United States > Litigation > Product liability and mass tort defense: toxic tort
Index of tables
Product liability and mass tort defense: toxic tort
Jones Day is often a first port-of-call in bet-the-company litigation as it is ‘well acquainted with the industry’, and provides ‘good value in big litigation’. Particular attributes are its ‘incredible depth of talent’, quick responses and advice which is ‘always well thought out and presented’. The firm is acting for Sherwin-Williams in two separate cases involving over 160 plaintiffs, who claim they were injured as a result of ingesting paint containing white lead carbonate pigments. It also represented ExxonMobil in appealing a $104m jury verdict entered in late 2010 in a case concerning the alleged future presence of methyl tertiary butyl ether (MTBE) in certain water wells in Queens County, NY. The case is part of multi-district litigation (MDL) pending in the Southern District of New York. The group defended National Semiconductor in three separate actions in which plaintiffs alleged they were exposed to hazardous workplace chemicals at the defendant’s facilities, causing adverse health effects in their children. It is acting for IBM in litigation arising from allegations of vapor intrusion of groundwater contaminants into structures near its former manufacturing facility in Endicott. The complaints, on behalf of approximately 970 plaintiffs, include claims for personal injury, property damage, business losses and medical monitoring arising from alleged exposure to volatile organic compounds. One client describes Pittsburgh-based Paul Pohl as being ‘as good a litigator as I have seen’; he is ‘good on his feet and makes clear and convincing arguments’. Charles Moellenberg, also in Pittsburgh, ‘does a superb job of keeping everybody focused’, and is ‘extremely bright and meticulous’.
King & Spalding LLP’s key strengths include its deep scientific expertise and trial bench. Having been involved in landmark cases involving asbestos and Chinese drywall, it is ‘well placed for big-ticket litigation’ and ‘thoroughly deserving of its reputation’. Recent highlights include acting for Lincoln Electric when it was claimed that a former welder, who was diagnosed with Parkinson disease at the age of 26, was exposed to toxic levels of manganese in welding fumes produced by the company’s products. The three-week trial resulted in a unanimous defense verdict. Acting for Cytec, the firm obtained another defense verdict when it was claimed that plaintiffs contracted terminal mesothelioma as a result of occupational exposure to, among other products, an asbestos-containing plastic molding compound manufactured and sold by a predecessor to the company. Claims were based on defective design, failure to warn, negligence and fraud. It also represents Dow Chemical in lawsuits claiming personal injury from exposure to products including trichloroethylene (TCE) and perchloroethylene (PCE). For Chevron, it is national litigation counsel in MTBE cases in which it is alleged that drinking water supplies in certain states are contaminated. Shell is also a client. The practice’s leading lawyers are Atlanta-based Kevin Buster and, in Houston, Tracie Renfroe and the highly recommended Robert Meadows.
Kirkland & Ellis LLP is ‘an exceptional firm’ that has participated in some of the most complex and significant matters in recent years. Examples include the well-documented victory for Dow Chemicals in Cook v Rockwell, and its work for BP in the Deepwater Horizon case. With regards to the latter, the team is handling nearly 400 individual and class action lawsuits filed as a result of the oil spill in the Gulf of Mexico, as well as the case opened by the Marine Board of Investigation. The firm is also assisting BP with investigations by various governmental agencies. Other highlights in 2011 included securing a victory for Verizon in environmental tort claims brought by two individuals; the plaintiffs claimed the company was liable for illnesses suffered as a result of working at a warehouse in New York during the 1990s. The site had previously been used as a nuclear fuel production facility, and plaintiffs claimed that certain chemical substances remained. Richard Godfrey has been instrumental in the BP litigation; he is based in Chicago alongside Kevin Van Wart, Douglas Kurtenbach and Thomas Morel. The practice also includes William Pratt and Lee Ann Stevenson in New York, and Eugene Assaf in Washington DC.
Arnold & Porter LLP’s solid reputation stems from its involvement in a number of significant matters and an enviable client base that includes BP, which recently instructed the group in tort and public nuisance cases alleging that its emissions caused injury to various plaintiffs. One of the cases, filed on behalf of an Inupiat native village in western Alaska, alleged that defendants’ greenhouse gas emissions caused a loss of barrier ice protecting the village from harsh Arctic storms which would render the village uninhabitable. The complaint was dismissed on constitutional separation of powers, principles and standing, and is pending appeal at the Ninth Circuit. It is also representing the company in re Motor Fuel Temperature Sales Practices Litigation, an MDL in which plaintiffs allege that motor fuel retailers sold gasoline on a volumetric basis without adjustment to reflect variations in energy content resulting from different temperatures. Atlantic Richfield is a longstanding client, which the firm is representing in eight cases in which plaintiffs allege they developed cancer due to exposure to radioactive materials emitted from two former nuclear processing facilities in Armstrong, PA. Philip Curtis and Nancy Milburn in New York are key partners along with Eric Rubel in Washington DC.
