Tauber is a “go-to star” and “a brilliant … legal thinker” who is “an expert written and oral communicator.”The Legal 500 United States (2012)
Andrew Tauber is a partner in Mayer Brown’s Supreme Court & Appellate practice who, according to The Legal 500 United States (2014), uses his “high-octane brain power to deliver superior advocacy.”
Andy has been named a D.C. appellate “Litigation Star” three years in a row by Benchmark Litigation; has been designated a nationwide “noted practitioner” in the areas of rail transportation and product-liability defense by Chambers; is hailed as a leading railroad lawyer by Best Lawyers in America; and has been repeatedly recognized in Legal500 USA for product-liability defense in the pharmaceutical and medical-device area.With substantial experience in matters of federal preemption, Andy devotes much of his practice to cases involving the medical-device, railroad, automotive, and consumer-financial-services industries, but has successfully briefed and argued a wide variety of cases for a wide variety of clients on issues as diverse as personal jurisdiction over corporate defendants, federal jurisdiction in product-liability cases, second-hand asbestos claims, antitrust liability for pre-bankruptcy conduct, and First Amendment protections for commercial speech.
A co-author of the treatise Federal Appellate Practice, Andy regularly represents clients in the US Supreme Court, the various US Courts of Appeals, and state appellate courts throughout the country.
In addition to his purely appellate work, Andy also works closely with trial lawyers to craft and preserve legal arguments for later appellate review by drafting motions to dismiss, motions for summary judgment, motions in limine, and proposed jury instructions. Recognizing the importance of issue preservation, clients frequently call on Andy to brief and argue motions to dismiss and other critical motions.
Andy serves as national coordinating counsel for clients with recurring legal issues that implicate unsettled areas of law (such as the preclusion of FELA claims and the preemption of product-liability claims). As coordinating counsel, Andy helps clients develop their litigation strategy, prepares materials for use by the clients’ other outside counsel, and reviews briefing by other outside counsel to ensure consistency across the clients’ litigation portfolio.
On behalf of medical device manufacturers, Andy has successfully briefed and argued a wide range of product-liability issues, including: federal preemption; federal jurisdiction; personal jurisdiction; statute of limitations; negligence per se; application of Restatement (Second) of Torts § 402A cmt. k; and, application of state consumer protection laws.
In 2013, Andy was awarded the Defense Research Institute’s G. Duffield Smith Outstanding Publication Award for his article, A Powerful Tool to Wield Early: How to Argue Medical Device Preemption.
On behalf of railroads, Andy has successfully briefed and argued a numerous issues under FELA, the LIA, the FRSA, and ICCTA, including: preclusion of FELA claims; LIA, FRSA, and ICCTA preemption; apportionment of damages; and, admissibility of evidence.
Building on his extensive litigation experience, Andy also works with clients and industry groups on legislative matters. He has drafted statutory language, prepared briefing papers, testified before a legislative committee, and met with individual legislators and their staffs. On more than one occasion he has helped persuade legislative bodies to reject bills that would have adversely affected his clients.
Prior to joining Mayer Brown in 2005, Andy spent five years with a major New York firm, before which he served as a law clerk to the Hon. John G. Koeltl of the United States District Court for the Southern District of New York. He is fluent in German.
- Conklin v. Medtronic, Inc., 431 P.3d 571 (Ariz. 2018). In what the American Lawyer’s Litigation Daily described as a “a big win” for the medical-device industry, persuaded state supreme court that—contrary to Stengel v. Medtronic Inc., 704 F.3d 1224 (9th Cir. 2013) (en banc)—Arizona law does not recognize, and federal law preempts, failure-to-warn claims predicated on a manufacturer’s purported failure to submit adverse-event reports to the FDA.
- Wagner v. Terumo Med. Corp., 2018 WL 6075951 (S.D. Cal. 2018). Won dismissal of product-liability suit on jurisdictional grounds.
- North Coast Railroad Authority v. Friends of the Eel River, 138 S. Ct. 1696 (2018). Retained to seek U.S. Supreme Court review of a California Supreme Court decision holding that the ICC Termination Act does not preempt application of the California Environmental Quality Act to a publicly owned railroad.
- Cerveny v. Aventis, Inc., 855 F.3d 1091 (10th Cir. 2017). Authored amicus brief on behalf of industry group which helped persuade court that failure-to-warn claims against a pharmaceutical manufacturer were impliedly preempted by federal law.
