As such, we have a wealth of experience to draw upon, the ability to staff cases on a national level, and the ability to provide "one-stop shopping" for clients who require legal assistance on the wide variety of issues that are typical of significant mass tort litigation.
We regularly serve as lead counsel for significant, precedent-setting cases, including consolidated mass trials involving thousands of alleged plaintiffs. Our experience encompasses claims associated with either products or facilities, including alleged toxic releases. We have been involved in the full array of toxic tort claims, including cases involving asbestos, silica, heavy metals, silicone implants, pharmaceuticals, and polybutylene plumbing. Similarly, we are handling a large number of personal and property claims associated with particular facilities, such as air and water emissions from industrial/chemical facilities; releases associated with manufactured gas plant waste products, landfills, and other facilities; rail yard by-products and residues; and airline disinsectant claims.
We are sophisticated and successful in keeping junk science out of the courtroom and in developing and presenting science-based defenses on behalf of our clients, including supervising the re-creation and testing of products and failure analyses. We are familiar with the nation's leading experts in the relevant fields, including toxicologists, epidemiologists, inhalation toxicologists, material scientists, neurologists, pathologists, pulmonologists, microbiologists, mechanical, biotech, chemical, metallurgical and environmental engineers, and industrial hygienists.
Toxic torts typically involve spin-off satellite issues: derivative and securities fraud claims, bankruptcy proceedings, and insurance recovery, in addition to potential defense of governmental actions. We offer "one-stop shopping" that builds a cohesive strategy across multi-disciplinary teams, avoids duplication of effort, and maximizes cost savings.
Our clients over the years include companies from a variety of industries, giving us a broad base of experience in toxic tort cases from which to draw. We have considerable experience managing national litigation effectively, including coordinating traditional and electronic discovery, using multi-district litigation procedures, utilizing court-appointed experts, hiring and supervising teams of regional and local counsel, and creating and implementing national defenses. Through our experiences, we have established a network of leading local defense firms that work with us on a regular basis in implementing national strategies. We also have significant experience in handling important cases in venues that are among the nation's most hostile to defendants, such as Madison, St. Clair and Cook Counties, Illinois; Brazoria County, Texas; West Virginia; Philadelphia, Pennsylvania; Atlantic City, New Jersey; New Orleans, Louisiana; and the California Bay Area.
We also have substantial experience negotiating with, and litigating against, the federal and state agencies that often become involved in significant toxic tort and product claims, including the EPA, FDA, OSHA, NIOSH, ATSDR, and CDC. State enforcement actions have increasingly become an issue and we have extensive experience and contacts with many of the active attorneys general. For example, our firm's former Chairman, Ty Fahner, is a past President of the association of State Attorneys' General.
In addition to our trial experience, our appellate group - widely acknowledged as the premier such practice in the United States - has briefed and argued cutting-edge issues directly impacting toxic tort litigation in appellate courts and the United States Supreme Court, including class certification and mass consolidation issues, pre-emption, the standards for the admissibility of scientific evidence, and punitive damages. Mayer Brown has served as national counsel to a number of clients facing mass tort, multi-jurisdictional, toxic tort litigation.
Below are a few examples of the subjects we have addressed in our successful work in this area.
- Toxic Tort Litigation Appellate Practice
- Chemical / Manufacturing Plant Water and / or Air Emissions
- Heavy Metals
- Food Recalls / Litigation
- Ethylene Oxide
- Dumps / Landfills
- Railroad - Related Emissions
- Manufactured Gas Plants
- Hydrochloric Acid
- In Vitro Medical Devices
- Breast Implants
- Admissibility of Expert Opinion
- Punitive Damages Practice
- Federal Preemption
- Governmental Enforcement / Governmental Relations
Toxic Tort Litigation
Mayer Brown has extensive experience in pharmaceutical product litigation. We have served as lead counsel in high-profile, precedent-setting cases in state and federal courts around the country at both the trial and appellate levels. We have handled mass litigation involving thousands of individual plaintiffs as well as individual trials on the local level, and our experience spans personal injury, consumer fraud and deceptive practices, class action, medical monitoring, direct to consumer marketing, antitrust, fraud, and patent claims. Our strength as a firm comes from our ability to draw on the breadth and depth of our resources to devise creative strategies for implementing solutions to litigation challenges.
