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Frank Cappello: [00:00:00] Hello and welcome to this week's bonus episode of LeverTime Premium, exclusively for the Lever's supporting subscribers. I'm LeverTime producer Frank Capello. For today's interview, I spoke with attorney Jeffrey Simon, who has spent a large portion of his career specializing in mass tort litigation, which is a field of law which allows claimants to seek relief from the wrongful acts of others.

A few years ago, Jeffrey was part of the legal team that won the historic 2 billion dollar settlement from the pharmaceutical giant Johnson Johnson for their role in the opioid epidemic. now Jeffrey and his team are suing 17 fossil fuel companies for their contribution to a 2021 heatwave in Oregon that killed 69 people in Multnomah County.

I spoke with Jeffrey about his career as a tort litigator and how this new [00:01:00] lawsuit in Oregon varies from some of the other state-based climate lawsuits being pursued across the country.

Thank you again for being a supporting subscriber and funding the work that we do here at The Lever. Now here's today's interview.

Frank Cappello: All right, I am very excited to be joined today by Jeffrey Simon. Jeffrey is an attorney who specializes in mass tort litigation, and you might not be able to see it, but I can see he's got a number of accolades and plaques behind him, so I imagine that he's very good at what he does. Uh, Jeffrey, thank you so much for joining me today on Lever Time.

Jeffrey Simon: It's a pleasure to be with you. And, uh, whether I'm deserving of the recognition or not, I received it. It wasn't purchased on eBay.

Frank Cappello: Okay, good. That's good. I'm glad we got that, uh, that disclosure out of the way right up top. so Jeffrey, you spent your career representing consumers and workers, two groups of people that we, you know, care a lot about here at The Lever, uh, who have been harmed by others, mostly large corporations.

So before we get into what you have been working on, what you're [00:02:00] currently working on, tell me a little bit about your background. How did you get into this work, and why did you choose to specialize in it towards litigation?

Jeffrey Simon: I'll give you the short version. Now the long version can be found in my book, Last Rites, which I know sounds like a shameless plug, but it's actually true that I tell that story in that book.

Frank Cappello: This is the place for shameless plugs,

Jeffrey Simon: Having said that, You know, I went to law school to further my education. I was not certain that I wanted to be a lawyer. And when I, was about halfway through my first year of law school, the mock trial competition started where you competed against other law students in trials, which are judged by second or third year law students or by lawyers or judges in the community.

And they don't judge who wins the case. They judge performance. And I realized in those competitions, which I absolutely loved, I thought they were thrilling, that I, I want to be a lawyer because I want to be a trial lawyer. And, um, I then, as a law student [00:03:00] later in that, in, in, in, in that, educational trajectory, I clerked for both a plaintiff's firm and a defense firm.

And I actually learned at the defense firm that I want to be a plaintiff's. Lawyer that right. I worked on a project where I was asked to try to find defenses for utility company and, uh, had to do with, a boat mast that that hit a low hanging power line. And it, it killed a child and it, it, it, it, it burned the family very badly.

And the legal defenses that I was asked to look for there was nothing unethical in the requests that I should try to Find the best defenses for for that client and I did my very best but the whole time I was thinking to myself I'm for the family, you know, and i'm for the kid, right, you know And I want to be a plaintiff's lawyer and then I clerked for a plaintiff's firm and that completely corroborated and validated my instincts and so I've been dedicated my entire career Uh, to trying to [00:04:00] help, um, workers and people and their families in even larger communities, especially in the last seven years, that have been harmed by corporate misconduct.

Frank Cappello: Gotcha. So, more or less, your ethical scruples are what led you to where you are today. I

Jeffrey Simon: am one of the very lucky people that really gets to do what he believes in. That's wonderful to hear.

Frank Cappello: And I, I, I know I'll speak for my audience when I say I really appreciate meeting folks like you who are doing the big, hard legal work, uh, on the side of the little guy.

speaking of which, uh, like I said, you specialize in tort law. that's something we've talked a little bit about on this program and in some of our reporting, but can you just give like a, a brief overview? What is tort law? and, and how did you use it to win a historic settlement recently from the pharmaceutical industry?

