Bryan Aylstock on Creativity, Collaboration, and the 3M Fight

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Welcome to Raising the Bar with RebuttalPR, the podcast where we elevate the stories of the plaintiff's bar and dive into the key trends shaping the civil justice system today. I'm your host, Ray DeLorenzi, and in each episode, we'll bring you insightful interviews with leading attorneys, expert perspectives on current legal events, and in-depth discussions on the issues that matter most. Now, let's jump in.

Judges are human. They don't always get it right, but they try to get it right. And if they don't get it right, you know, there's an avenue for others in the higher courts to deal with it. And the more we can educate people about that, the better off our entire society is.

Ray: Hey, everyone, welcome to a new episode of Raising the Bar with RebuttalPR. I'm your host, Ray DeLorenzi, and today I'm joined by Bryan Aylstock of Aylstock, Witkin, Kreis & Overholtz in Pensacola, Florida. Bryan has led some of the largest mass torts of the last 20 years — 3M earplugs, Zoloft, Depo-Provera, Avandia. Bryan, thanks so much for joining the podcast today.

Bryan: Thanks for having me, Ray. Really appreciate it.

Ray: So, Bryan, I always like to start by finding out a little bit behind the person, kind of what makes him tick. What made you want to become a lawyer in the first place? Take us back to young Bryan.

Bryan: Well, that might be scary for some of you, but young Bryan wanted to be an engineer. I got into electrical engineering school and I continued with one class and I'm like, this isn't going to be for me. So I was lucky enough to kind of stumble into the legal field. I became a history major and took an aptitude test. And long story short, I scored very well on that, or being a police officer. So here I am as a lawyer. But growing up, I didn't have any history in law whatsoever. I had no family or friends of the family who were lawyers. It just... I lucked out. It's something I love to do, and I'm really glad I am. I don't think I'd be a great electrical engineer, as it turns out.

Ray: What was it about engineering that didn't suit you?

Bryan: Well, you know, it's extremely rigid, and really, it was an awful lot of math, and no nuance to much of that, in my view. And we kind of work in the nuance when it comes to the law. And you can find ways to advocate for your clients that others don't. And it really suits me well.

Ray: As you say that, I don't think creativity and the law are things that people necessarily put together, but it seems like you view it another way, and your approach, you take that creativity and put it into your practice.

Bryan: Well, I think you have to. If you can find a better way to make an argument, you should be doing that. And oftentimes we do. One of the things I do love about mass torts is, yes, there's a lot of similarities between one mass tort and another. But there's also always room for improvement. There's always room for education. I'm always learning, whether it's the next scientific literature article that I have to get up to speed on, or the law is constantly changing, the judges are all very different. So it also suits my personality. I think I have a little bit of ADD in me, so it allows me to always be improving, always be learning.

Ray: So, in 2001, you started AWKO. What was the journey that got you to the point of, you know, I think I can do this on my own and I have a vision to do it?

Bryan: Well, I had been working a lot in the diet drug space, and there were two rounds, as most of you probably know, of the diet drugs. There was the first round of opt-outs, and then there was a class action resolution with another round of opt-outs. I had done a lot of work in the diet drug space in the round one opt-out world. Those cases resolved. Not many people who were involved in round one moved on to round two, and I saw an opportunity to do that and build a firm from that. And I took it. I certainly didn't know how it would turn out, but I'm glad I did, and it turned out great.

Ray: Did you have a vision at the time of what you wanted to become, or was it like, you know what, we're just going to let it ride and we'll see where we take it?

Bryan: Well, you know, mass torts are hard. They have a way of just... they're all-encompassing. You can work 24 hours a day, seven days a week, and not learn everything about what it is that's in front of you. So there's a little bit of a balance there in trying to figure that out.

But it's also important for us all to realize that these are individuals. Yes, there's a whole bunch of the same injury or whatever happened, but they are individuals. They need to be treated as individuals. And although systems can be set up to make you more efficient and your firm more efficient, and certainly courts are struggling with it by way of case management systems and other things to manage the docket, having that individual emphasis in a mass tort is something that I think is a good thing. We've tried to create that. It's not perfect, but it's certainly something that we strive for.