- Norabuena v. Medtronic, Inc., 86 N.E.3d 1198 (Ill. Ct. App. 2017). Convinced appellate court that a state-law failure-to-warn claim predicated on a manufacturer’s alleged failure to submit adverse-event reports to the FDA is expressly preempted by federal law, and that the plaintiff’s complaint had failed to adequately state any cognizable claim.
- Aaron v. Medtronic, Inc., 209 F. Supp. 3d 994 (S.D. Ohio 2016). In consolidated action involving over 300 plaintiffs, persuaded court to dismiss all claims arising from alleged off-label promotion of a medical device on multiple, independent grounds, including express and implied preemption.
- Caplinger v. Medtronic, Inc., 136 S. Ct. 796 (2016). Convinced Supreme Court to not disturb appellate decision holding state-law claims against a medical-device manufacturer preempted by federal law.
- McAfee v. Medtronic, Inc., 2016 WL 2588807 (N.D. Ind. 2016), on reconsideration of 2015 WL 3617755 (N.D. Ind. 2015). Obtained complete dismissal of last remaining claim on preemption grounds after having previously won dismissal of all other claims.
- Thorn v. Medtronic, Inc., 624 F. App’x 433 (6th Cir. 2015). Successfully defended trial court’s denial of motion for reconsideration of order dismissing all claims arising from alleged off-label promotion of a medical device.
- Latimer v. Medtronic, Inc., 2015 WL 5222644 (Ga. Super. Ct. 2015). Convinced court to dismiss product-liability claims on preemption, pleading, and state-law grounds.
- Byrne v. CSX Transp., Inc., 617 F. App’x 448 (6th Cir. 2015). Successfully defended grant of summary judgment to defendant railroad on preemption grounds, convincing court that evidence offered in support of summary judgment was admissible.
- Otis-Wisher v. Medtronic, Inc., 616 F. App’x 433 (2d Cir. 2015). Successfully defended dismissal of all claims arising from alleged off-label promotion of a medical device.
- Caplinger v. Medtronic, Inc., 784 F.3d 1335 (10th Cir. 2015). Persuaded divided court to affirm dismissal of complaint on preemption and pleading grounds in first federal appellate decision in national litigation arising from alleged off-label promotion of a medical device.
- Angeles v. Medtronic, Inc., 863 N.W.2d 404 (Minn. Ct. App. 2015). In appeal directly affecting hundreds of coordinated cases, obtained unanimous ruling affirming dismissal of most claims on preemption grounds and remanding few remaining claims for consideration of defendants’ pleading arguments.
- Pearsall v. Medtronics, Inc., 147 F. Supp. 3d 188 (E.D.N.Y. 2015). Convinced court that FDCA preempted manufacturing-defect claims predicated on alleged violations of the FDA’s CGMP regulations and failure-to-warn claims predicated on alleged violations of the FDA’s adverse-event reporting regulations.
- Wood v. Medtronic, Inc., 2015 WL 5793602 (W.D.N.Y. 2015). Obtained dismissal of all claims against a medical-device manufacturer.
- Arthur v. Medtronic, Inc., 123 F. Supp. 3d 1145 (E.D. Mo. 2015). Persuaded court to dismiss misrepresentation claims as inadequately pleaded.
- Hafer v. Medtronic, Inc., 99 F. Supp. 3d 844 (W.D. Tenn. 2015). In coordinated proceeding involving master complaint filed by more than one hundred plaintiffs, secured dismissal on preemption and pleading grounds of all claims arising from alleged off-label promotion of a medical device.
- Schouest v. Medtronic, Inc., 92 F. Supp. 3d 606 (S.D. Tex. 2015). Won dismissal of all claims arising from alleged off-label promotion of a medical device.
- Byrnes v. Small, 60 F. Supp. 3d 1289 (M.D. Fla. 2015). Persuaded court to dismiss product-liability claims on preemption and pleading grounds.
- Cales v. Medtronic, Inc., 2014 WL 6600018 (Ky. Cir. Ct. 2014). Convinced court to dismiss complaint asserting claims involving alleged off-label promotion of a medical device.
- Brady v. Medtronic, Inc., 2014 WL 1377830 (S.D. Fla. 2014). Persuaded court to dismiss claims arising from alleged off-label promotion of a medical device on preemption and pleading grounds.
- Dooley v. Medtronic, Inc., 39 F. Supp. 3d 973 (W.D. Tenn. 2014). Successfully opposed remand of product-liability case removed to federal court by persuading court that it possessed substantial-federal-question jurisdiction given nature of claims and regulatory status of device at issue.
