EP 610- Baby Formula Victory with Jake Plattenberger

Episode Notes

Transcript

Announcer (00:01)
Welcome to The Jury is Out, a podcast for trial attorneys who want to sharpen their skills and better serve their clients. Your co-hosts are John Simon, founder of the Simon Law Firm, Tim Cronin, personal injury trial attorney at the Simon Law Firm, and St. Louis attorney, Erich Vieth.

Tim Cronin (00:21)
Welcome to another episode of The Jury is Out. This is Tim Cronin. John and Erich are not here, but we are back with Jake Plattenberger to continue our discussion with him. Welcome back, Jake, and let’s get to it. So groundbreaking verdict that you guys got. We’ve talked a little bit about these premature formula cases on this podcast before and their relationship to a disease called necrotizing enterocolitis. Jake, can you remind everybody what neck? It’s called neck for short, but it’s basically

Jake Plattenberger (00:51)
Yeah, it’s basically the death of the tissue in the gut of the baby.

Tim Cronin (00:55)
And it happens almost exclusively to preemies and like lower birth weight preemies. right. So Jake tried the second of these cases in the country. The first was tried in state court in Illinois and it was just against me Johnson. There’s really two manufacturers in the premature formula space. And we’re just talking about formula in the NICU for preemie babies, not like the stuff on the shelves, not even stuff for term babies in the hospital.

That was a victory for the plaintiffs against me. Jake tried the first one against Abbott, which is has like two thirds or three quarters of the market. It was a monster of a three week trial, a lot at stake. Can you tell us a little bit about your client? This is all your stories are sad, Happy endings in the trial.

Jake Plattenberger (01:42)
That’s

business. as you know, sometimes our wives or our kids are like, man, how do you? Yeah, especially with from my work the last couple of years, along with you, has been mostly babies and small kids. So it’s so sad. But this child survived. Her mother is

Tim Cronin (01:51)
Like, don’t tell me about-

when it’s

Jake Plattenberger (02:11)
one of my favorite all-time clients. I absolutely fell in love with this woman. She is just so positive, which is so positive through the whole thing and continues to be positive today. And she is now raising a child that has profound and extensive health issues and special needs.

Tim Cronin (02:30)
80 % of her bowel was removed. Luckily, she’s lucky to survive.

Jake Plattenberger (02:34)
Yeah, it’s kind of miraculous that she survived. So she lost 80 % of her bowel. And once that happens, there’s no putting it back. So she will live her life that way. And it causes a lot of issues when you lose your ability to absorb and digest nutrients at a young age. It sets you on a path for your life of malnutrition and abnormal growth and severe brain injury, which she also has.

Tim Cronin (02:59)
And there’s a lot of literature that talks about when a child gets NEC, it can lead to severe neuro… mean, whether it’s the inflammatory process while it’s happening or… Yeah.

Jake Plattenberger (03:08)
It’s not

controversial. So neck causes brain injury.

Tim Cronin (03:12)
This little girl had what’s called shortcut syndrome from almost all of her bowel being removed. It’s terrible. She probably can never eat food ever. And then on top of it had like profound cerebral palsy and is never gonna walk.

Jake Plattenberger (03:20)
She won’t eat normal food.

quadriplegic spastic cerebral palsy.

Tim Cronin (03:29)
So they, they, they, mean, they didn’t, watched a lot of it. They smartly didn’t attack the extent of the injuries. And of course this is absolutely terrible and tragic.

Jake Plattenberger (03:40)
They did no kind of IME. They didn’t contest our live.

Tim Cronin (03:43)
test your life care plan, like nothing. But they went after causation and really primarily kind of invented an alternative cause that wasn’t in the medical records, right? Like they said she was missing her thalamus, if I recall correctly, and then no doctor had ever, and then no doctor had ever caught it at like a renowned children’s hospital.

Jake Plattenberger (03:55)
Yeah, pretty much.

Right.

