Bryan Comer joins Dalton Orwig and Dan Brennan on Mobile Mornings Live to breakdown the upcoming jury trial in Los Angeles regarding social media and its impact on the mental health of its users.

Full Transcript of Law 251 Podcast

News, sports, weather from Dr. Bill Williams, traffic info from Kane, and one of the Gulf  Coast’s most familiar voices, it’s Mobile Mornings with Dan Brennan and Dalton Orwig.  Yes, a morning of extraordinary guests on Mobile Mornings, Coach Tommy Tuberville.  Happy-go-lucky Captain Bobby, with the fish staring at him saying, who is this guy?  And now another favorite guest of ours.

 Yes, that would be Bryan Comer with the local firm Tobias & Comer Law, and always appreciate  when Bryan comes in, especially when Dan and I are lost on a national topic.  We fall off the path real quick.  Bryan, thanks for coming in with us today.

 Thanks for having me.  So, you know, it started hitting the news this week, although this has been a long time coming,  a big trial, and a jury trial at that, that they’re holding over in Los Angeles involving  something that’s been in the news for, I mean, at this point, a decade plus, I would guess,  social media and its effect on the mental health of its users.  Most people are concerned about the mental health of children and teenagers who use social  media, but this is a big case that involved basically all of the big social media companies.

 It does.  This is interesting.  They call this a bellwether trial.

 That means that it’s kind of a, not a test case, but the first of several cases behind it.  It’s going to have effects well beyond the case itself.  That’s right.

 That’s right.  As I appreciate it, there’s several thousand people with similar claims that have been  brought.  And so what happens when those claims are similar, the court sometimes will say, okay, well,  we’ll use a test case or sometimes group several of them together and try them in front of one  jury.

 And then what happens is, is they’ll, they’ll then use those effects or results rather for  subsequent trials.  And so, you know, it’s an interesting theory that they’ve brought here and is similar to  what was done against big tobacco and the opioid industry.  And it’s something we’ve talked about a lot, a defective product theory.

 And so what the allegations are in this case essentially is that Facebook, Meta, Google  through YouTube, and then Snapchat was involved.  TikTok was involved.  Instagram was that they are, they have a defectively, an unreasonably dangerous product that is  being put into the stream of commerce that’s causing people injury.

 And it’s the same thing that we talk about in terms of a tangible thing, like a crane  or a e-bike or whatever, but then they’re applying it to this platform and we can get  into this, but that’s kind of the gist of it.  They’re saying, look, you’ve got a defective product and particularly in the hands of  children whose frontal lobes aren’t fully developed, the decision-making process of  the brain or area of the brain, and it’s creating incredibly harmful effects.  Substance abuse problems is creating depression and body image issues and a whole bunch of  stuff.

 So the person who brought this case and their jury selection this week, I guess, in LA,  a California woman who says she became addicted to social media as a child, and that led to  anxiety, depression, and body image issues.  You know, we were talking about this TikTok thing for so long and getting it out of the  grasp of the communist party in China, and then who would be allowed to purchase it?  How would that continue to be used in the United States?  And so much of it was about that TikTok algorithm, which seemed to make it, the algorithm itself,  make TikTok more successful than a lot of the other social media companies.  It’s almost like it’s the new Big Mac sauce, right?  Like these algorithms are so important to the success of these companies.

 I imagine, I mean, that’s kind of what this centers around, right, is how they made these  apps to be, as so many allege, addicting to whoever uses it, especially the youth.  Yeah, absolutely.  And I want to differentiate here.

 We’re not talking somebody is suing Facebook because they don’t like Dan posting about  his inability to catch fish or something.  We’re talking about the things that are being put in front of the user, right?  And that’s where the algorithm comes in.  If I get on a social media platform, X or Facebook, it’s going to look completely different  than what you look at and what you look at, or what’s shown to you, rather.

 And that’s why, you know, there’s all kinds of studies out there.  Virginia Guy, who’s here at Mobile and does a great job with the Drug Education Council  and all the folks there, you know, who work with and treat addiction, said that the,  basically, they went to a conference where it was discussed that the social media platforms  use these brain reward systems, kind of like dopamine, and it creates behavior that’s similar  to addiction.  And that’s why people will doom scroll, or people will go on and on for a long period  of time, just mindlessly looking at this.

 Well, so what that does is, particularly in a younger, undeveloped brain, is that then  causes detrimental effects, because it actually can even rewire the brain as it’s developing.  And so that’s kind of the undercurrent behind it.  Yeah.