On the national level, we serve as counsel to a major pharmaceutical company involved in mass personal injury litigation involving Phenylpropanolamine (PPA) and Parlodel. In addition to developing and implementing overall litigation strategies, we handle various aspects of the pre-trial, trial, and appellate activities in individual cases. We also work with a network of local and regional counsel and, where appropriate and where cost savings warrant, we push work down to lower-cost providers and take on a more supervisory role. To date, we have successfully resolved each case prior to trial, including several significant judicial victories: Castillo v. Novartis AG, et al, Case No. C02-5133RSM (W.D. Wa. Dec. 17, 2004), Hollander v. Sandoz Pharm. Corp. et al., 289 F.3d 1193 (10th Cir. 2002).
We also know all too well both the pitfalls and benefits involved in settling mass litigation. We argued Amchem Products, Inc. v. Windsor before the United States Supreme Court, the seminal case outlining the parameters of permissible class action settlement. We have also counseled pharmaceutical companies on strategies for implementing national settlements, including methods for rooting out fraudulent claims that have been filed with settlement trusts.
On the regional and local levels, we have handled the day-to-day trial work on claims involving HRT products, dietary products, cold medications, heart valves, and in vitro immunoassays. These cases all raise issues regarding the learned intermediary doctrine, medical monitoring, the duty to warn, and FDA labeling, in addition to complex and technical causation issues.
We have also represented clients in a wide range of pharma-related litigation beyond traditional personal injury cases. The plaintiffs' bar has increasingly turned its attention to consumer class actions after the $10 billion judgment against Philip Morris in Madison County, Illinois (a case that our firm, among others, is handling on appeal). We represent pharmaceutical companies in the Synthroid marketing litigation, which involves dozens of federal and state cases (including an MDL) brought by first and third-party payors, as well as numerous state attorneys general. The cases involve all aspects of FDA drug regulation from new drug applications to labeling, placement in the Orange Book, and issues of bioequivalence, as well as federal and state antitrust issues, RICO, complicated market fraud theories, and class action law. We also represent clients in the Vitamins Litigation and have handled direct to consumer marketing state administrative actions (and litigation) involving weight-loss drugs.
In addition to our pre-trial and trial work, our familiarity with the way legal issues play out after trial is also an important element of our experience. Indeed, in the plaintiff-friendly jurisdictions where mass torts are often brought, preserving and pursuing appellate remedies during trial become all the more critical. Our appellate group is widely recognized as among the best, if not the best, in the country. Our lawyers have briefed , and in many cases argued, virtually all of the cutting edge legal issues relevant to pharmaceutical mass torts in the United States Supreme Court: Daubert, punitive damages, preemption and the like. We have also served as lead appellate counsel in many high profile pharmaceutical appeals, including the on-going Texas appeal of the $1 billion Fen-Phen judgment against Wyeth. Under our approach to mass litigation, we involve our appellate attorneys from the outset to search for creative legal solutions including aggressive and imaginative motion practice and appellate strategies designed to change the law in ways that will benefit our clients.
Though asbestos litigation is the longest running mass tort in the United States, analysts believe that less than half of the likely claims have been asserted to date. With over 600,000 claims pending, over 6,000 defendants having been named in asbestos suits, and estimates placing the overall cost for asbestos litigation at between $200 and $265 billion, the size and scope of asbestos litigation appears likely to continue to grow, barring significant legislative reform. As the number of bankruptcies continues to increase (over 25 in the last two years alone, and over 60 in the history of asbestos litigation), plaintiffs are likely to continue expanding the pool of defendants.