Jeffrey Simon: So tort law is, harm caused by the misconduct of others for which the civil justice system provides a remedy. And [00:05:00] that remedy can be for negligence. It can be for recklessness. It can be for intentional misconduct. But in any event, the more traditional forms of cases that we see in in the tort system are claims for personal injuries.

wrongful deaths, uh, in a more limited sense, uh, certain types of fraud, uh, certain types of, sexual misconduct. Those kinds of things are traditional tort claims, um, and, In the civil justice system, uh, I and my firm, uh, represent a number of governmental entities, counties and cities throughout America in opioid litigation, specifically cases against opioid manufacturers, wholesale distributors and retail pharmacies for what we allege was a reckless and sometimes deliberate, depending on the context, effort to glut [00:06:00] America With prescription opioids, um, in higher doses, in greater volume, um, and with greater frequency than was ever legitimately medically therapeutic.

And the result of it was, is that it, We have an enormous, uh, problem now with opioid addiction, uh, and overdoses, uh, a problem that is now a bit more than 20 years old, but unfortunately has progressed to street opioids like heroin and fentanyl. Sure. Uh, didn't, didn't start there, started with prescription opioids, but as the...

As you have a generation, unfortunately, of, of, of increased addiction and overdoses and they no longer can get access to prescription opioids, they often are, you know, suffering from overwhelming withdrawal symptoms. And, you know, if they can't get immediately into treatment, which is often not available, otherwise affordable.

They have to get another opioid in the body because the symptoms are simply overwhelming and just [00:07:00] can't be withstood, so they have to be alleviated, and unfortunately, people will sometimes, too often reach for street opioids for that alleviation.

Frank Cappello: And it should also be noted that, uh, you know, The street prices of opioid pills of prescription pills is very, very expensive and, uh, street heroin is much cheaper.

So the, the opioid to heroin pipeline is, is a very understandable, like almost economic, uh, downslide for the people suffering through this

Jeffrey Simon: crisis. Exactly right. You know, people who say to themselves, you know, I would never do, you know, uh, A horrible street drug like heroin include people that never imagined they would become addicted to prescription opioids and then they were led down a desperate path.

And in addition to the untold human suffering, there's enormous economic burden on taxpayers who have to cope with those problems at a local level. And so, uh, I and my law firm and others with whom we work, we represent Communities seeking recompense for the [00:08:00] opioid related resources they've had to expand, uh, to great degree as well as the resources they need for harm reduction going forward.

Frank Cappello: Now I'd like to turn to your new case. So, uh, earlier this year, a suit was filed in the state of Oregon against 17 fossil fuel companies for their role in the 2021 heat wave that killed 69 people in Multnomah County alone. Um, I should also note, I believe roughly 800 people or more died in the region between the United States and Canada because of that heat wave.

So can you explain a little bit about this heat wave in Oregon and how you got involved in the case? When, when you and your firm and these other firms that filed suit thought that, hey, there's something here that, and we can, we can help these people.

Jeffrey Simon: Sure. So as you pointed out correctly, Um, in June 2021 and lasting for, uh, a full week, Multnomah County, Oregon, which includes Portland, Oregon, [00:09:00] was scorched by the most extreme heat event in its history, literally in its recorded history, dating back to 950 A.

D. And over three consecutive days, county temperatures reached highs of 108, 112, and 116 degrees Fahrenheit. In a community... Where the normal high temperature in June is 78 degrees and we're 40 percent of the population had no cooling systems in their home because they never before needed them. 69 people died.

Of heat exhaustion, most of them in their homes. The cable cars, the actual cables themselves for the cable cars melted. Wow. It was so intensely hot without relief. It was not a natural weather event. It was not a mystery of God's will. In the aftermath of the catastrophe, several scientific studies were conducted, all of which reached the same conclusion.

That this extreme heat event was caused by fossil fuel pollution that superheated the Earth's surface. [00:10:00] Dried out the region's soil and intensified a high pressure system in the county, turning it into a convection up.

In the aftermath of both the event and the scientific study, um, that was initiated, you know, after it, the county had a simple question. hmm.

And, uh, they approached, uh, our firm, uh, and another with whom we're working in the case because we have experience in representing communities when they have suffered catastrophic harm from the alleged misconduct of others. Mm hmm. Uh, we mentioned opioid litigation, that was certainly one of them. And our conclusion was absolutely.

This was a traditional tort case where the misconduct of an industry, we allege, Caused an outcome for which they need to pay for the harm they caused. [00:11:00] We know from internal corporate documents that oil companies we sued knew more than 50 years ago that carbon emissions from the fossil fuel products they sold were polluting the atmosphere at a high rate and would cause the surface temperature of the earth to substantially rise.