Ray: So when there is an emerging case — let's say there's an FDA recall on a drug or device, or a new warning, or a product recall — how do you look at that case or that incident and decide, you know, this is something where we can make an impact?

Bryan: Well, I've been doing this long enough to know that usually when there's a warning change, or certainly when there's a recall, there's a whole lot more to the story. The company usually knows a lot more than they're letting on, and oftentimes they've been hiding it. In the highly competitive pharmaceutical market, we've seen the ads that are plastered all over TV. Those ads are expensive and they work, because people go out and buy those drugs, and they're very expensive as well. So there's an enormous incentive by the drug companies not to warn about certain things or to cover up certain things. And what we've seen is when those happen, there's usually more.

So then we look at: all right, what is the injury that created the need for the warning change, how many people used the drug, what companies were involved. Sometimes we anticipate a company may go bankrupt, and they certainly have. And that puts us in a whole different sphere and a whole different way of looking at it. And then we evaluate: is this an injury that we think we can connect? Because some of the case-specific causation issues can really make a mass tort very, very difficult.

Avandia is a good example. When we were first getting into Avandia, the Cleveland Clinic came out with a meta-analysis showing that it caused heart attacks. And Avandia is a diabetes drug. We looked into it and said, well, gosh, more than 60% of diabetics are going to die from a heart attack because diabetes causes heart attacks. How are we going to disentangle that? And then we started talking to the experts and figured out: yes, this is something that we can make an impact on. Even though it's difficult, we think we can do it. Other torts are a little bit different. If it's an injury that's not as significant, maybe it's not worth the effort in this particular case, or maybe my firm's resources could be better utilized somewhere else where the injury is more significant. So it's really a balance of what's going on in the law firm as well as what we see from the medical literature: how strong the association is, where the case might go by way of where the defendant is. There's a lot that goes into it.

Ray: So the mass tort bar, I think, is known for being somewhat difficult to break into. After you did the first two rounds of fen-phen, what was the case that you felt like, you know what, we've not made it, but we know what we're doing here?

Bryan: Well, I knew we knew what we were doing. What I didn't know at the time was exactly how expensive it would be to be doing what we were doing. Luckily, we had the resources that we needed at a time when it was very difficult to get those resources. Litigation funding wasn't a thing. We went to our bank and said, we need a line of credit. And they said, well, that's great, put a CD with us, and we'll give you a line of credit right back. So that obviously isn't a way to run a mass tort, because it is very expensive. And the time frame from the inception of the mass tort to the conclusion can be very long. I've seen it get longer as my career has developed. It used to be three to five years, maybe, before you could get some sort of resolution for your clients. And it's unfortunately becoming longer and longer.

There are a lot of reasons for that, but we're doing what we can to encourage the courts to move quicker, encouraging other lawyers to make sure that their claims are vetted so that the wheels of justice don't get gummed up by claims that shouldn't be there. And there's a lot of factors to it. Sometimes the cases are just so large, there's just too many victims. We saw that in the transvaginal mesh litigation, where there are hundreds of thousands of women whose lives are destroyed because of this mesh product that gets bound up in their bodies. And there's only so many courts, so many district judges in the country to handle it, so many state courts. So it becomes incumbent on us to do the best we can for the ones that are first, so that we can show the companies that we're not going anywhere, and they need to resolve everybody's case.

Ray: I want to take some time to talk about the 3M earplug case. You were certainly on the map before that, but I think it kind of put you and the firm in a different stratosphere in many ways. You were counsel in that case; it was also the largest mass tort in US history. Bring us back to when you first heard about the case — not the case, but the injuries and the product — and what was your reaction at the time?

Bryan: Well, so we're based in Pensacola. It's very veteran heavy here. My dad, grandfather, great-grandfather, all veterans. So we have a lot of veterans that work for us. We're very interested in helping veterans. So that was the first thing that struck me. This is pretty jacked up. When the Stars and Stripes article came out and they had pled guilty — or I shouldn't say pled guilty, the litigation brought by the United States government for these earplugs that were defective — we're like, we have to do something to achieve justice for all these veterans. And frankly, we were told, and you can go back and research the memos written by experts or so-called experts on mass torts, that we were going to lose because the government contractor defense was going to insulate 3M. And it's a very powerful defense. It's based upon the Supreme Court precedent of the Boyle decision.