 And I think I might have a younger, underdeveloped brain, because I get stuck in that loop all  the time, too.  It’s pretty fascinating, because most of us have, if you got on at least Facebook kind  of early on, you’ve seen those changes yourself over the years.  And like, if I pop my Facebook open now, compared to  years ago,  years ago, I would have  seen on my homepage all of my, quote unquote, friends and their updates.

 Now, I scroll through there, and I’m getting stuff I like.  I’m seeing a lot of comedy stuff, podcasts, different sporting things.  But very little of the friends that I have on Facebook, you almost have to search them  out in many ways.

 And to me, that just shows how they have changed the algorithm, as it were, because they want  you to stay on there.  I might be more likely to spend three more minutes on there if they’re sending me stuff  that they think I might like, rather than just, all right, here’s who you’ve liked,  and here’s the latest on what they’ve been doing around town.  Right.

 Well, and not only that, you then couple that with the advertising that is with it.  And that’s what this really all comes down to.  As it’s, yeah, as it’s alleged in the lawsuit is, look, we’re putting the things that we  want you to, that we’re getting paid for, we being the social media platforms, and that’s  why now suddenly you got all these ads.

 And you think, it’s like you say some certain kind of bed, and now you got bed ads there  all the time.  And that’s the thing.  And they don’t tell you how they do it.

 They don’t tell, it’s all proprietary, it’s just theirs.  But they are using their internal algorithm to drive those numbers.  So the fact that it is intentional, it’s intentional from the money aspect, they’re trying to get  you to, trying to be able to sell ads, and I get that.

 But the unintended consequences, or is it unintended, is the fact that it kind of hooks,  especially young minds and young kids.  So are they on the hook because it is intentional?  If it was done and they just said, look, we didn’t know, we had no idea this was going  to be the result of this, we’ll try to clean it all up.  What part of this are they in the most trouble for?  The fact that it is intentional, or the fact that it’s happening at all?  Okay, so just like a, it’s more so the second, but it’s just like we talk about in a defective  products case, it’s something that’s called strict liability.

 And that says, Alabama’s version is something called the Extended Manufacturer’s Liability  Doctrine.  It’s a mouthful, but essentially what it’s saying is, if you as the manufacturer of a  product, and again, it doesn’t matter, it could be this cup, it could be this iPhone, it could  be the social media platform.  If you’re putting it out into the stream of commerce, and it is in a defective and unreasonably  dangerous condition, then you as the manufacturer, you as the creator, are liable for all the  harm that it causes, the foreseeable harm that it causes.

 And we’re not talking about if you’re misusing it, if I rig my cup up here to where it’ll  explode if you put a hot drink in it, then that’s not what we’re talking about.  What we’re talking about is what’s the foreseeable outcome.  And so here, Politico did a piece on this too, and they got their hands on, most of  the stuff was produced under something we call a protective order, and that’s where  the judge says, hey, wait a second, this is proprietary, this is trade secret, we don’t  want this getting out into the media.

 Well, some of it has come out, and what the allegations are that they knew, here’s a  from someone at Instagram, or excuse me, a senior meta-researcher is quoted as saying  in one internal communication, I mean, all social media, we’re basically pushers.  I mean, and so they know the addictive propensities of this.  They actually also released a portion of Mark Zuckerberg, who’s expected to testify in  the trial, his deposition, they showed him a document, and he was quoted as suggesting  that the company should shield teens’ live video content from their parents in a way  to avoid losing young people to competitors.

 So that’s the thing.  And so it’s what did they know in these documents, according to the news reports I’ve  read, and I’ve read some of the briefings that are online, seem to indicate that they  knew what they’re doing, and they’re doing it anyway.  We’re talking with Bryan Comer, he’s with Tobias and Comer Law, about this big social  media trial, and he mentioned, you know, big tobacco, the opioid crisis, those were  certainly bellwether cases.

 I mean, we’ve talked about them since, and there have been movies and series made, so  I wonder if this will eventually be in that kind of stratosphere.  And discovery, I imagine, is going to be just fascinating in this case, as you kind of  get to peek behind the curtain for at least Facebook and YouTube.  But I want to ask you, too, about, you know, kind of what direction you think the defense  will go, what they’ll hang their hat on as being why they’re not liable.

 But that seems, you know, harm seems awfully difficult to prove.  Like this person who’s bringing this case says that the social media addiction led to  anxiety, depression, and body image issues.  How hard is that going to be for them to link any of those directly to social media when  you consider all of the other factors in one’s life that could be blamed for those things?  Absolutely.