Dechert LLP is repeatedly described as ‘great’, with higher-end fees that are fully justified because ‘what you get for the money is an extremely high level of service’; ‘über-responsiveness, excellent trial skills and a very strong support bench’. Significant matters include its work for perfume and flavor chemicals producer Firmenich, for which it is serving as national counsel in litigation relating to diacetyl and other chemicals. It was recently instructed by PLAC to file an amicus brief in an asbestos appeal before the highest court in Pennsylvania; the aim was to address whether the Superior Court erred in reversing the trial court’s decision to exclude the testimony of the plaintiff’s experts in a friction-product asbestos case. Other notable cases included defending Union Carbide against wrongful death claims arising from mesothelioma. John Sullivan in Princeton is a key figure along with Sean Wajert in Philadelphia, who was instrumental in the Firmenich case. However, Diane Sullivan’s recent move to Weil, Gotshal & Manges LLP was a notable loss.
Goodwin Procter LLP’s widely recommended lawyers ‘have good judgment and knowledge pertinent to asbestos litigation, and work very hard’. One commentator notes that ‘it seems like everyone in the firm can write excellent briefs’. It recently developed and led CIRCOR’s efforts to negotiate and file a prepackaged asbestos bankruptcy plan for its subsidiary, Leslie Controls. The reorganization plan was successful and will permanently resolve the company’s asbestos liability and provide permanent court protection, as claimants will be channeled to a Section 524 (g) trust. Other clients include the Center for Claims Resolution, an organization that handles asbestos-related litigation involving its corporate members. William Hanlon is ‘a wonderful attorney’ who ‘excels at solving complex problems at reasonable cost’. Elizabeth Geise chairs this Washington DC-based practice and is ‘extremely hardworking and tenacious’.
Greenberg Traurig LLP devises creative defense strategies, tries high-stakes cases involving pollution claims and has substantial appellate capabilities. It is currently defending Coronet Industries against wrongful death, personal injury, medical monitoring and property damage claims by over 1,100 plaintiffs arising from purportedly contaminated water and air at a former manufacturing facility. The group is also defending Mosaic in a class action for economic damages as a result of approximately 65 million gallons of process water released into Hillsborough Bay during Hurricane Frances. Other recent work includes preparing and submitting a brief on behalf of amicus curiae Business Roundtable, which was aligned with power companies; the case tested whether state attorneys general could bring common law nuisance claims against large emitters of greenhouse gases. Glatfelter instructed the practice to act in a dispute over cleanup and natural resources damage arising from the presence of polychlorinated biphenyl (PCB) in waters in Wisconsin. Tampa-based David Weinstein is recommended.
Latham & Watkins LLP wins glowing feedback from clients; its attorneys ‘compare well against any other mass tort lawyers’ and have a knack for ‘preparing the case for trial and appellate advocacy’. Clients include Chevron, which recently instructed the group in a class action relating to historic operations of a nuclear fuel processing plant in Texas. Plaintiffs are claiming for personal injury and property damage from alleged nuclear and other contamination, and the case is pending in federal district court in Tennessee. The practice is also defending ConocoPhillips against numerous actions concerning the alleged MTBE contamination of drinking water. One recent highlight for the firm was obtaining a complete defense judgment for Essex Chemical, a Dow subsidiary, in natural resources damage actions brought by the State of New Jersey Department of Environmental Protection (NJDEP). Christine Rolph in Washington DC is ‘world class’ and is recommended along with Robert Howard in San Diego; both are ‘very good lawyers’.
Morgan Lewis has played a key role in some of the most prominent matters of recent years such as MTBE, popcorn litigation, asbestos, benzene and Deepwater Horizon, among others. Recent highlights include defending National Gypsum against economic damage claims arising from allegedly defective drywall products – the team successfully defeated efforts to create an industry-wide MDL. The practice is national litigation counsel for Sandvik against welding rod claims pending in various jurisdictions across the US. Plaintiffs claim neurological injury as a result of exposure to welding fumes. The practice spans a number of offices including Los Angeles and Houston, and is headed by James Pagliaro in Philadelphia.
Morrison & Foerster LLP’s team is ‘experienced, responsive and professional’; its attorneys ‘know the law, provide sound advice and excellent work product’, and are ‘sensitive to clients’ needs’. It has been active in Proposition 65 litigation over acrylamide, defending a coalition of US coffee producers, as well as two large California-based coffee sellers, and General Mills, Kellogg and Post Foods. It has a longstanding relationship with Cytec in asbestos cases, defending the client in lawsuits alleging personal injury and wrongful death due to asbestos fibers in the workplace. Costco recently instructed the group in litigation alleging that it dealt improperly with hazardous waste generated at its California gas stations, and the team is assisting The Newark Group in seeking cleanup and injunctive relief for solvent contamination at one of its properties. Much of the firm’s work is based on the West Coast, and Peter Hsiao in Los Angeles is ‘great at what he does’; Michèle Corash in San Francisco is also recommended.
