EP 289 - David Matthews - Mastering Mass Torts and Winning High-Profile Cases

Unless you really truly understand the components of general and specificalisation. I think you're doing yourself and your client a disservice of getting into a litigation and to you really understand those those components, and you know that's just a starting point. You're listening to the Legal Mastermind podcast presented by Market My Market with your hosts Eric Bersano, Ryan Klein, and Chase Williams, the go to podcast for learning from the experts and the legal community about effective ways to grow and manage your law firm.

Hello and welcome to another episode of the Legal Mastermind podcast. Today I have with me attorney David Matthews, who is the firm founder of Matthews and Associates. David, Welcome to the podcast. Good morning Eric.

So if you wouldn't mind start out just with the brief history on yourself and how you got. To where you are today. Sure. So my name is David Matthews.

I used to be Dave Matthews, but someone started using that name, so I've went back to David. So it's not to be confused, although it does help with reservations at dinner and such. But yeah, I'm David Matthews. My firm is Matthews and Associates.

I come from a big family in small town Wisconsin, where I grew up in a farming community, if you will. I went to school at the University of Wisconsin and studied political science. I also studied Spanish and studied in Mexico for my last year college and didn't really think i'd be using a Spanish as much as I do now, so it's been a big help. But after college in Wisconsin, I packed up my four foot long Honda Civic with my clothes and I moved to Houston, Texas, where I worked bartending and with a plan to go to law school.

So I had to raise some money, which I did and ultimately applied to South Texas College of Law in Houston. At school kind of known for I would say, producing trial lawyers is what I pretty much always wanted to do. I wanted to I wanted to help people, I wanted to speak for them. And I became a lawyer from South Texas College of Law and I graduated in nineteen eighty eight and I have been in Houston ever since, and it's been It's been a great city, a great place to litigate.

I have an office in New York and California, but my main office is here in Houston, where we have over fifty people lawyers, doctor, nurses, medical staff, and legal staff. Where we look at cases and determine what cases we're going to take. And that's what I have been doing for a long time. I left a defense firm where I first started representing insurance companies in large corporations, but after a couple of years, I realized that was not for me and I wanted to be a lawyer representing people.

And I have been a plaintiffs lawyer as we can be called or are called, ever since nineteen ninety and that's been that's been my practice in Houston, Texas and across the country. I have a national practice. We represent people from across the country in the cases ranging from pharmaceutical, medical device and pharmaceutical cases to pesticide cases, two cases involving clergy abuse, but generally speaking, I only represent individuals against companies and entities for negligence and gross negligence.

Yeah, and I saw in your bio that you know you were involved in the Finn Fenn case, you know, way back when that was that one of the first big drug cases that you know, kind of set the tone for a lot of these pharmaceutical cases that are being handled today. I think that's right, you know, I think that is one of the very first cases that some people call mass tort. That's not a great name, but it is better adopted, if you will. And I think that one of the very first cases was the fen Fen case.

I would say just prior to that, I worked on the breast implant litigation and the injuries to women square norma autoimmune disorders injuries like that. But then following that case was the fen Fen litigation, which was the van fluoramine that caused the valveulopathy and significant heart and heart lung injuries. And that was one of the first cases that kind of took on the front of multiple plaintiffs and sometimes filed in one complaint or one petition in a state. So yeah, I think that's very true that that was one of the first.

So I'm interested for someone who's been doing it as long as you have to be involved in that. You know, probably a lot of trail blazing back then. Are things very similar today? Is the way that you you know, went through trial on that to what you're dealing with today or.

Has everything changed? I would say that there are some things that stayed the same, but a great many things have changed. You know. One one thing that has really changed is the MDL scenario and the involvement of the funds that have came in kind of in the forefront in the last I'm going to say, five six, seven years, wherein these financial institutions and funds that are produced to invest in litigation.

I think it has changed the complexity, and I think there's been some backlash because of it. That might be the difference. I think the similarities are. You know, when I started and I have tried to verdict at this point dozens of these cases, which is probably somewhat different then then most people that get into mass toward I think they get in with the idea of of accumulating or acquiring a big number of cases and then and then hoping to settle these cases somewhere down the line.

