We offer clients a cohesive, multi-disciplinary product liability practice, including litigation, due diligence and risk management, crisis management and product recalls, and regulatory compliance and investigations. No matter the size or scope of the controversy, or the product or substance involved, the lawyers in Mayer Brown’s Product Liability & Mass Torts practice have the knowledge and experience necessary to develop the most effective litigation, compliance or counseling strategy to meet the challenges faced by clients around the globe.
We draw on Mayer Brown’s global resources, often forming multi-disciplinary teams, and we have a long track record of successfully resolving complex, multi-jurisdictional product liability and mass tort claims and disputes. Our more than 75 lawyers and professionals are spread geographically throughout the major commercial and regulatory centers in the United States, Europe and Asia, and include a number of members recognized by Chambers & Partners and Legal 500 for their dispute resolution capabilities, regulatory insight and strategic counseling skills. Our global capabilities offer clients a cohesive multi-jurisdictional, multi-disciplinary product liability practice that avoids duplication of effort, enhances consistency and maximizes cost effectiveness.
Our product liability experience encompasses claims associated with products, the facilities that make them and the companies that sell them. We have been involved in the full array of product liability claims, including cases involving asbestos, silica, heavy metals, consumer products, food products, recreational equipment, pharmaceuticals and sophisticated medical devices ranging from silicone implants to defibrillator leads. In the United States, we regularly serve as lead counsel and national counsel in major precedent-setting litigation. We draw upon a deep bench of trial lawyers, a wealth of multidistrict litigation experience, and a leading supreme court and appellate practice group. Our lawyers also help clients evaluate and manage potential risks and have assisted clients in developing and implementing proactive compliance strategies, including procedures for handling product recalls. Because product recalls and liability lawsuits have major consequences in the court of public opinion, our crisis counseling includes skillful strategies for disclosure, communication and public advocacy.
Product sourcing and distribution are increasingly global endeavors and we have nearly 25 lawyers available to assist clients at key locations in Europe (including London, Brussels, Paris and Frankfurt) and Asia (including Hong Kong, Beijing, Tokyo and Bangkok). Mayer Brown is well equipped to address all issues relating to product formulation, ingredient reviews, packaging and labeling, health claim applications, and product compliance in Europe—whether dealing with regulatory authorities in Germany and the United Kingdom, or with European Union officials in Brussels. Similarly, we have vast experience of handling product related claims in Europe and Asia, whether these are claims by consumers (or groups of consumers) or claims by or against other parties within the supply chain.
Clients benefit from the strength and depth of our Product Liability practice in the United States, Europe and Asia, which allows us to deal with the increasingly global nature of product liability litigation in a coordinated and cohesive manner. Supply chains often involve parties from numerous jurisdictions, and in jurisdictions where we do not have offices we invariably have strong relationships with local counsel. Our knowledge of and experience in virtually every major industry sector means that we can provide a globally coordinated litigation strategy appropriate for each client's business. Our broad range of experience also enables us to quickly adapt to new claims, new industries, and new challenges.
US Litigation Practice
Mayer Brown’s trial and appellate capabilities in product liability litigation are extensive, thanks to a team that includes many of our firm’s most accomplished trial and appellate litigators. We manage a full range of local, national and international product liability cases by coordinating traditional and electronic discovery, skillfully developing courtroom strategy, effectively using court-appointed experts and teams of experts, hiring and supervising regional and local counsel as necessary, and developing and presenting fact- and science-based defenses on behalf of our clients.
Our ability to develop defenses against emotional arguments that run counter to sound science and good law enables us to protect clients from pseudoscientific allegations and to attack the claims of plaintiffs’ experts, while relying on the effective defense provided by our own network of expert witnesses to structure cases for summary judgment, trial or settlement. We are familiar with the leading experts in many of the commonly relevant fields, including material scientists and mechanical, biotech, chemical, metallurgical and environmental engineers. We skillfully work with them to perform failure analyses, work practice simulations, representative product studies and other litigation support activities.
Our lawyers are particularly adept at thinking through global strategies designed to resolve particular litigation problems. While litigating cases is inevitably an unpredictable process, we believe it is critical—at the early stages of litigation—to map out a coherent plan. That means identifying the critical legal and appellate issues early and developing a strategy that ensures these issues are addressed during all aspects of the case, from early dispositive motions, through the motions in limine and jury instructions, to trial and—if warranted—to the appeals process. In addition, we identify the best forums for testing those theories, while timing and coordinating motion practice for maximum impact. That allows us to help clients make the most informed decisions on settlement and trial strategy.
