versus proof versus settlements, right? And so let’s look at it individually. Let’s say an individual, their child has developmental issues and they fed them Gerber products. Now how do you know if your kid is has developmental issues because of these products? Potentially. Well, as I said, from the very beginning, lead does not ever leave the body. So if you do a lead test and you have what they call a causal link between the fact that your child did not have any issues, but now has this crazy amount of lead in their body, and you bought all tons of these products that are being recalled right now. You could potentially create what they call the causal link that is done by your law firm and by your nurse and double checking all of the facts of the case so you can find out. And there are ways to prove that you use the product in this case. What we use because it’s the same for Zantac, right? How do you if you bought it over the counter, how do you prove it if you don’t have a prescription? Yeah. Well, your loyalty cards, your member cards, they have invoices, receipts, all of that if we get your member card or loyalty card number. Generally speaking, you can go back far enough and find out specific items that were purchased if you don’t have that like in the case of TALC.

Grace: [00:11:30] There are a lot of people that what they sign is essentially called a proof of use affidavit stating, This is the different locations I have purchased it. This is where I bought it. And I, you know, I sign this under the penalty of, you know, basically under oath saying that I am agreeing to the fact that I did actually buy this food product together with the fact that they have a lead test, et cetera, et cetera. They can then still file the case. Now, of course, as we as cases go along in mass torts, for those of you that don’t know or don’t know. Things will come out, right, so sometimes if if there’s a litigation or a settlement or someone wins a particular case, then that might fall off. If you don’t have proof, they may say, I’m sorry, you don’t have proof and it’s a case of settled. So if everybody that doesn’t have proof, you’re no longer part of this mass tort. So it can happen that they changed their minds as they find information and science and learn more about this situation with information from clients, the client adverse reporting actions that I was mentioning before. That they send to the FDA, Hey, my kid seems to be acting funny, there’s lead in after eating a lot of Gerber food products or beach nut or whatever. This is what’s happening to my child. I had them tested and then they send these reports right to the FDA.

Liel: [00:13:02] So Grace, let’s just establish something here. The FDA stands by their wording. They say no. Your report say something that we interpret in a different way. This these products are safe to consume. They stand by it, right? Right. They stand by it because there have not been any recalls and the products are still being sold. Right. So now let’s move in to the technicalities and complexities of this mass tort. How viable is it, right? Because many times you come here, you talk about new mass tort and the mass tort there, there’s already been recalls here. It sounds, and I can actually see here that Gerber, Plum and Nature have already challenged the petition, arguing that this suit should not be consolidated but rather severed. So what does this mean for the chances of this getting somewhere?

Grace: [00:13:59] So that’s why I said before about the science, right? So it yes, they stand by their word. Of course, they’re stating that this could be just a bad batch. Right? And the same kind of concept tha for at TALC very long time saying it was just a bad batch that was affected with the asbestos or this or that or the other. So the FDA is doing its job in the sense that it’s saying, OK, we’ve gotten a notification from enough people that there seems to be a problem, but not a problem so much, and that it’s all of their products that are filled with lead. It’s just potentially a batch that we’re dealing with. So everybody, this is the batch. Here’s the food items, and this is what we’re talking about. And so the FDA is doing its job to inform people about what could potentially be hurting them based on the information they have to date. And so in turn, lawyers, clients or potential clients or people affected by this situation have the same kind of situation for them. They have to see it as it develops. We all see these mass torts as they develop because more science comes out, more information comes out and more testing is being done to ensure by whether it’s the Gerber Company or FDA requiring certain things of the company to remedy or mitigate the risk associated with this situation. So it’s very legalese, kind of just a quick way of saying they’re they’re trying to manage what’s going on. And so the FDA is doing its job. In that sense, it’s managing what’s happening and it can only use what’s been reported. From both the clients and the companies that are affected or that affected them, the clients.

Liel: [00:15:48] So Grace. Are you currently involved in its mass tort? Yes, we are. Ok. How’s the how are the demands level for these one? Is it a popular mass tort? What’s the temperature on this one?