That's never been my intent, nor my my desire to be involved in that way. And so I think that you know, there's that's changed. There's there's many more case acquisition groups and maybe so few cases, so few law firms that that actually take the case from A to Z. That is, they take the case on, they get to know the point if they file the case, they work up the discovery on the case, and and then they they set the case for trial and they try the case.

So although those things still occur, there's just a great many more percentage wise lawyers that that are just kind of case acquisition groups. So, you know, my firm is still what I consider to be a trial firm. You know, we we do nothing more than any other case, regardless of it's mass tward or not. That is, understand the case, obtain, retain the experts that are necessary to show the causation that this particular drug or this particular medical device causes this type of injury generally and then specific to a particular client, that it caused the injury to that client.

And so you know, we we still file cases across the country, and currently I'm filing in Chicago and Saint Louis, Los Angeles, Oakland, Alameda County, Miami, Philadelphia, New York. Wherever we need to, we are able to and file cases and plan on trying those cases. The verdict and unless it makes sense and the defendant offers money to a client and a client and it's right for that client on a case by case basis, we make that decision, then. Yeah, I'd love to get your input, you know, for our audience who isn't as well versed in mass Towards.

About what I would say would be some of the warnings. I think, you know, Mass Towards has looked at sometimes as you know, easy money. They're going to invest a dollar and going to make ten back. And there's lots of firms out there that work in mass Towards and the and they and they're you know, they understand all the ins and outs of it.

But the way I see it is, I've talked with lawyers who invested a lot of marketing dollars into. Something a little too early and the facts of the case change. Or they get sold on doing all this marketing and grabbing all these cases and don't realize some of the downstream costs. You might have to borrow money.

Everybody thinks the case is going to settle in three years, and it's five or six years. So I'd love to hear your experience, you know, from someone who does it firsthand for a while, you know, maybe some warnings or advice to someone who's considering getting into the mass towards. Yeah, you make some good points, because it does seem to be an easy endeavor, and I think it's really just the opposite. I think that that people, you know, the lawyers that want to get into this field need to first understand you know, causation, and that is can I prove are you able to prove that a particular drug or particular device caused a particular injury?

And really there's two components of that. Of course, there's the the issue of general causation. Is a drug capable of causing a particular injury and that is in the general population, And so I think one needs to start there, and that requires what I consider to be a lot of homework. You must understand a study or in most cases multiple studies to see where the overall implication is or do you have the the relative risk needed, do you have the odds ratio needed to prove a particular injury?

So I think the warning start there. You know, have you done that the work yourself, have you understood it? Have you talked with an epidemiologist as an example, to determine if that injury could be caused by a particular drug or device or pesticide for that matter. So I think we start there, and secondly, we then talk with our client, a potential client, to see if that specific client had a specific injury caused by a particular drug or device or pesticide.

And that means that you have to understand the confounding factors within your plaintiff. That is, could it be another cause? And is there a doctor, is there an expert? Is there a scientist that can tell you that I have been able to exclude other causes and this particular product is a substantial contributing factor to that specific injury in that plaintiff.

So I think I think one has to start there. And unless you really truly understand the components of general and specific causation, I think you're doing yourself and and your client a disservice of getting into a litigation and to you to you really understand that those those components, and you know that's just a starting point, you know, then then then we talk about, you know, is that drug and as we often see, you know, drugs have a of shelf life, if you will, whether they're actually branded by the innovator or the manufacturer that invented that particular drug in a field, and after a time that drug will become generic.

And are your cases clients that took the generic version of that drug, Because if they are, you must understand the litany of cases involving generic drug liability and whether you can bring suit and find liability against the generic manufacturer. Because there's a case by the name of Mincing that we were working on litigation with regulin, which was some fifteen years ago, and the US Supreme Court came down with a determination that a generic manufacturer cannot be held liable for a defect in a warning the lack of warning to a particular patient, because they can't change the warning.

Warning has to be changed by the brand, manufacturer or the innovator of the drug. And therefore they got ah, they got a pass. The generics did so before investing the time and energy and money on cases, you've got to understand who that manufacturer is. And that seems simple and yet and it's really not.

