For most of the 20 years that I worked at a law firm, I defended pharmaceutical and medical device (and other) mass torts.
The things that you do professionally can create a bias: I did not like the plaintiffs’ bar. I never defended a lawsuit brought on behalf of a single individual, so I saw little of the good that plaintiffs’ lawyers do. But I saw many class actions and mass torts that seemed designed only to transfer money from pharmaceutical and medical device companies to plaintiffs’ lawyers. Whether a drug or device actually harmed anyone was beside the point; anyone who was actually hurt could file their own individual lawsuit. The class actions and mass torts picked up the stragglers, whose situations didn’t merit filing a case — people who overpaid for an allegedly dangerous drug (but hadn’t suffered physical injury) and wanted to recover the purchase price; people who hadn’t been hurt yet but might be hurt in the future; people who didn’t even know they had a claim, but the lawyer’s advertisement said they might be entitled to free money.
Do you see why you might develop a distaste for these shenanigans?
Many of my fellow mass tort defense lawyers were hardcore Republicans. Although generalities can be misleading, there was a widespread perception in the defense bar that Democrats appointed pro-regulatory folks to the FDA. Democratic regulatory appointees were extraordinarily tough on drug companies. Democrats also appointed many judges who didn’t like to grant summary judgment in cases in which thousands of people sued the manufacturer of some drug or device: “The evidence might be pretty thin, but thousands of people are claiming that the bubble gum causes brain cancer! Who am I to throw out those lawsuits?”
Mass tort defense lawyers just had to vote Republican. That was the only chance they had to win their cases!
Where do mass tort defense lawyers stand now?
Mass tort defense lawyers, as a group, are pretty well off financially: They’re partners at prestigious defense firms. These folks aren’t really motivated by the culture wars. Indeed, as I heard many years ago (long before Trump): “Mark, you should vote Republican. The Republicans just say that crap about guns and abortion to placate the lunatics. What really matters are the money issues — taxes and spending — and Republicans are much better than Democrats on those.”
Mass tort defense lawyers generally believed in free trade; these folks had gone to college when the benefits of free trade were the conventional wisdom. Trump has disappointed the free traders.
Mass tort defense lawyers believed in keeping the federal deficit under control. Trump has let them down.
Mass tort defense lawyers tend to be “law and order” types. They weren’t happy on January 6, 2021, when Trump unleashed his supporters on Congress, and they weren’t happy on January 20, 2025, when Trump granted a wholesale pardon to the rioters.
These lawyers don’t believe in a weaponized Department of Justice. They were outraged when federal and state Democratic administrations indicted Trump: “This happens only in Third World countries!” Those 34 felony convictions posed a little more trouble for my brethren — the indictments were phony, but how do you explain convictions? — but they nonetheless made excuses: “The trial was in New York City. I usually believe in the jury system, but this never should have happened.”
Now that Trump’s encouraging his Department of Justice to pursue Letitia James, John Bolton, Jim Comey, and others, all that’s left is cognitive dissonance. Maybe: “The Democrats did it. Trump’s mad. Fair is fair.”
But Tylenol, guys, Tylenol!
Well-established science suggests that Tylenol does not cause autism or ADHD. In the mass tort litigation involving Tylenol, the trial court threw out the plaintiffs’ claims, saying that the plaintiffs’ experts used unreliable methodologies and failed to prove a credible link between the use of Tylenol during pregnancy and the alleged harms.
Junk science, guys, junk science!
We’ve been beating that drum for decades, and now you have a judge who’s on your side!
The appellate argument on the trial court’s decision is scheduled for October 6.
And now, just weeks before oral argument, Trump and RFK Jr. choose to announce that, on the basis of the same old tired evidence, the FDA believes that taking Tylenol during pregnancy is dangerous.
Might now be the time to break your inherited allegiance to the Republican Party and move on to sanity?
Doesn’t Tylenol, at long last, give you a headache?
Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.
The post Does Tylenol Give Mass Tort Defense Lawyers A Headache? appeared first on Above the Law.