Grace: [00:16:00] So this one, we just started it. But because as you saw, the food list is quite extensive and these are items that are popular brands that people will and do like to buy, particularly the organic right, because that’s the move that people have kind of gone towards. And to answer your question and then I kind of want to go back to that organic thing because I want to mention something to people that don’t understand organic and the organic label. But anyway, to answer your question there, it’s pretty hot. You know, there’s a lot of kids, a lot of people that eat this food products and and as funny as it sounds, I mean, I know quite a few adults that would eat Gerber food products as an adult with their child. So I’m not saying that they could potentially be clients of this. I don’t know, but it is a very hot topic right now, and babies are obviously minors and any child or anybody underage that is being affected by something tends to be a big deal because people want to associate if there’s a problem with their child and there’s a developmental issue and there’s no reason for it in their mind, they need something to associate. And if they their child took one of these food products and was affected and they got them lead tested, they sure as heck want to make sure that their child is protected, taken care of. And that includes compensation if they were responsible, meaning the company was responsible for their child being hurt. So the temperatures are quite hot on that. Any baby food, any baby formula, which is different from the baby food. But the baby formula, baby food and anything baby related is a hot topic, and all of us as a society want to protect those who are cannot protect themselves. And children are probably the at the very top of the list, right side by side with the elderly. I mean, if you think about it

Liel: [00:17:58] Talking about the worst kind of mass tort, it is one that puts at risk the entire children population of the United States. I mean, it’s it’s really, really scary, right? Yeah, it is. It is.

Grace: [00:18:10] And you have small children of your own. That’s right.

Liel: [00:18:12] I mean, of course, they’ve they’ve had some of these snacks at some point in another. I’m very, very thankful and grateful that they do not depend on these type of snacks as their food day in, day out. But that is not to say that they are not a lot of other kids that are. And if you just cannot trust the items you buy in the shelf on a on a supermarket from, I mean, I’m not going to blame this to organic or not organic, but we’ve come to a point that even when you’re consciously trying to make an effort to buy a better quality product and it just not, it’s not turning out to be that way. I think I guess that’s the scary part of it, right? I mean, like, who is who’s watching your back? Yeah, I’ll tell you who’s watching your bike race? Mass torts made perfect Papantonio, all of these great lawyers at the Lake law firm and such. These are the people who are watching over us Grace. Because I mean, I’m really in shock, particularly on this one. I’m really shocked here, primarily by the FDA response towards this because they’re basically taking their I mean, obviously they need to cover their ass, right? I mean, it’s under direct supervision here, but clearly there it needs to be more regulation in here and in their reports, as these are lot more than acceptable amounts of heavy metals present. And you know, they should put in into effect immediate effect right now, a regulation that limits that. I mean, come on. Yep.

Grace: [00:19:40] So to go back to trying to make a conscious effort to purchase food items for ourselves and our children, right, that are healthier and the idea and the concept of.

Liel: [00:19:51] But but that’s what I’m saying. Healthier. What I mean, healthier? What? That’s exactly what it’s like. You basically are almost being pushed to the point, OK by zero processed foods, which wouldn’t it be wonderful? But is it realistic? Can you really just buy no processed foods at all? And so that’s where I kind of like, it’s not realistic.

Grace: [00:20:11] And honestly, the marketing term, because that’s what it is. It is not an actual. It’s not quite the what people think it means organic does not mean that it’s free of all pesticides. Ok. It just means that it’s certified to have grown in soil that had no prohibited substances applied for three years, three years. So if that soil and I’m not saying anybody does this, but if that soil had arsenic in it. Because it was a golf course three years ago. It’s going to have arsenic in it. So people don’t quite understand that these terms, a lot of times are just marketing labels, that is what they are. So you need to make sure you know where it came from, if you can. And that’s why I said it’s really hard to truly buy organic or pesticide free or whatever unless you actually know where your food’s coming from. And we don’t have local markets like that anymore, where you can. I mean, at least not I do here. I’m in Florida, so I have the opportunity to literally go buy bell pepper that somebody grew in, you know, a little farm off of, you know, I-95. Let’s say that’s just our area, but there’s not a lot of people that have that opportunity, much less in the inner cities to to pick produce from the ground and have it, you know, and even then right, that that ground could could potentially have something else in it. So organic the concept of healthy and pesticide free and lead free and this free and that free and non processed, it’s great and we can do our best. But stuff like this will and can happen. Unfortunately, unless you grow all your own food and you know exactly where all your products come from at all times, it’s going to be very difficult to control something of this nature.