It's something that takes some work, some legwork, some understanding, and some discussions with whether it's a warning expert, whether it's a toxicologist, whether it's a doctor, in the field of the of the area in which you're pursuing a case to see what they would need for a warning and what they had for a warning at the time. So there's another you know, kind of say cautionary tale as too. Not only can that particular drug, device or pass a psyche cause injury, but is it that's identifiable to a true brand or innovator manufacturer?

Now is one of the things that you have to also prove is that the manufacturer knew that their product could cause this, like for example, roundup lyso fate you know, linked to non Hodgkins lymphoma. Do you have to prove that they knew that it was linked to that or is it just good enough to say, hey, you use this product. We know it's linked to non Hodgkins lymphoma. We're telling you right now that we can tie that to you, and they're they're on the hook for that.

So if there's something new coming out, is that what an attorney really needs to also dig into. Well, I think that what we ultimately have to prove is a company new or should have known of a particular defect, of a particular danger propensity of a drug or device or pesticide. And you know, I'm going to say this, Eric, you know, nine times out of ten we will find that they actually did know. We might not know in the beginning, but you know, I think with diligent discovery, whether it be written discovery, requests for admissions, requests for production, interrogatories, or actual depositions themselves, nine times out of ten we're going to be able to show a jury in And this is really what you know upsets juris is not only should they have known, but you know, the documents just substantially reflect that they did know.

So it's it's a it's a tough one, you know what the sciences of course, the changes over time, and there are cases that there was there was a company that could not have known of a particular would I say defect that could be a marketing defect that is that they didn't want about an injury that could be caused by it, but there was no way to know. That is a that's a rare that's a very rare circumstance. Yeah, and I think you're right, you know, when I saw some of this information myself, you know, one being like talcum powder.

Another one that I think most people would would know would be like the Ford roller rollover cases and then the Firestone tires that that when the information came out that they knew it, they just were going to bake it into their sales numbers. Like you mentioned, the juries. Get so upset about that, And I. Don't think the general public understands that these companies are just making a financial decision and saying, Okay, it's going to be too expensive for us to go back and change the production for this medical device or this vehicle or this pharmaceutical.

We'll just run with it and see what happens. Well, I think that's that's true to a large extent. At that point in time. You know, these companies have spent tens of millions of dollars in a particular pivotal clinical trial or R and D or the marketing of their prepared to market a mass market if you will.

You know, I think about YOS. You know, when YOS came out, they had three thousand plus sales reps that were already trained prior to the the the FDA granting the approval of box and lo and behold. It was a monster seller, and it was a two billion, three billion a year drug that they really didn't adequately research, but they did know that there was a clotting issue associated with it, but they just, you know, from the evidence that we saw, just ignored it and pushed on and not just not just slowly approached the marketplace, but but flooded the marketplace with you know, sales reps in every doctor's office, in every internal medicine doctor, every treater with these cocks two inhibitors that that you know, were this going to be this great pain reliever for people with arthritis or rheumatoid arthritis.

That that turned out to be a disaster, and of course the drug was removed from the market. But you know, it's sad that this is becoming that this is much more the norm than the exception, and that is the mass marketing of drugs and devices without adequate work up. And you know, and the fact that what they give the FDA or don't give the FDA is often the difference to whether a drug is approved or not. Yeah, speaking of marketing, I'd like to kind of shift gears to more of the marketing on the legal side.

For these cases. You know, one of the biggest changes I've seen over the last fifteen years is just the way that. These cases can be obtained. And I would personally warrant anybody who's looking to get into these cases who doesn't have a lot of experience, you know, be careful what you hear from the marketers because they make all their money up front.

Whatever you get might be worth a lot, it might be worth nothing. Do you have any advice when it comes to, you know, marketing for these cases. You'd already talked about, you know, doing your research and making sure that you do your homework before you jump in. But as far as you know, if there's a firm out there that wants to get ozempic cases or something else that's that's going on these days, how to go about vetting those marketing firms.

So I would start by saying, yeah, I agree with you. There's been a tremendous shift, if you will, and just by volume. I think part of this involved the Camp Lijune litigation which I am involved in, which was the water contamination case in North Carolina which Camp was June was the marine camp that housed both marines and families, and the federal government. A bill was passed some two years ago in August that they were going to compensate victims.