 And that’s exactly what I’ve read their defenses have been is, look, you know, it’s  awful that this has happened to this person, but, you know, we can’t control it.  I suspect that there would – like, if we bring any kind of case, as the plaintiff,  we bear the burden of proof, okay?  And so in a criminal trial, that’s the beyond a reasonable doubt.  Well, in a civil trial like this, it’s by a preponderance of the evidence.

 That just means that more likely than not what they say happened, happened.  And so what the plaintiff will have to do is put on evidence that then links the damage  to – we call it a proximate causation.  It’s a fancy way of just saying that it caused the injury, okay?  So your bad conduct caused this injury.

 And some things are straightforward, like personal injuries of, you know, such and such  happened and I broke my arm.  Okay, this wreck caused this injury.  But here, it gets a little bit more difficult, and that’s what the social media folks  are arguing is, you know, you got to prove it, and they do.

 And if they don’t, then the judge is there to say, okay, when the plaintiff says, Your  Honor, the plaintiff rests, that concludes their case and their presentation of evidence  offensively.  And so if you don’t meet your burden, at that point, the judge has the ability to throw  it out.  Wow.

 So if you’re a tire manufacturer, this is really the exact opposite, right?  You’re a tire manufacturer, your tires now have a recent history, they’re blowing  out, people are getting in accidents on the highway, that’s black and white, right?  Well, I would think so, yes.  But like Dalton said, this is so hard.  It’s going to be – they’re going to have to be very good at what they do to make this  stick, it seems to me.

 Yeah, but too, you know, this is so many years after this conversation began, I’m sure  the plaintiff and their attorneys will be leaning heavily on a lot of studies that  have been done over the last decade.  And then as either the plaintiff or the defense representation, how do you kind of sort through  some of these studies?  I’m sure some carry more weight than others, but they’ll fight out each one of them if  that’s what ends up coming to the trial.  Yeah, and so the way that you do that typically is through expert witnesses, right?  And so the author of these studies or the clinician who studied whatever probably would  hear from the plaintiff’s treating physician, and that’s all part of the plaintiff’s  case-in-chief where they’re putting on this evidence.

 And, you know, they’ll call adverse witnesses and always tell folks that from the plaintiff’s  standpoint, there’s two buckets that have to get filled up – liability, who did what  wrong, and that’s where they’ll do things like call Mark Zuckerberg and say, you know,  you said this in this email and you knew this.  Then the second bucket is what damages were caused from it.  And so that’s where the expert witness testimony is going to come in and that sort of thing.

 You know, that’s a factual defense.  They also are asserting a legal defense, and that is essentially under something called  Section  of the Internet Decency Act, which goes back to .  And that’s the law that I mentioned earlier where, you know, Facebook can’t get sued  for what Dan’s posting there, but that’s what they’re not – usually that’s what  dismisses the lawsuit.

 It never makes it to trial because you’re saying, okay, well, look, you’ve got this  harmful content, and this law says that we can’t be held liable for it.  And that’s true.  There’s very few things that Congress said could be regulated like that, like if it’s  copyrighted material, that has to go.

 If it’s, you know, something that’s obscene, they can take that off.  But otherwise, there’s no content regulation on it.  Yeah, and Section , that’s been a hot topic point for years now.

 A lot of folks want it repealed, and they’ve fought it out in the halls of D.C.  We’re going to take a quick break, and when we get back, I too want to talk about this  just jury selection and the importance and what goes into that, and also talk about that  peek behind the curtain, kind of what these companies that did not settle, what they stand  to potentially, you know, give up or lose as this trial continues.  Bryan Comer with the Bias and Comer Law with us this morning.  There have been some settlements already, true, right?  That’s right.

 We’ll get into that.   Dan and Dalton, FM Talk  in Mobile Mornings.  Turn up your voice on the text line –.

 Now, back to Mobile Mornings with our friend Bryan Comer.  Bryan Comer with the Bias and Comer Law in with us this morning, again discussing a big  case in the national media, and it could change the way social media looks going forward.  This week in L.A., Bryan, with this social media jury trial, they are, I guess, in the  process of selecting the jury.

 How big of a deal is that going in for both the plaintiffs and the defense?  Oh, it’s huge.  You know, the case will be tried to the jury, and like I said, there were legal issues that  the judge decides, but ultimately the jury is the trier of fact.  And, you know, some jurisdictions, a lot of jurisdictions do it differently, but in our  experience, it’s not so much jury selection, but jury exclusion, because you get to ask  the jurors questions.