This child had had, I added them up and it was one of my demonstrators. It was like 37 brain scans or something. I can’t remember the number, but yes, part of the defense position was 70 % of the child’s thalamus was gone and she had no one had picked up on that.

Tim Cronin (04:25)
Yeah, and she had this profound hypoxic ischemic brain injury before she was born. And that’s just like, she was never diagnosed with that.

Jake Plattenberger (04:33)
Yes, they put multiple medical issues and conditions on this child that were not in the medical records and that no treater. this was a kid, as all kids in the NICU are, that are being watched closely by teams of physicians and specialists and nurses. And according to Abbott, just all of these people just missed all of these things.

Tim Cronin (04:55)
And well, I think they wanted to make the case about something different than what we want to talk about in these cases. And so I remember after watching openings, you and I talked and I was like, dude, they put all their eggs in that basket. They did. And half the trial became about that alternative cause defense. And I thought I watched you masterfully turn it against them. So like that became your biggest weapon. this is they’re willing to make something like this up. Yes.

because they so desperately need you to not focus on this stuff. And I don’t know if I’ve talked about this. Can you kind of walk the jury through their like go to market strap, how the preterm formula and why it’s so important to them and what they have done with it as a result to drive later?

Jake Plattenberger (05:42)
Yeah,

yeah. So, you know, if you’re selling a product that is intended for newborns, a pretty good place to hang out would be the hospital, because that’s where most of the babies are born. We learned that the NICU, for variety of reasons, you know, that unit of the hospital makes the decision on which brand of formula the entire hospital is going to use, not just the NICU.

Tim Cronin (06:07)
Their

documents say target the NICU or win the NICU win the hospital.

Jake Plattenberger (06:11)
win the NICU, win the hospital, own the NICU, own the hospitals are phrases that come out of their marketing documents. Yeah. Own the babies first bottle fed. They Abbott and Mead aggressively target NICUs in the United States because they want exclusive contracts at the hospital. So what they’ll, what the manufacturers will do is they’ll say, okay, hospital, we’ll give you all of our NICU products for free.

Tim Cronin (06:16)
Babies.

Give them the formula for free.

Jake Plattenberger (06:38)
We’ll give it to you for free. You sign an exclusive contract with us, meaning that all of the formula in the hospital for term babies and preterm babies will be R. Yeah, 95%, whatever the compliance rate is, because they know that 78 to 83 % of the time, if a parent walks out of the hospital with Abbott formula in their bag, they’re going to continue on Abbott formula when they start going.

Tim Cronin (06:48)
or 90 % of it.

They

go to Target and Walmart and the grocery store.

Jake Plattenberger (07:08)
So

it’s worth, know, it’s their entire go-to-market strategy starts with preterm infant formulas. So financially, it’s crucial to the business model.

Tim Cronin (07:19)
And then they come in and they say, we lose money on this. don’t even, well, no, you’re driving billions of dollars in later sales. This is what’s called a loss leader because you know, if you’re not in the NICU and your competitors in the NICU, you’re losing all the retail sales later.

Jake Plattenberger (07:30)
That’s right.

That’s right. That’s right. And it’s even more important to Abbott because they, Mead actually does much better at retail than Abbott does. If you take the hospital out of it, Mead beats Abbott in Target and Walmart. So Abbott needs the hospital more than Mead, but they both absolutely rely on it.

Tim Cronin (07:58)
And then there have been, there’s been study after study starting back in like 1991 was the first one that talks about this massive increased risk of these preemie babies getting neck when they’re formula fed as opposed to just breast milk fed. And guess what doesn’t get given to NICUs for free donor breast milk, because moms of these preemies almost more often than not can’t produce enough. Cause the baby’s born early. They’re not, you know, their bodies aren’t ready to produce enough milk.

So they take advantage of that, give the formula for free and they don’t want to talk about that. So they want to invent alternative causes for our clients, which is the same thing that happened in my case.

Jake Plattenberger (08:32)
and get accustomed.