Liel: [00:22:15] All right, Grace. Let’s move on to our next mass tort here, and just, you know, it’s CPAP. We talked about that Phillips, you know, using some product that got apparently so the function of the product and you correct me if I’m if I’m wrong. So basically under under silencing mechanism, they were using some sort of foam, right, so that the the device because obviously this is something people use while they’re sleeping cannot be very noisy. So to try to temper the noise, they’ve put up some sort of foam in there. But guess what? It’s it gets loose and then kind of like gets in to the actually respiratory device, and it apparently can cause terrible things like lung cancer. Correct. Correct. Correct. Right? And so what’s the status on this mustard that’s been around already for a little while, right? I mean, has it has it developed into something? Yes.

Grace: [00:23:11] So there’s some action that’s happened. And as of November actually of last year, you know, for those of you again, like you said, it’s a sleep apnea machine. So it’s for people that basically stop breathing in the middle of their sleep. So this helps them continue to breathe. And the foam that he’s talking about is made out of polyurethane. So it’s a chemical, and as it distributes its little bits and particles that you’re literally inhaling into your body because it’s helping you continue to breathe while you sleep. Right. And it’s not just CPAP, it’s BiPAP and certain mechanical ventilators, so they have the list on on the FDA website, actually of the items that were recalled.

Liel: [00:23:49] But all Philips correct?

Grace: [00:23:51] All Philips, all Philips. That’s what I saw. I see only, you know, pretty much all Philips device CPAP devices have been recalled and BiPAP devices? Yes.

Liel: [00:24:00] Now where is that? Let me ask something, and I know I know mass tort is very, very unique. But does it? Does it make it more feasible of of a case of a mass tort when you’re going after one targeted company than when, when you have like in the baby food? We just looked at like seven different conglomerates? And is it less complex, for instance, when you’re dealing with with a size, it doesn’t matter. It doesn’t really matter. It’s not the it’s not how many people you were going out, how many organizations you’re going after. It’s how, how can you prove or how easily it’s to make the connection between the the damaged product device, you know, food in this case to the injury.

Grace: [00:24:50] So it’s actually a little bit of all of it because what if you sue a company that did cause a potential issue or allegedly caused a potential issue and they’re not big enough, they could go bankrupt?

Liel: [00:25:03] Yeah. Well, Johnson Johnson Johnson is huge.

Grace: [00:25:06] Is doing this. Yeah, exactly. So it’s a little bit of all of it, right? So the science has to be solid, you know, and things that come out have to be fairly solid. It needs to be in a favorable state for the MDL. I mean, there’s so many factors that go into a mass tort and even at the end, right? I mean, whether it shakes out. What does the bellwether trial go? Well, you know, does it pass what they call the daubert standard? Does it meaning if does the science, is it science solid enough to be able to move it to the next step of the litigation? And that is what the Dow or Fry standard is considered, by the way, then it has to get to bellwether. Then if they decide they want to move it to MDL or they’re going to be in state court. I mean, there’s so many variables involved in this. Now that is actually what happened in November with CPAC. The MDL class action panel agreed with the plaintiffs lawyers that there should be an MDL, which is a multi district litigation where they grab these cases and put them in one place to make it easier so that you this Phillips does not have to litigate with every single individual, and they do it with a big group. So that’s what the MDL is for. And it was just formed in November of last year, and they the panel transferred the one hundred and fourteen one one four CPAP lawsuits that were pending in the federal court to a single judge in Pennsylvania. So the MDL has been formed in Pennsylvania.

Liel: [00:26:31] Ok. So things are moving forward.

Grace: [00:26:35] They are moving forward and because of the nature of this one in particular, a lot of times I think it’s hard for some people to understand the science and how that will pan out, right in terms of and proof. Right. So because this is a prescribed machine, right, you have to be given it. You have no easier way of getting a hold of records proving that you were given the machine. Yeah, let’s start there, right? So that’s not like where you have to get a rewards card, did I? Where did I buy talc? Where did I buy this? Where did I buy that? Proof of use affidavit, et cetera. No, they were prescribed this. Then the next thing is, did they experience the injuries, injury or injuries that people are saying happened? And in this case, it’s pleural effusion, lung cancer, you know, all kinds of lung serious lung issues. But you also have to think about what if the person had asthma before? What if the person had a history of lung cancer? What if? What if? What if? What if? Yeah. So each can basically get separated by those different injuries together with history, together with proof of use, and that is what’s going to eventually determine. At the end, what they might get in terms of a settlement, but if it even gets there right because it has to pass the very first steps of, is there enough science to move this forward to continue researching and spending money in the courts to move this to a lawsuit?