We serve as national, regional and trial counsel in this high-stakes litigation. As national counsel, we oversee a network of regional and local counsel handling the day-to-day tasks in the defense of thousands of asbestos cases, as well as trying particular high-stakes cases. By coordinating discovery, motion practice, resource allocation, preparation of general trial outlines, selection and preparation of experts, and trial and settlements, we ensure a consistent approach and implementation of effective strategies nationwide.
Because the adverse health effects of asbestos have been, and continue to be, heavily researched, successful defense of asbestos claims requires an in-depth understanding of the existing literature and a constant effort to stay abreast of the emerging science. Our asbestos team has a thorough understanding of these issues and has developed relationships with leading experts in multiple disciplines (toxicology, industrial hygiene, epidemiology, regulatory history, pathology, pulmonology and radiology) to help present an effective defense. We also have substantial experience working with material scientists, industrial hygienists and engineers in remanufacturing historical products and conducting exposure testing to develop defenses based on science and hard data.
In addition to the complexity of asbestos litigation, the long history of asbestos use and the evolution of knowledge over time mandates careful management and in-depth knowledge of the potentially huge volume of paper and information that companies may have generated over multiple decades. We have extensive experience handling massive volumes of discovery requests and documents and work to control costs, using the latest document and knowledge management and processing techniques, while ensuring the efficient collection, distribution and use of information developed through the discovery process.
As lead trial counsel, we have represented clients in consolidated trials involving thousands of claims in both West Virginia and Virginia, as well as in particular cases in Madison County, Illinois, Los Angeles, San Francisco, and Seattle. In the liability phase of the West Virginia mass consolidated asbestos trial during the Fall of 2002, which involved over 8,000 plaintiffs, we secured a directed verdict in favor of Amchem Products, Inc. at the close of plaintiffs' presentation of evidence. Also during the Fall of 2002, our trial efforts in the 1,300-plaintiff Virginia mass consolidation trial led to a very favorable resolution just prior to the completion of the trial.
Chemical / Manufacturing Plant Water and / or Air Emissions
We served as lead counsel to a major United States chemical corporation involved in litigation in Germany relating to the manufacture of a chemical with allegedly toxic side effects. We represented our client in numerous evidence-securing and complaint-related proceedings in various state and appellate courts in Germany, facilitated with governmental regulatory authorities, organized and developed a team of experts, and developed and implemented a strategy for settling the litigation expeditiously and on favorable terms.
We regularly defend individual and class action claims against companies for personal injuries based on actual or threatened exposure to hazardous substances, including claims for "fear of" injuries and related requests for medical monitoring, for property damages, including diminution of property value, and consequential and punitive damages. These claims usually involve complex medical/technical matters and may coincide with OSHA or NIOSH investigations, which investigations we have handled in a number of cases.
For example, we are currently representing an Illinois chemical industry client in a series of individual and class action claims alleging medical injuries and property damage due to historic emissions from manufacturing operations (in conjunction with "wall-to-wall" OSHA and environmental inspections).
We are representing a New Jersey chemical company in a class action alleging that various chemicals supplied by the company caused various kinds of cancer.
We represented a Pennsylvania heavy industrial manufacturer in consolidated cases alleging medical injuries due to exposure to various substances, including cadmium and fluorides (in conjunction with NIOSH investigation and an epidemiologic report).
We represented a Wyoming chemical company in class action claims alleging exposure to toxic fumes over long periods resulting in personal injury, fear of cancer and property value diminution.
We represented a Texas chemical company in a massive toxic tort suit brought by steel company employees against all suppliers of alleged toxic materials to the plant.
We serve as lead counsel in mass tort litigation against a Chicago-area company involving mercury spills in over 1,000 homes that has received national media attention. We have represented companies in a variety of cases involving lead, cadmium, uranium, and insecticide.