Right.

And I was actually, maybe I was a little naive because I hadn’t done many cases involving baby. I mean, who has, who’s done toxic torts involving kids, right? Not many. Normally we have somebody who’s in their fifties who has cancer or something, right? So they have, they have five decades of medical records that the defense can play with and come up with all cause and you know, okay, fair enough. In this case,

Tim Cronin (08:51)
very many of them.

Jake Plattenberger (09:07)
in the lead up to it, I was like thinking, well, at least I’m not going to have to deal with all this crazy old cost stuff because the child has only been alive for two weeks and what in the hell can you come up with in two weeks? How stupid and naive of me.

Tim Cronin (09:19)
Jake, remember like a month before your trial, you guys were a little bit ahead of us. We used a lot of the same experts. Your experts got deposed. I got the benefit of them reading those transcripts and then you guys were deposing their experts and we had some of the same ones in our case. And by the time you were in the defense experts and passed it in the month before your trial, I was in the middle of all the experts and I was like, man, the fight they’re gonna have in these cases is a specific cause. And I remember you said,

Well, I mean, not in my case, she got six bottles of formula and then got NAC. Yeah, I didn’t know anything about your case. But then you called me like four days before your trial started as you were going through one of the like who ended up being the key defense expert. And they were like, their whole defense is going to be all. So you figured it. mean, you did it.

Jake Plattenberger (10:06)
Yeah,

I mean, you the story of that is because these huge cases is, know, you and I were at a lot of depositions. Yeah. But you can’t be at all of them. No. And I was not at Terry Ender’s deposition.

Tim Cronin (10:16)
I didn’t

take her deposition in our case either. Right. But after what happened when you crossed her in your case, she got withdrawn and didn’t come to my trial.

Jake Plattenberger (10:25)
I know, and I’m sorry about that. I know you very much would like to have crossed her. But when I first got into town and I came into town, I think it was like two and a half weeks before the pre-trial to get ensconced in my condo here and just really tune everything else out. I started with reading all of the defense stuff, right? Cause I’m like, okay, where am I weak? Where am I going to get beat? Let me start with the experts. And I started reading

very closely these expert depositions. that’s when I call, I was like, my God, I mean, they’ve come up with this hypoxic ischemic encephalopathy.

Tim Cronin (11:01)
The radiologist missed this stuff on the imaging and she said, I’m a child neurologist and a radiologist and a neonatologist. I’m uniquely qualified to talk about all these things.

Jake Plattenberger (11:13)
And I was like, this, that’s their whole defense. was, it was, is that this kid had an hypoxic ischemic event in utero, which caused the brain injury and which caused neck because it restricted the blood flow to the gut. And then the dominoes started to fall from there. ⁓ So yes, I was naive. And that’s, that’s what they did. They made the whole case about that alt cause.

Tim Cronin (11:23)
And that’s why she got neck

Well, you were ready for it by the time you started. Yeah, yeah, we were. And then what what you did in response is you guys brought in the doctors from the local hospital and said, look, they’re saying you missed this. That’s right. What do you think? That’s right. No, we didn’t. Yeah, we did not miss it.

Jake Plattenberger (11:54)
the hospital when they learned that that’s what was being said.

Tim Cronin (11:59)
Talk

it on the hospital’s back if you lose this try.

Jake Plattenberger (12:02)
Yeah, I mean, so the hospital came in and said, no, we didn’t miss this. Like these children are screened for this. mean, there were there are people watching for this and there she’s being attended to by pediatric neurologists and it just. It just didn’t happen and there was no evidence that it well, I shouldn’t say no evidence, but not much evidence that it could have even possibly occurred. But, you know, they were good at taking the few little things that

Tim Cronin (12:16)
team of 30 people.

Jake Plattenberger (12:31)
could look like that and blowing them up and making them these huge deals.