Over 40 years ago, according to the documents we've reviewed, they correctly predicted that by the year 2000, the increase in global temperature from their polluting products would be appreachable. And that by 2030, they predicted catastrophic outcomes in otherwise temperate climates. But we allege they deliberately misled the American public that the science on those matters was unclear and unproven, and that therefore no action should be taken to restrict their product sales or their pollution.

Well, unfortunately, this is not going to be an isolated event. The very same carbon pollution that was there in 2021 is going to remain for over 100 years and is growing worse. [00:12:00] And there are now a number of peer reviewed published studies which confirm the likelihood this heat event cycle is going to happen over and over and over.

They've reportedly had 10 heat exhaustion deaths this summer in Multnomah County, whereas in a normal year they have zero. And it's going to take an enormous amount of money, billions of dollars, to reimagine the infrastructure of this community in order to withstand those extreme heat events. To essentially make it Portland, as opposed to the Pacific Northwest in terms of its heat resiliency.

And, you know, it's the Pottery Barn rule. You break it, you own it. And, and we're going to use the civil justice system to make sure that, that those that broke it own it. And, and what are

Frank Cappello: you, and what are your plaintiffs seeking in damages? Uh, like what, what is, what is a best case scenario outcome?

Jeffrey Simon: They have sued for...

50 million in past damages. That is [00:13:00] all the expenditure of emergency resources, health resources, law enforcement resources, the damage to property property and infrastructure from the heat event itself. A billion dollars in future damages because this is going to happen over and over and in fact has already Since that event and will continue to happen with greater intensity and greater frequency because the pollution itself is also Intensifying and 50 billion dollars in a fund not money that is just handed over to Multnomah County you know is is money that is available for establishing all of the harm reduction preparations that are necessary in order to save lives.

Frank Cappello: so in the last few years, we've seen a, in the U. S., a big jump in the number of climate lawsuits being filed against the fossil fuel industry on behalf of states, cities, counties.

Thank you. [00:14:00] There's the youth led federal case, Juliana versus United States in Hawaii, Maui County, and the city of Honolulu have filed suit against Big Oil. And we just saw, uh, youth climate activists win the first ever climate, uh, suit that made it to trial in Montana in the Held versus Montana case. So, was there something unique about this?

Heat wave in Oregon, that left the fossil fuel companies open to litigation. Is this kind of part and parcel of all of these climate suits happening or is there something that distinguishes this case from the other cases?

Jeffrey Simon: Another good question. So it is an indisputable fact apart from any political rhetoric.

It is an indisputable fact that fossil fuel pollution has accumulated in the atmosphere to such a high degree that it has created an earth energy imbalance. What that means is, is that instead of The sun sending heat [00:15:00] energy down to the earth and then having it bounce back into the atmosphere instead of going all the way back into the atmosphere, it is trapped by the carbon cloud for lack of a better description and that that creates a heating effect, which throws regional weather around the world into chaos.

We were seeing temperature events and other weather events. That have never before happened in history.

Frank Cappello: Southern California just had a tropical storm and almost a hurricane. There's a region that never sees storms like that.

Jeffrey Simon: right, and so, of all the things, all the anomalous weather, all the intense weather, that we can say, as a general rule, Or as a general proposition, has some relationship to carbon pollution.

To be fair, some of those happen anyway. Maybe not as intensely, maybe not as often. But we certainly had hurricanes before the industrial age, even [00:16:00] though, obviously, carbon pollution can intensify them, can make them more frequent, and so forth. Of all the kinds of anomalous extreme weather events that can be considered in relation to whether carbon pollution is its cause, according to the scientific literature, extreme heat in otherwise temperate places is the most clearly attributable to the greenhouse gas effect.

And that's exactly what you had here. And so our case is one of the few cases where the claim is about a specific catastrophic event. And it is the only one in relation to a particular extreme heat event. And what drew us to the case was The scientific relationship between carbon pollution as the cause of this event was so strong [00:17:00] and pre existed the filing of any lawsuit.

Frank Cappello: Got it. So would it be, so would it be safe to say that the, the research and the science is really on the side, on your side in this

Jeffrey Simon: case? Absolutely.

Frank Cappello: so this suit also names the consulting group McKinsey and company as one of the defendants. McKinsey, another, a consulting group we've reported on a lot here at the Lever.

why is, why is McKinsey named as one of the defendants when you're mainly going after some of the fossil fuel companies?