Our US product liability trial experience includes representing companies from a variety of industries, giving us a broad base of knowledge to draw upon. We have considerable experience managing national litigation effectively. We also have significant experience in handling important cases in venues that are among the nation's most hostile to defendants, including: St. Louis, Missouri; 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. As national counsel in breast implant, asbestos, welding fume and silica litigations, we have extensive experience organizing science teams responsible for locating and vetting new experts, developing model witness examination templates and model discovery responses, and challenging plaintiff experts through depositions, motion practice, Daubert hearings and trial.
Our trial skill is matched by our understanding of how the law can be developed to work better for our clients. For example, we served as national co-counsel for a manufacturer that faced catastrophic liability from asbestos suits filed in Madison County, Illinois. Our firm exposed the deplorable litigating conditions in the county to the Illinois Supreme Court, to the business community and to the press. We filed aggressive forum non conveniens motions and took interlocutory appeals before the Illinois Supreme Court. We then solicited and obtained amicus support from the business community and shared our briefs with interested journalists. Ultimately, the judicial environment improved.
Because of the depth and breadth of our litigation practice, we have often served as national counsel in high profile product liability/mass tort cases. Our lawyers led the national defense of tens of thousands of breast implant cases for Dow in the 1990s, handled the defense of more than 200,000 asbestos cases that were pending against Union Carbide in the past several years, built a national defense for Dow and Union Carbide in silica litigation, and defended numerous individual suits against Abbott Laboratories in federal and state court jurisdictions around the country regarding in vitro blood tests.
US Appellate Practice
Mayer Brown’s appellate lawyers have argued more than 250 cases before the US Supreme Court (representing either parties or amici in approximately 15 cases each Term, and arguing an average of four cases per Term), as well as handling hundreds more cases in federal and state appellate courts across the United States.
Our appellate group has briefed and argued cutting-edge issues directly impacting toxic tort and product liability litigation in appellate courts and the Supreme Court. These include class certification and mass consolidation matters, preemption, the standards for the admissibility of scientific evidence, and punitive damages. In fact, we have filed briefs for either parties or an amicus in virtually every Supreme Court product liability preemption case in the past ten years. Underscoring our position as a leader in the product liability bar, we have acted as counsel to the Product Liability Advisory Council, preparing amicus briefs on important issues of product liability law, including federal preemption and punitive damages, in appeals pending across the country. That work reflects our involvement in most of the significant punitive damages cases in the Supreme Court during the last decade, serving as counsel of record for the business defendant in three of those cases. In several cases, appellate courts reversed and rendered judgment in favor of our clients. In numerous other cases, we succeeded in obtaining very substantial reductions of the punitive award. Collectively, our clients have saved more than $3.5 billion as a result of our appeals and/or post-trial motions.
In Europe, our experience in high-profile matters (including our recognized ability to deal with large scale group actions) gives our clients a substantial advantage when facing litigation and parallel investigations by regulators. Although the landscape for multiple-plaintiff (or claimant) litigation in Europe is significantly less well-developed than it is in the United States, the barriers to large groups of plaintiffs litigating successfully and cost-effectively are changing. Because we have been involved with many of the class (or group) actions that have taken place (e.g., for instance the Norplant contraceptive litigation and the organophosphates litigation), we are experienced in the strategies required to defend such litigation in Europe. Our lawyers have been involved in litigation in such diverse sectors as food, pharmaceuticals, chemicals, automotive, electrical products, personal care products and medical devices. Recent examples of our work include:
- Advising a manufacturer of personal care products on product liability claims from consumers;
- Defending a major manufacturer in a multi-jurisdictional pharmaceutical product-liability claim; and
- Representing a multinational company in the successful resolution and settlement of nationwide chemical product liability litigation in Germany and elsewhere in Europe involving allegations of harmful health effects.
Similarly, we have handled a diverse range of product liability disputes and claims in Asia. Lawyers in the Hong Kong office of Mayer Brown have defended such matters as:
- A multi-party claim involving the failure of flotation tanks at gold mines;
- A claim against the manufacturer alleging that electronic components for high-end designer ovens contributed to fires;
- The successful defense of oyster growers against consumer claims alleging oyster contamination with Hepatitis A; and
- Representing a multinational paint supplier in an international arbitration held in Singapore alleging paintwork defects on an oil drilling platform constructed in Singapore.