Tim Cronin (12:37)
And you were as we have to be. Look, if we lose credibility when we’re the ones asking for money, we’re And you were very upfront with those doctors, with their experts, and in closing, that there were some brain injuries that preexisted. And you went through the list of the things the other side talked about, and you went, this is made up, this is made up, this one’s true. This is made up, this is made up, this one’s true.

So these things have some contribution to this child and with cerebral palsy, but like nothing like what she has now. And the standard is contributed to cause and the jury, it seems obviously like they appreciated like, well, this guy’s telling us the truth and acknowledging the stuff.

Jake Plattenberger (13:23)
Yeah, mean, as you know, you have to be 100 % honest with the jury and the child that look preterm babies have complicated medical courses. So yeah, there were things there that were very real and we owned that. And as you said, we just said, yeah, look, she had these two things, these other six things she just didn’t have.

Tim Cronin (13:34)
by definition.

And one of the ways we’ve turned that, I mean, they’re weaponizing their prematurity against them. Right. And so the response you made and that we’re making in these cases is, look, that is the exact population that they’re targeting and they know they’re making this for you then can’t take their vulnerability and weaponize it against.

Jake Plattenberger (14:05)
Yeah,

mean, that was a point that I was very adamant about making, which is, look, you’re making this product for one type of person. That’s a premature human being. It cannot be used by anyone else. So you take that into account. And it’s even more important because these babies are fragile and have complicated medical courses. It’s even more important to tell the truth and disclose everything. Right.

So yeah, we tried to do a little jujitsu with that. I think that’s easy for people to understand, right? Like, you’re making this product for Primi babies, so don’t come in here and say, well, they’re all premature. Of course they’re going to have problems.

Tim Cronin (14:46)
Yeah, like they’re gonna have problems.

well, you know, 90 % of the babies that get neck were on formula. They really do not like that statistic.

Jake Plattenberger (14:56)
No, there’s great, strong literature and strong internal documents that this is a problem.

Tim Cronin (15:04)
there’s a, but there’s also a couple studies that we have to deal with that are on the other side. They have major problems with them.

Jake Plattenberger (15:12)
mean, look,

you know, any kind of complex toxic tort case causations, general causation is going to be tough.

Tim Cronin (15:19)
There’s a lot of literature and doctors who say we don’t know what causes that. That’s right. It’s like, well, we do know a little bit, maybe not all about the why or the how. We do know a little bit about the why.

Jake Plattenberger (15:31)
What?

Yeah. And, you know, we told the jury, listen, from a public health standpoint, right, like, let’s get a little reality and perspective back into this. you know, you don’t there are questions that need to be answered. I will agree with that. Right. There’s more research and science that should be done as in almost everything. But from a public health standpoint, you tell people what you know when you know it. You don’t wait. So that’s what I told the jury.

Tim Cronin (16:00)
One of the things you one of the stories you told to hammer home that point Jake and I thought it was brilliant and I directly stole it ⁓ was the water pump story. Yeah, what’s the water pump story?

Jake Plattenberger (16:11)
I love this story and I learned this story from an expert in a case I had at the very beginning of my career. And the water pump story is the cholera story and really the story of Dr. John Snow for any of you Game of Thrones fans out there.

Tim Cronin (16:29)
Did you watch that play out in my trial? When I asked the defense expert, like, you know who John Snow is? And she went, well, I haven’t watched Game of Thrones. really? And the whole jury laughed at me. I didn’t know that. And I was like, no, I mean.

Jake Plattenberger (16:42)
So in like, what is it, the 18, is it 18 something? I forget the date. Yeah, so London is in the middle of a cholera epidemic. People are dying, children are dying. And one young bright doctor had the thought of getting out a map and seeing if there was any kind of pattern that he could discern about where these people were living and dying. And what he learned was,

Tim Cronin (16:47)
But anyway…

Jake Plattenberger (17:10)
Most people, the highest concentration of deaths was around the town water pump. And he said, well, we don’t know if the water is spreading the cholera, but how about we just take the handle? We don’t know why we don’t know how we don’t know mechanism, but let’s just literally take the handle off the water pump. So they did. He pitched this idea to, you know, the town council. They walked down there. They took the handle off the water pump and the

Tim Cronin (17:23)
We don’t know why.