We represent a major airline in a putative class action alleging injuries from disinsectant procedures employed for certain international flights. In addition, as counsel for the American Farm Bureau Association, we have handled a variety of matters involving insecticide use and regulation.
With the introduction of legislative initiatives that could significantly impact asbestos litigation, there has been a dramatic increase in the size and scope of silica litigation. Plaintiffs' firms have increasingly devoted lawyers and resources to developing a silica practice, and as a result, silica filings are likely to rise regardless of the outcome with respect to federal asbestos legislation
Mayer Brown serves as national, regional, and trial counsel in this high-stakes litigation, representing clients in jurisdictions throughout the United States. Building upon our extensive experience in asbestos litigation and, generally, our mass tort litigation, we are responsible for developing a national silica defense with respect to both product claims and premises claims. To ensure that the defense is implemented consistently and effectively, we also oversee a network of local counsel handling the day-to-day tasks in the defense of thousands of silica cases, as well as trying particular high-stakes cases. Coordinating discovery, motion practice, resource allocation, preparation of general trial outlines, selection and preparation of experts, and trial and settlements, we ensure a consistent approach and implementation of effective strategies nationwide.
Food Recalls / Litigation
We are representing a large privately-held company in connection with litigation and customer claims arising out of the recall of certain ready-to-eat poultry products allegedly contaminated with listeria monocytogenes.
We represent several major chemical manufacturers in litigation arising out of alleged exposure to ethylene oxide ("EO").
We are national counsel on mold matters for a major real estate investment trust, supervising and handling mold claims on a national basis, and represent a variety of other clients in various matters involving allegations associated with mold.
Dumps / Landfills
We represent and have represented a variety of entities in defending claims arising from alleged exposures emanating from landfills and other disposal sites.
We represent one of the major railroads in their significant toxic tort claims, including claims arising from the disposal of railroad wastes involving alleged municipal water contamination that have included significant punitive damages issues.
Manufactured Gas Plants
We represent major utilities, in Illinois and Maine, in a large number of putative class action and individual claims relating to historic coal tar and associated emissions from manufactured gas plants.
We represent major refiners in claims involving exposure to water allegedly containing MTBE.
We represent a major chemical manufacturer in novel claims alleging injury from exposure to HCL.
In Vitro Medical Devices
We have served as lead trial counsel to a major pharmaceutical company involved in numerous individual suits in multiple federal and state court jurisdictions around the country as well as a class action suit that received national media attention regarding in vitro blood tests, successfully defending our client against all product defect claims and defeating class certification attempts.
We represented The Dow Chemical Company on a national basis in defending claims alleging injuries resulting from the implantation of breast implants manufactured by Dow Corning.
In addition to our trial litigation experience, our appellate practice is second to none and has pioneered challenges to the admissibility of expert opinions and excessive punitive damages awards in toxic tort cases at both the trial and appellate levels.
Admissibility of Expert Opinion
Mayer Brown has special expertise in excluding proposed expert testimony pursuant to the "junk science" principles enunciated in Daubert and its progeny and has had success in both the trial and appellate levels in this regard. Mayer Brown lawyers have participated in all three post-Daubert Supreme Court decisions that have further shaped the controlling law on the use and misuse of experts in the federal courts.
In General Electric Co. v. Joiner, 522 U.S. 136 (1997), we wrote an amicus brief in support of General Electric's position--which the Court adopted--that an expert must be able to articulate how his or her conclusion follows from the methodology that he or she used in forming an expert opinion.
In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), we were co-counsel for the petitioners, drafted all of the Supreme Court briefs, organized amici in support of our client's position, and assisted co-counsel in preparing for the argument. Our client successfully persuaded the Court to extend the Daubert gatekeeping function to all expert testimony that is proffered under Federal Rule of Evidence 702.
Finally, in Weisgram v. Marley Co., 528 U.S. 440 (2000), we wrote an amicus brief in support of the respondent, a company that convinced the Court to affirm a judgment in its favor following the exclusion on Daubert grounds of expert testimony.