But we looked at it and we're like, no, there's got to be more here. And there was. There was a lot more. There were many smoking gun documents that demonstrated that, one, this really wasn't at all designed by the government, it was designed by 3M, but also that they knew about it and they hid it and they didn't tell anybody. So I was surrounded by a huge number of such talented lawyers who helped so many of these veterans get to trial, and the ones that did overwhelmingly won. The ones that didn't, I still feel for, because I know that they were all deserving. But the issue there, in addition to government contractor, was case-specific causation, like it is in most of these, because we all know that loud noises can cause hearing loss. Was the soldier wearing it at the time? Were there other things going on that could cause it?

So they're always a challenge, but I'm thankful for the lawyers the judge selected to participate in the case. And we also had a judge who didn't get the memo on how long these cases are supposed to take. She moved the cases quickly toward resolution one way or the other, and she made the findings promptly, and we certainly worked hard. And it was COVID time for much of it as well. So whereas a lot of lawyers really didn't have a whole lot to do, we were busier during COVID than we were outside of COVID. Depositions were happening. Trials were happening. We just worked. And that was to the benefit of all the clients, which I'm grateful for.

Ray: I know at the early stages of that case, really in its infancy, there were lawyers that looked at it and were like, you know, what hearing damage? Service member... I don't see it. How do we prove this case up? And I'm curious — you don't have to name names — was there anyone in your office who looked at it like, are we sure on this one?

Bryan: Well, yeah. I mean, even my grandfather and great-grandfather, they served in World War I and World War II. They were hard of hearing, and sort of the natural reaction was: well, of course, that's what's going to happen to you. But what we saw, first of all, was all in the documents. Also, the government had recognized this decades ago and had put such great resources into preserving the hearing of our veterans. First of all, it's the right thing to do for people who serve this country, but it's also critical for being battle ready. If the active duty people can't hear their commanding officer, they're not ready for duty. Things can go wrong. You lose battles because people can't hear. So they devote huge amounts of resources to hearing conservation.

Some of our experts headed up the entire department that Congress created to try to create better readiness for our active duty people, and we had the documents from 3M itself saying this earplug will protect you, you don't have to lose your hearing to serve your country. All those statements, once we got into it, we were like, oh, that's not something that's going to carry the day in front of a jury when they've been telling the veterans in big, big glossy posters that it will protect you up to 190 decibels, which is almost painful to the ear. So all these cases have challenges. The trick is how do you overcome them, avoiding the groupthink, getting other smart people in the room with you to figure it out. And that's what we did. I can't tell you how many nights we would spend just talking: how do we figure this out, how do we figure that out? And ultimately, it resulted in the big settlement that resolved 235,000 claims.

Ray: In a case like this, when you're leading it, obviously you cannot try 235,000 cases. How do you switch between your war hat and your State Department hat? Essentially, we've got to litigate this, but we've also got to land it somehow. Your goal is to land at a resolution; the defense is like, we'll get some motion to knock out the whole thing. How do you balance those things?

Bryan: Well, it's not easy. When you get there in trial — and I tried a lot of these cases — it's tough. It's hand-to-hand combat and you're not always friendly with the other side, and I certainly don't socialize with them really during trial. But outside of trial, for the most part, we try to be very collegial. I mean, they're humans too. They have a job to do. We have a job to do.

So if you recognize that... you know, there's the true believers on their side that just say every single case is frivolous and we're the devil, how dare we sue this great and mighty company that's doing nothing but helping people. And we have true believers on our side that think every single case has to be paid millions of dollars, even the ones that probably aren't valid. So as long as you get a recognition of, look, there's common ground here. And I was able to do both. I was able to try cases, and did, and then I was able to be involved in the settlement. But we also had Chris Seeger, who was our settlement guy, and he was able to maintain that posture even while we were in trial. So I think it's important, and a lot of judges are recognizing it even on the defense side, saying, look, you have your War Department, appoint somebody who — they don't have to settle, but at least be able to talk settlement without getting so in the weeds that they think resolution can never happen here.