Jake Plattenberger (17:39)
spread of cholera stopped. They concluded rightly that must be something in the water. Yeah. So let’s stop with the water. And I said that is and actually this pump, water pump still exists as a landmark. It’s been preserved. In London, you can go and visit it and there’s photos of it. And I showed the photo in my opening and I told this story and I said, this is how public health works. was another 50, 60 years before anybody figured out the mechanism of cholera and how it works.

Tim Cronin (17:53)
Yes. a famous public health.

Jake Plattenberger (18:08)
But what they did first was they took the handle off the water pump and they told people about the water. And that’s what should happen here.

Tim Cronin (18:15)
You don’t have to know exactly why something is happening to know they’re related and stop.

Jake Plattenberger (18:20)
That’s right. From a public health standpoint, you warn when you know as much as I mean, I think that we’ve passed that point a while ago with formula in my opinion, but.

Tim Cronin (18:31)
I there’s some things we obviously think there’s some things we know are contributing to why it’s increasing this risk of neck, but we don’t have to prove that. No. And yet it comes in and you know, we want to get with it trying to say you have to prove mechanism. You can’t prove how that formula causes neck or how. And so we give them some things we’ve did. We won’t get into the weeds of some things in formula or lacking in formula that there are some studies showing. Nah, we think this is

Jake Plattenberger (18:44)
beats us over the head.

Tim Cronin (19:00)
probably a part of it, but we don’t have to prove it and we don’t have to know it for you to be doing something.

Jake Plattenberger (19:06)
That’s right. And what we tell the juries and I know you told them this too, is like, listen, I’ll be honest with you. Like, I don’t know. I’ll tell you what they think it is. I’ll tell you what Abbott thinks it is, but I don’t know and I don’t have to know. And neither do you, by the way, the jury, for Abbott to put a warning on this product.

Tim Cronin (19:26)
What are some other couple highlights or favorite or least favorite parts of that trial, Jake, if you can recall?

Jake Plattenberger (19:34)
I mean, sitting through the direct exams of Dr. Martin and Dr. Ender was like torture because

Tim Cronin (19:41)
They had like

300 slide PowerPoints that had never been disclosed.

Jake Plattenberger (19:45)
So the night before they were going on the stand, we would get a PowerPoint. One of them was 120 slides. The other one was like 137 slides. And I’m just looking at this thing and this is a big, and these are well credentialed. These are serious experts. yeah. One of them is the head of neonatology at Cornell. The other one is this.

Tim Cronin (20:01)
They’ve published on Net-on-

Jake Plattenberger (20:09)
what she told us triple board certified, you know, head at Orange County Hospital. So these are serious.

Tim Cronin (20:15)
Now, one of them had published somewhere that formula is necessary for the development of neck. Yes. I just tried to walk that back, but they did six and a half hour directs or something of each of these experts.

Jake Plattenberger (20:26)
I think it was longer. Yeah, it was longer than that. It was like a full day. It was like a full eight hour day.

Tim Cronin (20:30)
And made sure it took up so much time that you didn’t have time to cross. And then they’re like, well, she has to go. She has to leave and go back. And the judge is like, no, she’s coming back next week. Not happening. But the jury sat on it for a whole weekend, hearing that direct and all those slides, which were compelling.

Jake Plattenberger (20:39)
I can’t come back.

So yes, they did. But look, I think that was a mistake. If they had four hours, I had a night to get ready. And if I didn’t have that night to get ready, we may be having a very different conversation. Because if they had done four hours and I had to start after lunch, because we would get these PowerPoints the night before and we had people, like four or five people that didn’t sleep.