For most of the 20 years that I worked at a law firm, I defended pharmaceutical and medical device (and other) mass torts.
The things that you do professionally can create a bias: I did not like the plaintiffs’ bar. I never defended a lawsuit brought on behalf of a single individual, so I saw little of the good that plaintiffs’ lawyers do. But I saw many class actions and mass torts that seemed designed only to transfer money from pharmaceutical and medical device companies to plaintiffs’ lawyers. Whether a drug or device actually harmed anyone was beside the point; anyone who was actually hurt could file their own individual lawsuit. The class actions and mass torts picked up the stragglers, whose situations didn’t merit filing a case — people who overpaid for an allegedly dangerous drug (but hadn’t suffered physical injury) and wanted to recover the purchase price; people who hadn’t been hurt yet but might be hurt in the future; people who didn’t even know they had a claim, but the lawyer’s advertisement said they might be entitled to free money.
Do you see why you might develop a distaste for these shenanigans?
Many of my fellow mass tort defense lawyers were hardcore Republicans. Although generalities can be misleading, there was a widespread perception in the defense bar that Democrats appointed pro-regulatory folks to the FDA. Democratic regulatory appointees were extraordinarily tough on drug companies. Democrats also appointed many judges who didn’t like to grant summary judgment in cases in which thousands of people sued the manufacturer of some drug or device: “The evidence might be pretty thin, but thousands of people are claiming that the bubble gum causes brain cancer! Who am I to throw out those lawsuits?”
Mass tort defense lawyers just had to vote Republican. That was the only chance they had to win their cases!
Where do mass tort defense lawyers stand now?
Mass tort defense lawyers, as a group, are pretty well off financially: They’re partners at prestigious defense firms. These folks aren’t really motivated by the culture wars. Indeed, as I heard many years ago (long before Trump): “Mark, you should vote Republican. The Republicans just say that crap about guns and abortion to placate the lunatics. What really matters are the money issues — taxes and spending — and Republicans are much better than Democrats on those.”
Mass tort defense lawyers generally believed in free trade; these folks had gone to college when the benefits of free trade were the conventional wisdom. Trump has disappointed the free traders.
Mass tort defense lawyers believed in keeping the federal deficit under control. Trump has let them down.
Mass tort defense lawyers tend to be “law and order” types. They weren’t happy on January 6, 2021, when Trump unleashed his supporters on Congress, and they weren’t happy on January 20, 2025, when Trump granted a wholesale pardon to the rioters.
These lawyers don’t believe in a weaponized Department of Justice. They were outraged when federal and state Democratic administrations indicted Trump: “This happens only in Third World countries!” Those 34 felony convictions posed a little more trouble for my brethren — the indictments were phony, but how do you explain convictions? — but they nonetheless made excuses: “The trial was in New York City. I usually believe in the jury system, but this never should have happened.”
Now that Trump’s encouraging his Department of Justice to pursue Letitia James, John Bolton, Jim Comey, and others, all that’s left is cognitive dissonance. Maybe: “The Democrats did it. Trump’s mad. Fair is fair.”
But Tylenol, guys, Tylenol!
Well-established science suggests that Tylenol does not cause autism or ADHD. In the mass tort litigation involving Tylenol, the trial court threw out the plaintiffs’ claims, saying that the plaintiffs’ experts used unreliable methodologies and failed to prove a credible link between the use of Tylenol during pregnancy and the alleged harms.
Junk science, guys, junk science!
We’ve been beating that drum for decades, and now you have a judge who’s on your side!
The appellate argument on the trial court’s decision is scheduled for October 6.
And now, just weeks before oral argument, Trump and RFK Jr. choose to announce that, on the basis of the same old tired evidence, the FDA believes that taking Tylenol during pregnancy is dangerous.
Might now be the time to break your inherited allegiance to the Republican Party and move on to sanity?
Doesn’t Tylenol, at long last, give you a headache?
Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.
The post Does Tylenol Give Mass Tort Defense Lawyers A Headache? appeared first on Above the Law.