Jeffrey Simon: We allege that some of the largest fossil fuels. Your companies in the world engaged in a deliberate misinformation campaign to the public and to scientists what they Consistently reported, we allege that they knew to be false was that carbon pollution was not causing significant environmental change or in the alternative, not one that will affect you.

Right? It's one thing to cry about polar bears being, you know,[00:18:00] you know, having to surf in the Arctic and the way they tried to make those stories sound extreme and almost cartoonish, but it's not going to happen in Portland and it's not going to happen in New York and it's not going to happen in Kansas City.

It'll never affect you. And since it'll never affect you was the theme. We should keep gas prices low so that you can fill your car with them and get to work and not be hassled and all the rest. Well, they didn't do that alone. We allege that they engaged with some of the most capable, uh, PR firms. And, you know, messaging companies in the world, and then McKinsey was one of them in order to achieve that result.

Frank Cappello: Gotcha. Thank you for laying that out. Um, In my research in this case, I read that climate lawsuits are expected to have a better chance of winning in state courts rather than federal court. Why is that? Or do you agree with that statement?

And if so, why is that?

Jeffrey Simon: Well, Plaintiffs lawyers, [00:19:00] like me, prefer state court to federal court generally because jury selection is more robust in state court than in federal court. In federal court, the federal judge picks the juror. And the federal judge doesn't have the same goals that I have. That, there's nothing wrong with their objectives, it's just that...

You know, they want to get a jury in the box. That seems fair. I want to do a much deeper dive with jurors about whether they have any biases or prejudgments. And by bias, I mean nothing racial. I mean, any kind of inclination whereby they may have prejudged this case and otherwise can't be completely neutral because every single one of us has biases about some things, right?

You know, I Right. I like the Dallas Cowboys better than the Philadelphia Eagles, nothing's gonna ever change that, right? Mm hmm. Mm hmm. Mm hmm. It's not a crime. but my point is, is you've got to root that out and determine can each and every juror not [00:20:00] just do their best, but be genuinely impartial and consider the evidence in a contemplative way.

And the answer is, is every one of us can do that better in some kinds of cases than others. And in state court, we can get to the bottom of that better. Because the lawyers conduct the jury selection, and they generally have more time to do it than a federal judge will invest in it.

Frank Cappello: Jeffrey, last question for you.

What comes next for this case in Oregon? Where, where are you at in the legal process?

Jeffrey Simon: Because the defendants would rather be in federal court, as you insightfully observed, they removed the case to federal court as expected. we will have motion practice about whether the case should be sent back to state court, which we firmly believe it should and it will.

Uh, presuming that we're right about that. Uh, whether it's in state court or in federal court, but if it's in state court, they will file motions to dismiss under Oregon state law in state court. Uh, if we're in federal court, they'll file motions to [00:21:00] dismiss under those themes. They'll basically claim that cases of this type should not be allowed to go forward for various reasons.

In short, we want the case to get to a jury. They don't. They'll do everything in their power to try to prevent it from happening. Everything, uh, everything that they legally,

Frank Cappello: that everything, yeah, everything within their legal power. Yes.

Jeffrey Simon is a partner at the law firm Simon Greenstone Panettiere.

He is an attorney who specializes in mass tort litigation currently, uh, along with several other law firms, uh, suing. The fossil fuel industry on behalf of Multnomah County in Oregon. Jeffrey, thank you so much for your time today and thank you for the work that you are doing. Thank you

Jeffrey Simon: too. It's my pleasure to be with you.

Frank Cappello: That's it for today. Thank you again for being a paid subscriber to The Lever. We really, truly could not do this work without you. If you particularly like this episode, feel free to pitch into our tip jar.

The tip jar link is in this episode's description or at levernews. com [00:22:00] slash tip jar. Every little bit helps us do this kind of independent journalism. and if you have the time, be sure to like, subscribe, and write a review for Lever Time on your favorite podcast app. It helps the show get in front of more people. And make sure to subscribe to our other podcasts, The Audit and Movies vs.

Capitalism. Until next time, I'm Frank Capello. Rock the boat. The Lever Time Podcast is a production of The Lever and The Lever Podcast Network. It's hosted by David Sirota. Our producer is me, Frank Capello, with help from Lever producer Jared Jackangmayor.