Tim Cronin (20:59)
You had time to then go through

Jake Plattenberger (21:20)
They literally did not sleep because they were poor and these were slides containing information from studies and papers that nobody. Yeah, and I mean dozens and dozens of citations.

Tim Cronin (21:28)
It’s hard.

So much literature on the exhibit list in these cases that you and I, like, we couldn’t possibly have read a tenth of it.

Jake Plattenberger (21:37)
No, you

can’t. so we had people staying up literally all night. So sitting through the direct was hard because it was good. Like these are good lawyers and these are good experts. And the PowerPoint looked like it was done by Steven Spielberg and Martin Scorsese. mean, it

Tim Cronin (21:52)
me while it was going on saying I think I might have just lost.

Jake Plattenberger (21:55)
I thought I lost it with Cammie Martin. I thought during the direct of Cammie Martin that we had probably lost because she was great. So that was painful, but I knew what was going to happen next, which is I knew that I was going to get up and do the cross and I knew that my team had armed me with the right stuff. So probably if I had to pick one, it would be the cross examination of Terry Ender. That was the most fun and my favorite. Martin was a lot of fun too.

Tim Cronin (22:22)
I

mean, you got to point out she said she’s a board certified child neurologist. And in fact, that’s not her whole career. We don’t need to get too much into it.

Jake Plattenberger (22:33)
Look,

it was public. It was public. So she was playing fast and loose with her credentials. And that was the very first thing I did was I stood up and I said, maybe you can help me figure this out because seems to be a problem with your credentials and all the like.

Tim Cronin (22:49)
You’re saying all these neurologists at the hospital are wrong. Right. You’re a board certified, not just neonatologist, but neurologist. ⁓

Jake Plattenberger (22:58)
and like radio.

yeah. And that was fun. And listen, you know this, Tim, like I’m a big fan of.

Tim Cronin (23:05)
This part is why they didn’t bring her to my trial. I think she refused to come.

Jake Plattenberger (23:09)
I

totally agree. My strategy with experts is to first put them on their back foot. Yeah. You know, stand up, go after their credibility, but you also can’t be afraid. I think it’s a mistake to avoid the science with the experts. I’ve heard some people say like, don’t argue with the experts about their expert opinions. disagree. Yeah. That’s right. Because if you seem like you’re ignoring it, then the jury thinks, well, they must be right.

Tim Cronin (23:29)
trying to learn it as well.

Jake Plattenberger (23:35)
Plaintiffs don’t have any kind of response to that. So my favorite part was, I don’t know, but then there was also the cross-examination of the corporate representative. That was a lot of fun. Yeah, got to do. Yeah, she was fun. But whole thing was fun. I it was so much stress and terrible, but it was.

Tim Cronin (23:46)
hurt.

What Dr. Inder did was say the neck happened because of the brain injury and the brain injury has nothing to do with the neck anyway. And you found an article I think by Dr. Neu, right? That said like hypoxia doesn’t cause neck.

Jake Plattenberger (24:07)
Correct. Hypoxia does not cause what they call classic n-

Tim Cronin (24:11)
And

he’s, mean, he’s one of the most published neck.

Jake Plattenberger (24:14)
Yeah, and an avid paid expert.

Tim Cronin (24:16)
Yeah, he was in my case. They withdrew him from my case right before my trial. So you me a lot of favors.

Jake Plattenberger (24:22)
We

were able to get their main specific cause expert to say, okay, the jury can ignore everything I’ve said. If the jury thinks that this baby has classic neck, they can ignore everything I’ve said because you’re right. The hypoxia wouldn’t have caused that. I was like, well, I don’t know how we’re going to do any better than that. I mean, that, and that was kind of the end of her cross.

Tim Cronin (24:42)
And then I remember with habits corporate rep, you one of your themes going in, which worked out was your good science needs to be the same as your bad science. Yes. And explain that a little bit about how they tout.