Ray: So you had 16 trials. I want to talk about the first one, which you tried. It's not every day, every MDL, where the lead counsel is also trying a case. It's not uncommon, but it's not a regular occurrence. Was there ever a doubt in your mind about that, or were you like, I'm trying the first one?

Bryan: I was trying the first case. I mean, the benefit that I had was I was able to be in the weeds with the documents, and in order to effectively try a case, you really have to know it. So I lived and breathed that case for years, and it's Pensacola, it's where I live. I know how people think here, and I was certainly going to try that case. Not alone — it was actually three plaintiffs that were being tried together. So, again, we had a big team of stellar trial lawyers that all came together, and everybody had a role in that trial. Even the ones that didn't necessarily speak, there were people working night and day, because I can assure you, Kirkland & Ellis and Dechert had teams and teams of people, both in Pensacola and otherwise. So it was kind of the first hitting-the-beach type thing. It was hard work, but I knew I was equipped to do it and I was happy to do it.

Ray: Let's fast forward a bit past 16 trials for a moment. And 3M sinks its subsidiary into bankruptcy. What's your reaction in that moment?

Bryan: Well, first of all, I had never really been in the weeds in a bankruptcy. So I was just stunned. We had no idea that that was coming. And later we learned in the bankruptcy that it had been pre-planned for months and months. They were doing everything they could, and we had just done a mediation, court-ordered mediation, and certainly it was a stunning revelation, and we knew we had to beat back that bankruptcy. And again, we had the best bankruptcy lawyers in the country to help us do it. And once again, the litigation firms had to come together to get the facts marshaled for the bankruptcy folks to show the judge, in that case Judge Graham, that this bankruptcy needed to be dismissed. And it didn't happen overnight. Nothing does in bankruptcy. But ultimately we got him to agree, and he came to the right conclusion, and the case resolved just months after. So it was probably the single biggest thing that needed to happen before we got resolution for our clients.

Ray: I doubt you remember this, but it was the first-day hearing, or maybe the hearings right after that. I was there in Indianapolis, and I walk into the courtroom, and there you are standing by yourself in the back, just looking at the dais, looking into the middle distance, wondering, why the hell am I here? And I go up to you, I say hello, and you look at me and you go, have you ever been in bankruptcy court? And I go, no, and you just said, me either. And at that moment, it was a sobering moment. But that's why you have a great team of folks whose whole job is to live in bankruptcy court. And I guess my question out of that is: as you view any case now — and now we're post-Red River — how do you view bankruptcy and mass torts generally, and how they're intersecting? And does it stoke fear or promise, or what's your view on it?

Bryan: I certainly learned a lot. Going back to my ADD, having been in bankruptcy now, I've learned an awful lot. And look, where there's an insolvent defendant and there's a limited pot of funds, what else have we got? It's sort of the only thing we have. But where there's a solvent defendant and bankruptcy is imposed on our clients, we're going to fight it tooth and nail, and that's because bankruptcy is not designed for that. This is not a cram-down. This is a negotiation.

And when they came in on that first-day hearing that we all recall so well, first of all, they viciously attacked our court for no reason whatsoever. It's hard to fathom how anybody could stand up and do what they did. But the other thing they did is they insulted every one of our clients and said, basically, for the hundreds of thousands of clients, you can settle for what would amount to like $4,000 each. And you have no right to opt out, you have no right to do anything — take it or leave it. So once we heard all of that, we knew we had to win. And there was no way that they were going to be able to impose a bankruptcy solution on us without us taking every appeal right and doing everything we could to get ourselves out of that, because it's not designed for this purpose. And I think ultimately, Judge Graham agreed with us on that.

Ray: Ultimately, for those who I guess were living under a rock, it was over a $6 billion settlement to resolve that case. And for as heated as that was, I want to pivot to talking about your work to bring more comity to the bar generally. For those unaware, Bryan and his firm are among the leaders of a mass torts trial lawyers group, which meets, what, two or three times a year, with plaintiff, defense, and the judiciary. And for those in the plaintiff mass tort world who haven't been to one of these conferences, it's really tremendous. Just this last one, you had Judge Chhabria and Judge Breyer, and it was almost like... it was so informative, but also like a stand-up comedy routine between them. And it opened the session. It was one of the best panels I've ever seen. But I want to know what inspired you to start that.