- Raborn v. Albea, 144 So.3d 1066 (La. Ct. App. 2014), aff’g 2012 WL 6600475 (La. Dist. Ct. 2012). Obtained and then successfully defended dismissal of product-liability claims on statute-of-limitations grounds.
- H.R. ex rel. Reuter v. Medtronic, Inc., 996 F. Supp. 2d 671 (S.D. Ohio 2014). Successfully opposed remand of product-liability case removed to federal court by persuading court that it possessed substantial-federal-question jurisdiction given nature of claims and regulatory status of device at issue.
- Pinsonneault v. St. Jude Med., Inc., 2014 WL 2879754 (D. Minn. 2014). Obtained summary judgment as to almost all claims arising from alleged manufacturing defect in a medical device.
- CSX Transportation, Inc. v. Pitts, 61 A.3d 767 (Md. 2013). Convinced court that claims brought under the Federal Employer’s Liability Act are subject to preclusion by the Federal Railroad Safety Act, and that, contrary to prior state-law precedent, ballast-claims in particular are precluded when they arise from ballast used to support railroad tracks. Also convinced court that, contrary to prior Maryland precedent, railroads facing claims for future wage loss have a right to introduce statistical evidence of railroad workers’ average retirement age.
- Jenkins v. Medtronic, Inc., 984 F. Supp. 2d 873 (W.D. Tenn. 2013). Successfully opposed remand of product-liability case removed to federal court by persuading court that it possessed substantial-federal-question jurisdiction given nature of claims and regulatory status of device at issue.
- Lawrence v. Medtronic, Inc., 2013 WL 4008821 (Minn. Dist. Ct. 2013). Persuaded court to dismiss claims arising from alleged off-label promotion of a medical device on preemption and pleading grounds.
- Pinsonneault v. St. Jude Med., Inc., 953 F. Supp. 2d 1006 (D. Minn. 2013). Convinced court to deny plaintiffs leave to amend on ground that proposed amended claims were preempted and therefore futile.
- Crowther v. Consolidated Rail Corp., 680 F.3d 95 (1st Cir. 2012). Persuaded court that evidence of the plaintiff’s receipt of disability benefits was admissible to prove that the plaintiff was malingering.
- Walker v. Medtronic, Inc., 670 F.3d 569 (4th Cir. 2012), cert. denied 133 S. Ct. 162 (2012). Convinced court of appeals that state-law claims arising from the alleged malfunction of an FDA-approved medical device are preempted by the Medical Device Amendments to the Food, Drug and Cosmetic Act, and then persuaded Supreme Court not to review that decision.
- Simpkins v. CSX Transp., Inc., 965 N.E.2d 1092 (Ill. 2012). Persuaded state supreme court that plaintiff had failed adequately to allege essential element of tort claim arising from alleged second-hand exposure to asbestos.
- Tam Travel, Inc. v. American Airlines, Inc., 131 S. Ct. 896 (2011) (mem.). Successfully opposed petition for a writ of certiorari in an antitrust case involving pleading standards under Twombly and the discharge of claims arising from alleged pre-bankruptcy conduct.
- Gautieri v. CSX Transp., Inc., 2010 WL 2347059 (Pa. Super. Ct. 2010). Persuaded state appellate court to overturn a $1,400,000 verdict based on evidentiary and instructional errors in a case brought under the Federal Employers’ Liability Act.
- Yuma Anesthesia Medical Services LLC v. Fleming, 130 S. Ct. 3468 (2010) (mem.). Retained to obtain Supreme Court review of Ninth Circuit decision holding that independent contractors are covered by the employment discrimination provision of the Rehabilitation Act.
- Standard Insurance Co. v. Lindeen, 130 S. Ct. 3275 (2010) (mem.). Authored amicus brief on behalf of several entities urging the Supreme Court to review, and ultimately reverse, a decision in which the Ninth Circuit held that Employee Retirement Income Security Act (ERISA) does not preempt state laws banning so-called discretionary clauses in insurance policies that fund ERISA-governed benefit plans.
- Nickels v. Grand Trunk Western R.R., Inc., 130 S. Ct. 1136 (2010) (Mem.). Successfully opposed petition for a writ of certiorari in case involving the Federal Railroad Safety Act’s preclusion of claims brought under the Federal Employers’ Liability Act.