Jake Plattenberger (24:54)
Yeah, they put benefits on the bottle, right? And we’re saying, look, you should put the warning on the bottle. And they’re like, well, we can’t put the warning on the bottle. And I’m like, but you put this good stuff on the bottle, supports brain health and supports eye health. Right. So I started this section of the cross and I said, I’m sure you would agree with me that, you you need science to make these benefits claims. yes, yes, yes, yes, we need science. And you would need science to make any kind of it.

Tim Cronin (25:08)
science behind that.

Jake Plattenberger (25:22)
risk claims. yes, yes, yes. We need science. And those two things should be equal. Equal the quality of science. yes, absolutely. Science is science. And I said, OK, now look at the science you have for this eye health bullshit. Yeah. And and we and it was such a joke. And I went through it and there’s one.

Tim Cronin (25:26)
quality of the science for the

Look at

article and it does it’s like, draw no conclusions. ⁓

Jake Plattenberger (25:50)
I like, so that’s it, that’s on the bottle. And she was like, yes. And I’m like, now let’s talk about the science that you have, that we all have about this increased risk of neck. It dwarfs the science that you guys have for these benefits.

Tim Cronin (26:03)
All

these randomized controlled trials, we meta-analysis, all of them say 2 to 10 times risk, but that’s not good enough. No warning.

Jake Plattenberger (26:10)
I thought that that was powerful. It was. The science for the good should equal the science for the bad.

Tim Cronin (26:15)
And

you got a surprise from her that you didn’t know you’d get or she’d say coming in the Abbott corporate rep when in her depot she was denying that there’s a that there’s an increased risk. And you didn’t know you’re confronting her with the studies or inconsistencies in testimony. And she says, well, that’s because to me, risk equals cause. ⁓ And then you wrote down with your markers.

Jake Plattenberger (26:30)
Correct.

Tim Cronin (26:45)
Yeah. equals cause. And that’s a huge thing they were arguing. The increased risk is because it’s a lack of donor of breast milk, not because formula causes anything. And then their corporate rep on the stand says they mean the same thing.

Jake Plattenberger (26:59)
Right. And that was big because their internal documents talk about the increased risk. Yeah. Which this is a conflict between the language of science and the language of law. Scientists don’t use the word cause. Lawyers do. So, you know, we all know who do this work that if scientists are saying this increases the risk, that means it contributes to cause or at least it can. So all of Abbott’s internal scientific documents say risk and Abbott’s position at the trial was

Tim Cronin (27:09)
They don’t.

Jake Plattenberger (27:25)
risk is not the same thing as cause and we say risk and all of our internal documents that that doesn’t mean cause and then the corporate rep gets up and says risk equals cause. grabbed my marker, I wrote it down and huge thing right next to her picture, wrote it down and I said to the jury, said, there you go.

Tim Cronin (27:43)
So I knew I had that going in. So I had a little bit more time to take that. And one of the things you just referenced is I then put it up with her and said, this is your risk equals cost. To you, they mean the same thing. And then I actually went through all of their documents where they use the word risk. And I said, read that for the jury, but substitute cost for risk.

Jake Plattenberger (28:03)
Well, you

and I had that conversation in the room and I’m like, that’s a great idea. just have her read it and substitute the words.

Tim Cronin (28:11)
didn’t want to do it and they were objecting and our judge looked at her and went, I mean, you said risk equals cause, right? Yeah. Answer the question and read what he’s asking you to read. Now again, I lost my trial, but we get, we get another shot to do it. And I’ve talked about the order a little bit, but no, I had such a pleasure and I learned a lot, Jake, from, from, I like your style. Everybody has their own style and should have their own style.

Jake Plattenberger (28:18)
Yeah.

That was beautiful.

Tim Cronin (28:36)
But I’ve adopted some of the things you do. I’m using demonstratives more and creating them live. And I think I could tell a difference with juries, juries liking it and feeling more engaged.

Jake Plattenberger (28:48)
Yeah.