There was a studied on that showed equipoise or a likelihood that the water contamination causes a number of injuries, including over ten different cancers, Parkinson's disease, and some birth effects. So this was in a document and this came out and you know, by and large, you know, any lawyer that does any of this type of work, or maybe wasn't even doing this type of work, thought this was the greatest case ever. And because of that, there was an onslaught of ads that hit the airwaves.

I think it was really unprecedented that over a billion dollars was spent in advertisements across the country. Because of the speed by which people were trying to acquire these cases and the number of vendors marketers that were involved, there was a tremendous amount of fraud. It came in every way, shape or form that these cases were acquired by groups that either were not qualified to take in acquire cases because they couldn't understand if one was real or not, or there was active fraud by the marketers.

And I'm not you know, claiming particular one was or wasn't, but it happened to be an awful, awful a bunch of fraud across the board in campus that has carried on just throughout now in the last I would say, you know, three or four years, five years starting just before that, but that really culminated. I think in the numbers, you know, how do you prevent how do you with these these groups that acquire cases, how you work with them to make sure you've got real cases as opposed to a fraud plaintiff.

And I think that there's no perfect way. I think that that I've learned personally is I need to be more hands on. I need to take those first leads to immediately talk to every single one of those clients, either you or a lawyer in your firm needs to be hands on with that. Make sure that they understand that you know that you are their lawyer, make sure that they are a real plaintiff with a real injury, and immediately order medical records to see if you know you we all need, you know, two things in these cases, it doesn't really change.

You need proof of exposure or proof of use and proof of injury. And those are two distinct, distinct areas that you you must produce evidence to bring a case or ultimately to try a case, ultimately to prevail. So you know that means that means expedited medical record review. You know, talk with clients, get those first records and look at them.

See does this is this really a Parkinson's disease? Is this really uh you know, kidney cancer? Uh? Is this?

You know I'm looking at these right now, specifically, I'm looking at deppel Bavera case. Deppel Bavera was a uh was a drug injectible of birth control of injection used since the nineties, has been around a long time and some time ago, not that long ago. A study from France from using the Socialized Medicine France French database showed a huge increased risk for Deppe of Bavaria use in meningeoma or brain tumors in women. A really big case, really difficult case to prove specific and general causation, but also generic issues.

But that said, uh, big injuries, big case A Vizor manufacturer Engineeric at two thousand and five. You know, we immediately are all over these medical records if we can find them. You know, when you have an older case, you also have another issue with you know, obtaining medical records, because we know that that often hospitals, doctors' offices destroy records after ten years, sometimes last. So now you have the added obstacle of approving your injury with without medical records.

Pretty tough to do. That said, I think that's what one needs to do. You need to be vigilant. You just you cannot allow a company to tell you know, here's here's one hundred cases and good luck to you, you know, and then this just keeps going on without what I would say, at daily checks and balances of determining proof of use, proof of injury.

So I would start there. Yeah, I think you need to do just as much due diligence into who you're marketing with as you do into whether you want to work in the case, there's two ends of the spectrum as I see it, there's innocent ones, meaning a lot of times a person sees these ads, they're promised thousands, if not millions of dollars, and they call a couple of the phone numbers and they say, do you have kidney cancer? No? Do you have kidney cancer no?

The third time they say yes, you know, because they feel like, well, I'm injured, but maybe I don't have the exact injury that's going to get paid, so they slip through the cracks. And then on the other side of it, if you're doing due diligence and to talking to a marketing company, make sure that the company that you're working with is actually doing the marketing. I know that sounds more than obvious, but I know in Camp Lejune what was happening is there was so much money going around.

These marketing companies didn't want to say no to anybody who had a budget, so they would go out and look for other people to help bring in these cases. That means that the attorney is ultimately responsible from where that case came from. But if they hired marketing company A, and marketing company B was hired by marketing company A and was doing something nefarious, meaning ignoring TCPA violations or doing something to bring these cases in that wasn't above board, the attorney was.

Ultimately on the hook for that. So do your due diligence. A lot of these firms that I see are spending lots of money on this. It's worth the extra time to make.