Liel: [00:28:05] Here is some data I can share with you courtesy of social media, right? This is actually a mass tort that it’s very feasible at this point right now to generate leads for the cost per leads are relatively low anywhere ranging between thirty to sixty five dollars, and the cost per case is just shy of $1000 can be much lower than that. But you know, you always want to budget for what is the upward trend of the pricing, and it’s right right around eight hundred to a thousand dollars. So Grace, you know, relatively speaking for mass tort, this could be a good opportunity, right?

Grace: [00:28:44] Mm hmm. Yes, definitely. You know, as we I’ve always said, you know, even at the beginning when we first talked about CPAP, he said, this is one of those that you know, you can you could potentially get into at a fairly early stage because, you know, it seems fairly solid. And when you can get involved and do a branded play like we were talking about actually before we started the call. When you do branded plays and you start early on, you can pick and choose at your leisure. And because they’re used to seeing you for that particular tort, they will continue coming to you. And over time, as long as you maintain and do all the things that we tell you to do on this podcast, you will continue to gain leads and referrals from those actual leads, getting to your website and actually producing a good organic funnel for CPAP. And you can do this for every mass tort. It’s just it’s a matter of time and effort and doing it the right way. But if you do that, yeah, this is one of those that I would suggest anything affecting a baby. Please, people. Yeah, yeah. I mean, just think about the shock that you have of yourself. That’s that’s the main reason. Honestly, Liel when you ask me, what should we talk about? I was like baby formula baby food. I know we talked about baby formula, but baby food is completely different. It’s talking about all of these crazy products that are, I mean, I remember eating that as a child like my mom, I remember my mother giving me gerber food products.

Liel: [00:30:14] And you know, you know, what’s the part of the FDA response is that the companies have come a long way from reducing the presence of heavy metals from there, where they were a decade ago to where they are now. So you can only imagine, I don’t know, maybe, maybe that’s where I’ve started to get to get thrown in, like after you and I, you and I went to our childhoods, right? I mean, things have evolved towards the trends of being more synthetic and more contaminated, if you may, right? For most of it, when it comes down to food, that’s been the trend. We’re still looking back to the days where we feel food was healthier and stuff. What are we talking about Grace here? You and I were already born past into the years where processed foods were at their really, really highest peak. Yeah, highest peak. We were the white. We were. We were. Yes, we were born into the into the process. Yeah, fast food, high hype of the world. And so I guess this is part of yeah. And I guess I mean, this also shows a little bit the trend in which society has moved and evolved, where we’re where there is kind of a reconciliation between the quality of lifestyles that we want to leave, how what we what do we expect our health to be right? What are we willing to tolerate or not that we probably would not be paying that we were not paying that much attention 10, 15 years ago? And so I think that’s obviously influencing in leading the path forward to also mass tort being filed under the premise that it’s no longer acceptable for companies to get away with that because we’ve consciously, as a society decided that these levels of heavy metals are not our are dangerous, right? It doesn’t matter if they were good or approved seven years ago.

Liel: [00:32:07] Nowadays, there’s there’s more data, there’s more studies that tell us that this is having a real negative impact on children, right? So that’s that’s the thing. Grace, I think we’ve had a really good conversation. I think each one of the things that you’ve mentioned here, it’s been a takeaway, whether it’s been the opportunity of getting into different mass tort, whether it’s be mindful of what you eat and how do you select your foods and also about how to go about marketing your mass torts. If you are on the end of generating leads for it, remember that it’s not a fast process. It doesn’t just happen from one day to another. This these campaigns take time. Really come full cycle, and the more you’re there, the more persistent you are about this, the better results you’re going to get, right? And here’s another thing I will add the bigger you go, it’s also the better right mass torts to require a lot of awareness. And so sometimes it’s better to do a joint advertising effort than just coming in with your own smaller budget, because the reach that you need to really have an impact on a mass tort space is not going to be achieved with limited amount of money, whereas if collectively a group of people are going after it, it’s going to be way more impactful.

Grace: [00:33:27] What do you think, race? Yes, I agree with you completely. Let’s end it on those wonderful takeaways, Liel, and I’ll talk to you soon next week.

Liel: [00:33:34] Grace, thank you so much. Looking forward to our next conversation. You stay safe. You too.

Grace: [00:33:39] Bye bye. Liel.

Liel: [00:33:42] And if you like our show, make sure you subscribe. Tell your coworkers. Leave us a review and send us your questions at: ask@incamerapodcast.com. We’ll see you next week.

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