And the other thing that you that you gain from doing a demonstrative live is that the defense has no opportunity to object to it or see it. And so like one of the things that I used was like a stick figure named Abbott pushing a child off of a cliff to to illustrate multiple risk factors and how Abbott’s formula was the final kind of push into this disease. If I had disclosed that like or used it

before the defense, right? Like they would have gone crazy, they would have objected. So that’s a big benefit of doing live, creating live demonstratives.

Tim Cronin (29:26)
So I already said it, but kind of break it down. How long did your jury deliberate? I forget. I don’t think it was terribly long. And then. Yeah, because it was bifurcated. So they came back and you won.

Jake Plattenberger (29:32)
Yeah, not long. Four hours maybe. 18 minutes on punitives.

We want both the design defect and the failure to warn.

Tim Cronin (29:48)
failure to warn. so you negligent design, you didn’t submit on strict liability design just because of the language and the instruction if I drew it. Yeah, but you won negligent design and then you won negligent failure to warn and strict failure to warn. Right. The jury agreed with you, I think on all of them. Correct. And then you got hum what was the compensatory damage? then you came back, you read like, just read in a net worth.

Jake Plattenberger (29:57)
That’s right.

$95 million.

So in the period of closing, yeah, yeah, we had agreed upon numbers.

Tim Cronin (30:22)
And then you gave how much time did you get for your second closing in the second stage for punitive?

Jake Plattenberger (30:27)
You know, there were no time limits, but I think it was under five minutes. I mean, it was very

Tim Cronin (30:31)
minutes I watched and then Abbott’s defense lawyer basically was like you have done wrong by finding against us. was yeah, I don’t think he’d ever done a punitive defense. I don’t think our

Jake Plattenberger (30:38)
It’s very odd.

I don’t think so. But yeah, he was talking about how you

Tim Cronin (30:45)
…armed hospitals

and babies by already finding this…

Jake Plattenberger (30:47)
I

that and then he said that the executives at Abbott weren’t tears. He said, just got the phone with them. They’re crying. so he, I stood up in my second clothes. I stood up in my second clothes and I said, I was like, you have got, I said it just like this. I said, you’ve got to be kidding me. I was like, these, they still don’t get it. That’s why you have to go back in that room and put a number on them. I think I said that it’s going to shock them out of the fantasy that they are living in.

Tim Cronin (30:56)
call them in and sounds like they’re witnesses now.

And but you you left it to him. Correct. You suggest the number and they came back with how much impunitive. What a like fantastic result, Jake. Yeah.

Jake Plattenberger (31:21)
400 million impunitives.

Thank

you. It’s huge to every, I mean, everybody is a huge team.

Tim Cronin (31:30)
You

had a big team that now I don’t think what I’ve mentioned yet is you did almost every single witness for three weeks, think, ⁓ except for two, which was life care planner and economist and economist direct. Correct. You crossed everybody. You put everybody else on the stand. You were dead on your feet at the end, man. I saw you at the end and you were getting sick.

Jake Plattenberger (31:39)
Number two.

Yeah,

I mean, like I felt like for the punitive damages closing, was a hard, had a hard time reading the numbers that I had in my hand. Like I just couldn’t even see anymore. I mean, I don’t mean to be overly dramatic about it, you know, like I was so tired. My eyes weren’t working. I needed to be done.

Tim Cronin (32:11)
You were. You guys result. Yeah. Very impressive. So Jake, thank you so much for coming.

Jake Plattenberger (32:16)
Yeah, this is great, man. And you know, I love your firm. Love working with you guys. You guys have an incredible track record. You do great work. I’ve learned a lot from you guys and we’ve got a lot more neck work to do. So let’s go get them.

Tim Cronin (32:30)
Thank you to Jake for coming on and his firm, an excellent firm, and we look forward to working with him more in the future. This has been another episode of The Jury is Out. Thank you again, Jake. This is Tim Cronin. We’ll see you next time.

Jake Plattenberger (32:39)
Yep, thank you.

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