 It’s the only time we, as the lawyers, get to talk directly to the jury until, like,  closing argument, opening statement, closing argument.  But that’s the only time that we get interaction from the jury.  You know, who are you?  What do you believe in?  What are your thoughts on this and this and this?  And picking the jury is critically important.

 And that’s not to say that there’s good jurors and that there’s bad jurors.  Some jurors, you know, we all come through life with our experiences that shape the  way that we look at things.  And so some jurors might not be the best jurors for certain cases.

 You know, some jurors might be better suited for other cases.  And that’s the whole point, when the lawyers ask the questions to then say, okay, who do  we want on the jury?  And that’s what we do, you know, when we try cases.  We look at all the data and then say, okay, what kind of juror is it that we want?  What kind of juror might not be the best?  Yeah, and you get better at that over time, I’m sure.

 So as an attorney, what can you learn as this case goes forward?  As an attorney, what can you take away from it?  And what do you think you might know when it’s over with that you weren’t quite as aware  of before the trial begins?  Well, so that’s a good question.  And I’m always trying to learn constantly in what I’m doing to become better and be  better for my clients.  And so one of the things is the way that they’re approaching this really difficult legal issue,  right?  So Section  has been around since .

 And like I said, the vast majority of cases get swatted away.  Well, they, through their research and the development of their case, they were able  to survive the challenge and get it to the jury.  That’s not to say that the jury won’t pour them out at the end and say, look, you couldn’t  meet your burden for the reasons we discussed with the damages or whatever, and say, okay,  we find in favor of the defendant.

 But anytime you see really good lawyers doing their job well, that’s something that I always  try to watch so that I can learn and grow from.  The fact that Zuckerberg will be on the stand, and I imagine there’s going to be a lot that  comes from this trial.  A lot of stories that come out that aren’t necessarily about this, but through discovery  came out about Meta and YouTube.

 Snap and TikTok settled.  Not exactly sure the exact reasoning behind that.  What do you think, if you were the defense, from a trial lawyer perspective, what do you  think they are most scared of happening here?  Probably, if I was in their shoes, I would be most scared of the inflammatory information  that’s been exchanged, potentially inflammatory information that’s been exchanged in discovery  becoming public.

 So once the trial starts, once exhibits get introduced into evidence, that’s now in the  public record.  And so I don’t know if the judge is going to let video or something in the courtroom,  but it becomes in the public record then.  And so then there’s the information, the damaging information getting out.

 But then also the financial impact that this would have, if they get hit with a big verdict  that they would have to pay, if when their advertisers see how bad some of the conduct  is, if the allegations are true, they may pull out advertising dollars.  It could have a ripple effect.  But then on the opposite end of it, it could have a positive change so that if, again,  what the plaintiffs are alleging in these lawsuits are true, then it’s going to help  society.

 I mean, because like I was saying in my conversation with Virginia at the Drug Education  Council, the schools that she’s seen where social media has been removed from the children  haven’t been able to access it.  They’ve shown a marked improvement and mood, and there’s a direct relationship there.  And so those are the considerations.

 And so when a company or a defendant or a plaintiff is deciding, do we need to settle  this case?  There’s a lot that goes into that.  There’s financial considerations.  There’s public relations considerations.

 Hey, we don’t want to be a part of this anymore.  Let’s get out.  You know, we watch a lot of football.

 And sometimes if you have a timeout or two to burn, last play of the game, you’ll see  what the defense is running and then call a timeout and change your direction.  Is there a chance that once this starts, that Facebook and YouTube will look at the  landscape and decide to settle like Snap and TikTok did?  Yeah, sure.  I mean, and there’s always an opportunity.

 Well, I say there’s an opportunity.  They could always approach the other side and say, look, we want to settle too.  And I’m sure since you’ve got two other social media platforms who have settled, I’m  sure there have been settlement discussions.

 Anytime that happens, they’re going to be confidential.  That’s going to be one of the things that defendants insist on is confidentiality.  But, you know, if you read their comments that they’re saying publicly, it sounds like,  you know, they’re willing to take it to the mat.

 And we’ll see if they actually do.  That’s another consideration altogether, too.  And thanks for coming in and explaining what’s going on.

 Really, really a fascinating trial.  It’s going to be going on for maybe a few weeks.  Yeah, I think five or six, they said.

 It’s great.  Great information, Bryan.  Tobias and Comer Law.

 You can find them at TobiasComerLaw.com and their number –.  And I’ll be back out of y’all’s office here soon for another podcast.  More Mobile Mornings on the way next.