Due Diligence & Risk Management
Mayer Brown’s product liability lawyers are proponents of the concept of “product stewardship,” which is aimed at spotting potential problems and minimizing the identified risks as early as possible. For example, we regularly analyze product liability risks in formal and informal due diligence for mergers, acquisitions, joint ventures and other business combinations. We can also advise on whether and how to augment insurance coverage in connection with potential product-liability claims.
Our broad base of knowledge concerning a wide variety of litigation and regulatory risks and our access to a wide range of leading experts and consultants enables us to provide the kind of insightful risk management advice that helps clients better understand and manage the risks of litigation and claims on an ongoing basis and make more informed business decisions. As part of our advice, we can help clients with a wide variety of tasks, including:
- The development of model supplier and vendor agreements to allocate risks;
- The review of labeling for regulatory compliance and/or to identify potential litigation risks;
- The documentation of compliance policies and recall procedures;
- The implementation of systematic retention programs for electronic and paper documents or other records; and
- The ongoing review of emerging torts and areas of risk for our clients.
Crisis Management & Product Recalls
Mayer Brown’s global capabilities and wide-ranging experience across multiple industries enable our lawyers to respond immediately and effectively wherever and whenever a potential product liability, toxic tort, or mass tort crisis occurs. This includes proactive development of a response plan designed to withstand the often intense scrutiny that follows such events. We assist clients in developing facility-specific and product-specific response protocols, including the designation of a crisis-response team and the preparation of a public-communication strategy.
If a product recall or corrective action is necessary, we have extensive experience dealing with many of the responsible regulatory agencies—including negotiating with regulators as necessary on the scope and terms of recalls. In the United States, for example, we work with all divisions of the Consumer Product Safety Commission (CPSC) to defend our clients’ products and, where appropriate, have negotiated recalls for an assortment of consumer products, including recalls of tens of thousands of children’s bicycles, electric scooters, and home gyms.
We have significant experience managing US Food & Drug Administration (FDA) recalls for some of the largest multinational good, drug, and device manufacturers. We have assisted clients in negotiating with the FDA and with suppliers and customers preparing for potential litigation, managing public relations issues that arise, and assisting efforts to forestall prosecution of company executives.
We have also defended and negotiated recalls with other federal regulators, including with the National Highway Traffic Safety Administration (NHTSA) involving approximately one million child car seats. Similarly, in the United Kingdom, we handle matters involving Trading Standards and FSA recall actions, such as the Irish Pork dioxin contamination incident and the Sudan 1 food scandal, and in our Brussels office we advise on major EU-wide recalls of food products (related to alleged potassium chloride contamination), food packaging, and toys.
Regulatory Compliance & Investigations
The best product liability defense strategy can be proactive and preventive in nature, crafting solutions before a lawsuit or a recall occurs. Using our knowledge of effective regulatory compliance with the CPSC, FDA, US Federal Trade Commission (FTC), National Institutes of Health (NIH), US Department of Agriculture (USDA), EU Commission, and FSA, among other agencies in both the United States and Europe, we advise clients on such measures as advisory filings on litigation results, voluntary product recalls, and effective product-warning labels. US state enforcement actions have increasingly become an issue and we have extensive experience and contacts with many of the active attorneys general. We have also represented clients before counterpart agencies outside the United States, such as the European Medicines Agency (EMA or EMEA), National Competent Authorities (NCAs), and the World Health Organization (WHO).
In the United States, we advise on a wide range of investigation and compliance issues, including:
- Submitting advisory filings with the CPSC under the Consumer Product Safety Act regarding product-liability judgments or settlements involving specific models of consumer products;
- Engaging product recall programs, both voluntary and at the CPSC’s request, that provide notice to consumers of a product’s potential hazard and remedial action involving repair, replacement, or purchase-price refund;
- Responding to CPSC compliance investigations, including the negotiation of consent agreements and any possible civil penalties;
- Complying with other statutes administered by the CPSC, such as the childproofing requirements of the Poison Prevention Packaging Act and standards applied to various products regulated under the Federal Hazardous Substances Act;
- Adhering to product labeling and warning requirements regulated by the CPSC, FTC, FDA, and USDA.