Bryan: Well, it really, hearkening back to the bankruptcy, judges are getting attacked more and more. We've seen the deterioration of any sort of collegiality — not all the time, but in a lot of our courts, certain bars. You don't always have to be at each other's throats. And in fact, it's counterproductive to everybody's clients. If I hate you and you hate me and we're never going to be able to get along, sometimes a resolution is best for the clients without a trial. Certainly a trial carries risk.

So what we wanted to create — and I think we might even be renaming it Trial Lawyers of Complex Litigation, because it does include class cases and other types of complex litigation that aren't classically mass tort at this point — is an informal way for us to build in not only educational programs that can talk about this, but also time to sit down with folks in the judiciary, and also on the other side of the v, if you're defense and plaintiff, to actually understand how we can make all of our practices better. And there are things we have those discussions about — all right, vetting, for example. It's not in our interest to have a bunch of claims that aren't meritorious in a mass tort. It slows the meritorious ones down. How do you get the information to get to those meritorious claims? And it's not always all on the plaintiff, just get your medical records and file. Well, sometimes the medical records take a long time, and you have statutes of limitations. Sometimes, in the case of 3M, they're in the exclusive possession of the DOD, and it took us many trips to the Pentagon and the help of our court and a retired federal judge, Judge Herndon, to get us what we needed to sift the wheat from the chaff, because we don't always know.

So what can we do collectively to help the courts, to help our practice on both sides, and build that sort of bond across? Because look, I have a lot of friends on the defense side, and I work with them. And sometimes we need to litigate certain issues and win or lose before it's time, but oftentimes you don't necessarily learn enough in trial to prevent you from resolving the case beforehand. And in this one that we're having — we're having another one November 10th through 13th in Cabo — we've got almost three dozen judges, I think. Part of our mission there is: how can we enhance and protect the judiciary? What can we do to speak up for them? Because they're limited on what they can do. They can speak through their orders, and they do. But when they're attacked — and now you've got pizzas being delivered and all sorts of craziness, and unfortunately, even to the point of attacks and murder — it's a real problem. So we really want to come together with them. We've got some of the best and brightest minds, but we also do it in a way that works. I mean, Judge Chhabria and Judge Breyer don't agree on a lot of legal issues necessarily, but they are friends, and ultimately, we need to make more friends in this practice.

Ray: When you first started this, was there some skepticism from the defense lawyers that you invited — being like, is this a trap? Are you serious? Or were they open to it? And how has it evolved now that you're a few years into it?

Bryan: No, I mean, look, not all of them come, and that's fine. We do want to get more defense lawyers there. And they have different issues, budgetary issues. We're now getting general counsel to come as well, because they have a unique perspective. So having as many different views involved, I think, is giving them comfort. Now, the ones I invited, I knew personally and by reputation, and I don't know that they had that concern. But certainly we do everything we can to make it a true... this isn't like, let's have a token defense lawyer on. We really want to understand how they tick and how we can work better together, and more importantly, protect our judiciary and enhance it for the future.

Ray: What gives you confidence, or makes you hopeful, about protecting the judiciary and the future of complex litigation in the US, particularly in light of all the attacks and criticism? What keeps you optimistic and hopeful?

Bryan: Well, you know, the rule of law is still here. And I think it will be here. If you look at the polling, people understand, and businesses understand, that they need to know that if there is a court order, you have an avenue for appeal, but people need to respect the court order. And I think it's good for business, it's good for certainty. Everything from patent litigation to class action — certainty, everything needs to be built on that fundamental rule of law.

And yes, we've seen attacks, we've seen vicious attacks, but the pendulum always swings. And in this case, the more we can do to keep the pendulum from swinging further toward the acrimony and just name-calling of judges... Judges are human. They don't always get it right, but they try to get it right. And if they don't get it right, there's an avenue for others in the higher courts to deal with it. And the more we can educate people about that, the better off our entire society is. So that's part of what we're doing, part of what our mission is.

Ray: Bryan Aylstock with Aylstock, Witkin, Kreis & Overholtz, thanks so much for joining the podcast. Very much appreciate your time.

Bryan: Thanks, Ray. Thanks for having me.

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