- In re Travel Agent Comm’n Antitrust Litig., 583 F.3d 896 (6th Cir. 2009). Obtained and successfully defended on appeal dismissal of antitrust claim arising from alleged pre-bankruptcy conduct of restructured airline.
- Enten v. District of Columbia, 675 F. Supp. 2d 42 (D.D.C. 2009). Represented individual wishing to sell political buttons on city sidewalks in suit alleging First Amendment and statutory violations.
- Greenwell v. Parsley, 130 S. Ct. 64 (2009) (Mem.). Represented individual in case presenting the question of whether a public employee has a First Amendment right to run for elected office.
- Cooper v. CSX Transp., Inc., decided sub nom. Nickels v. Grand Trunk Western R.R., Inc., 560 F.3d 426 (6th Cir. 2009). Successfully argued case on behalf of two defendant railroads, persuading the court that regulations issued under the Federal Railroad Safety Act preclude certain tort claims brought under the Federal Employers’ Liability Act.
- General Motors Corp. v. Grenier, 981 A.2d 524 (Del. 2009). Obtained remand on behalf of defendant automobile manufacturers in appeal of multimillion dollar jury verdict in asbestos litigation that presents the question of what type of evidence, if any, is admissible under Daubert to prove causation when extensive epidemiology unanimously demonstrates that persons such as plaintiff are not at increased risk from the specific substance in question.
- Wyeth v. Levine, 129 S. Ct. 1187 (2009). Authored amicus brief on behalf of Product Liability Advisory Council and U.S. Chamber of Commerce that helped convince the Supreme Court to grant review in a case presenting the question of whether FDA approval of a prescription drug label impliedly preempts state law tort claims challenging the adequacy of that label, and authored an amicus brief on behalf of the Chamber at the merits stage arguing that FDA approval of a drug label does in fact preempt such claims.
- In re Medtronic, Inc. Sprint Fidelis Leads Prods. Liab. Litig., 592 F. Supp. 2d 1147 (D. Minn. 2009). Co-authored briefs on behalf of defendant manufacturer in multidistrict litigation that persuaded court to dismiss with prejudice state-law fraud and product liability claims relating to an FDA-approved medical device on the ground that such claims are either expressly or impliedly preempted under the Food, Drug, and Cosmetic Act.
- Riegel v. Medtronic, Inc., 552 U.S. 312 (2008). As co-counsel to medical device manufacturer, persuaded the Supreme Court that the Medical Device Amendments to the Food, Drug, and Cosmetic Act expressly preempt certain state law tort claims arising from the use of a Class III medical device that had received FDA premarket approval.
- Galarneau v. Merrill Lynch, Pierce, Fenner & Smith Inc., 504 F.3d 189 (1st Cir. 2007). Obtained reversal of multimillion dollar punitive damage award in defamation action brought by former employee.
- Coffin v. Bowater Inc., 501 F.3d 80 (1st Cir. 2007). Obtained and then successfully defended summary judgment in employment benefit class action brought by retirees of a divested subsidiary.
- Teleglobe USA, Inc. v. BCE, Inc., 493 F.3d 345 (3d Cir. 2007). Authored appellate brief concerning the operation of the attorney-client privilege in the parent-subsidiary context.
- Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006). Represented petitioner challenging retroactive application of federal immigration statute.
- Jones v. Hulick, 449 F.3d 784 (7th Cir. 2006). Appointed by court to represent prisoner in habeas corpus proceeding.
- Penry v. Johnson, 532 U.S. 782 (2001). Successfully challenged constitutionality of a Texas death sentence.
Yale Law School, JD, Editor, Yale Law Journal
Massachusetts Institute of Technology, PhD
Wesleyan University, BA
- District of Columbia
- New York
- US Supreme Court
- US Court of Appeals for the First Circuit
- US Court of Appeals for the Second Circuit
- US Court of Appeals for the Third Circuit
- US Court of Appeals for the Fourth Circuit
- US Court of Appeals for the Fifth Circuit
- US Court of Appeals for the Sixth Circuit
- US Court of Appeals for the Seventh Circuit
- US Court of Appeals for the Ninth Circuit
- US Court of Appeals for the Tenth Circuit
- US Court of Appeals for the Federal Circuit
- US District Court for the District of Columbia
- US District Court for the Southern District of New York
- US District Court for the Eastern District of New York
- US District Court for the Western District of Michigan
- US District Court for the Western District of Tennessee
- US District Court for the Western District of New York
- Edward Coke Appellate Inn of Court
- National Association of Railroad Trial Counsel