Sure that you're working with somebody who's complying with all the advertising laws. I completely agree, Eric, And I'll say this. You know, I've been doing this a long time, and I've worked with groups that I know personally and I know that they're actually getting the cases. But if there is a new group I want to work with, I will get them on a zoom call and I will say, listen, are you getting the cases?

Look at me in the eyes and tell me are you getting these cases or not? Are you getting from vendor at BC and D. And then I'll go visit them. If they're in Chicago, I will go to Chicago and I will sit down with them.

If they're in San Diego, I will go to Sandia. Let's say, show me your operations, so you know how many people you have answering phone calls, what are your checks and balances? You know, what do you have in mind to prevent fraud? And how are you doing it?

And I think it takes that extra step, especially now. Maybe didn't ten years ago, but it does now, and so I think it's it's crucial that you take the time to do it right. Yeah, I think over the last I was saying ten to fifteen years, there's so many positives that are happening, meaning there's more specialized services. You've got someone who can just do your intake, You've got someone who can market you for social media.

You've got TV and broadcaret paths and streaming audio or streaming video, all of these different options that I think are helping to make the industry overall more efficient, because I don't think this existed fifteen years ago, where you had all these specialized companies that focus on one link in the chain for this client acquisition. But like in the industry where there's a lot of money going around, you have some bad actors, or you just intentionally or you just have people that aren't as good as others that want to join in the game.

So any any last things you would say on you know, marketing and the mass towards to someone who's kind of considering going in that way, because I see every year at these conferences there are successful PI attorneys that go, I've been hearing about this mass toward thing for a while now, and I want to jump in. Any last things you would say to that person. Yeah, I think the points that we've talked about are crucial. They're very important.

I would say this I would designate a maybe you call them whatever you want to call them. I call them a compliance data person. But somebody that is that's their job to make sure internally we have a two really crack pot you know, data managers here that I really rely on. Guys.

I can't do that. I mean, I have oversight when I talk to clients, But in terms of the data, the intake the medical reviews, make sure that that they they comport, make sure that they work that this isn't you know, if you see a red flag, it's probably meaningful, you know, respond to it and don't just say, well, I'm sure it was just you know, I'm sure it was just to aberration. You know, No, it's probably a real problem. And so I would you know, designate someone that is, uh that that's their duty to you know, look for that that fraud and make sure that you're getting real cases from you know, real clients.

Yeah. The other thing you said that I think can't be overstressed would be creating that relationship in the beginning. And I think you'll probably saw this in Campbella June. There were so many people who were signed up with multiple law firms because they get signed up by law firm A.

Law firm A sign them up, didn't communicate well with them. They might have reached out law firm AY several timesn't hear back, and they're like, I don't know if I'm really covered in this, and they'll sign up with law firm B. So you had lots of these dual reps that one person was signed up with two or three different law firms. If you can create that relationship in the beginning and they know that you're working with them and communicate.

How that process works and what timelines are, otherwise this person might just see another ad and say, I'm going to go sign up with somebody else because I don't know that my attorney's working for me. Yeah. Absolutely, and I think everything you just said is right on, and I think that you know, I'd like to think that we're going to get better, that there won't be any fraud and it'll but but frankly, there is just too there's too much money at play here with these with the marketing groups.

But I would also stress that you know, get to know the groups that you're working with, really really know personal as opposed to you know, a phone call here there or a discussion about how many cases you think you want and how much per case there is. I just think that's such a that's nothing more than a starting point, and you really need to get to know people. Well, David, I really appreciate you sharing your knowledge and experience with the audience. Is there anything that you wanted to cover at the end here, or at least let people know how to get a hold of you if they've got questions someone with your experience.

I'm sure there was a lot of attorneys that would like to pick your brain. Yeah. Sure, Well, I mean I'd welcome discussion if someone wants to discuss the process. Yeah.

I have been doing this probably as long as anyone has been doing mass towart at this point. I guess you know, I was there in the in the nineties and the you know, mid nineties, and I've been there in this space since. I'm happy to discuss. Eric, if someone please feel free to let them know my TechEd info.

Absolutely, we'll put in the show notes. Thanks again, David, appreciate your time. Thanks Eric, Thanks for listening to the Legal Mastermind podcast presented by Market My Market. If you can check out additional episodes and recaps at Legalmastermind podcast dot com.