We have had significant successes in Daubert motions in the federal courts. In Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039 (8th Cir. 2000), the Eighth Circuit reversed a $142 million antitrust judgment against our client and entered judgment in our client's favor, holding that the district court erroneously admitted expert testimony on damages in support of plaintiffs' Sherman Act §§ 1 and 2 claims and that without the expert testimony plaintiffs could not carry their burden of proof.
More recently, in another major antitrust case, we persuaded a federal district judge to grant in large part motions in limine attacking the plaintiffs' proposed experts and to deny in its entirety plaintiffs' motion attacking our client's experts on Daubert grounds. Menasha Corp. v. News America Marketing In-Store, Inc., 238 F. Supp. 1024, 1029-31 (N.D. Ill. 2003), appeal docketed, No. 03-1302 (7th Cir.). Plaintiffs appealed the grant of summary judgment that was aided by the Daubert rulings, but chose not to directly challenge those rulings.
In an earlier case in which we represented the United States Golf Association we convinced the district court to exclude on Daubert grounds a proposed "well-credentialed expert who employ[ed] an undisclosed methodology to arrive at disclosed opinions." Olinger v. United States Golf Ass'n, 52 F. Supp. 2d 947 (N.D. Ind. 1999). Plaintiff did not appeal the Daubert ruling.
Punitive Damages Practice
We represent numerous business defendants in punitive damages litigation in federal and state courts around the country, both at the trial and appellate levels. In this capacity, we regularly assist clients in all stages of punitive damages litigation, from developing defenses and drafting motions in limine to assisting with post-trial motions and handling appeals. We have briefed numerous high-profile Supreme Court cases for parties and amici that have redefined the scope of permissible punitive damages awards, including BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), Honda Motor Co. v. Oberg, 512 U.S. 415 (1994), and State Farm Mut. Auto Ins. Co. v. Campbell, 123 S. Ct 1513 (2003). As one example of our many successes in the product liability arena, in White v. Ford Motor Co., 312 F.3d 998 (9th Cir. 2002), we obtained a reversal of a $69 million punitive damages award against Ford in an appeal of a suit involving an allegedly defective parking brake.
We have drafted the Supreme Court briefs for either parties or an amicus in virtually every product liability preemption case in the Supreme Court in the past ten years, including Medtronic Inc. v. Lohr, 518 U.S. 470 (1996), Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), Freightliner Corp. v. Myrick, 514 U.S. 280 (1995), Sprietsma v. Mercury Marine, 537 U.S. 51 (2002), Geier v. American Honda Motor Co., 529 U.S. 861 (2000), Buckman Co. v. Plaintiffs' Legal Committee, 531 U.S. 341 (2001). We have also filed briefs in courts of appeals and state supreme courts relating to preemption under traffic safety, boat safety, and medical device statutes.
Governmental Enforcement / Governmental Relations
We have one of the largest governmental relations practices of any national firm, with 35 lawyers practicing in major jurisdictions across the country. Our government practice lawyers have served in influential positions in Congress, every White House Administration since Ronald Reagan, in the governors' offices from Sacramento, California to Springfield, Illinois. We have extensive experience working with federal, state, and local governmental entities on legislation and regulatory issues, as well as on negotiating resolutions of enforcement actions.
Our clients over the years include companies from a variety of industries, giving us a broad base of experience in toxic tort cases from which to draw. Some of our most recognizable clients include:
- Abbott Laboratories
- ADT, Inc.
- Chevron Chemical Corp.
- Clark Oil/Premcor
- Dow Chemical Company
- Eaton Corp.
- Eli Lilly
- General Motors
- Mortell Co.
- Nalco Chemical Co.
- Phillips North America
- Product Liability Advisory Counsel
- Schwarz Pharma
- Terra Industries
- Union Carbide
- United Airlines
- The Upjohn Company