Orrick, Herrington & Sutcliffe LLP often acts for clients facing bet-the-company litigation. Notably, it has assisted Dow Chemicals in a case in which Vietnam War veterans and Vietnamese nationals alleged personal injury from exposure to the herbicide Agent Orange. Recent highlights include representing polyurethane systems supplier Flexible Products in a mass tort in which plaintiffs alleged they suffered respiratory injury from exposure to isocyanate-containing products in coalmines. Union Carbide is a key client, for which the firm is national coordinating counsel for its asbestos personal injury litigation and serves as lead trial counsel in cases across the country. New York-based Laurie Strauch Weiss chairs the practice.
Reed Smith LLP is ‘good for asbestos work’, and its ‘experienced’ lawyers ‘exercise good judgment, do not overstaff a case, are knowledgeable on the applicable law’ and ‘provide excellent value’. The firm was recently instructed by MSA as national coordinating counsel to defend it in asbestos and silica litigation. It is national counsel to Sunuco in all of its benzene and asbestos product and premises liability cases, which include hundreds of claims involving allegations that plaintiffs developed acute and chronic myologenous leukemia, mesothelioma and other diseases from exposure to its products. Other clients include Johnson Controls, 3M, BASF and 20th Century Fox. Practice head John Hooper is based in New York, along with Christopher Healy. Thomas Yoo in Los Angeles is also recommended, as are Chicago-based Maryanne Woo and Richard Wray.
Shook, Hardy & Bacon LLP has ‘a broad practice’ and an impressive caseload in this space. Its credentials include acting for TVA as outside counsel to defend several class actions and individual claims involving more than 800 plaintiffs in relation to a containment dyke failure at a power plant in Kingston, Tennessee. It is defending Coca-Cola in a mass tort action by residents alleging that historic wastewater handling practices at one of its bottling facilities caused personal injury, property damage and other problems through groundwater contamination. For International Paper, it has been instructed to defend a cost recovery action involving a lumber and plywood mill in Montana; the case involves allocation of environmental investigation and remediation costs among and between the present owner and two former owners of the property. Mark Anstoetter and David Erickson in Kansas City are recommended.
Sidley Austin LLP is recognized as one of the dominant players in environmental litigation, and was recently involved in a case centering on the issue of global warming and whether private entities, which emit greenhouse gases, can be sued. The firm represented American Electric Power in a case in which the US Supreme Court reversed the Second Circuit’s verdict and held that the Clean Air Act displaces any federal common law right to seek abatement of carbon dioxide emissions from fossil-fuel fired power plants. Other clients include Henkel, which the firm defended in a case alleging significant birth defects to a child arising from a mother’s alleged exposure to chemicals. David Buente in Washington DC is ‘great in dealing with environmental cases’; also recommended are Michael Davis, James Mizgala and Sherry Knutson in Chicago.
Baker Botts L.L.P. has attracted key roles in numerous substantial pieces of litigation. For example, it is representing the welding rod industry defense group against claims of neurological injury from exposure to manganese compounds in welding fumes, and is acting for ExxonMobil in benzine exposure litigation. It has also been active in MTBE litigation, defending Marathon, Hess and Ashland in claims brought by state governments and owners of public water supply systems. Key attorneys include Tynan Buthod and Kevin Jordan in Houston, and David Cohen in New York.
Hughes Hubbard & Reed LLP has considerable know-how in this field and has been representing Chemtall for a number of years in a dual-state action based on alleged exposure to polyacrylamide, a component in an industrial water-purifying chemical manufactured by the company. Plaintiffs allege an increased risk of neurotoxic, genotoxic, carcinogenic and reproductive injuries after exposure to polyacrylamide while working at a coal plant. Other high-profile matters included acting for ABS in the Kingdom of Spain’s $1bn action against it, in which the plaintiff alleged that the company’s conduct during various surveys was responsible for the oil spill resulting from the sunken oil tanker M/T Prestige. The claim was recently dismissed without prejudice following seven years of complex multinational litigation. Robb Patryk and managing partner Ted Mayer are recommended; both are based in New York.
Mayer Brown has ‘great litigators with great knowledge’, who provide ‘outstanding client service and counsel’. It defended Cargill in a mass tort claim alleging contamination of groundwater in Grand Island, IL, and recently won summary judgment on the claims, as it was held that the contamination in question had been caused by a predecessor and the company was not under duty to investigate the property to learn of subterranean contamination. It is also defending Philips and its former division NXP Semiconductors in three pending toxic tort actions in which former workers and their children allege that birth defects were caused by the parents’ exposure to unspecified chemicals and substances at its plants in the 1980s. Chicago-based Daniel Ring, Herbert Zarov and Craig Woods are the key partners.
McDermott Will & Emery LLP handles a substantial volume of toxic tort work among its overall caseload. This includes acting for Honeywell as national coordinating counsel in asbestos personal injury and wrongful death cases, concerning brake linings manufactured and sold by its predecessor Bendix. There are currently some 20,000 active cases pending throughout the US and the firm’s role is to oversee the defense and direct the activities of local counsel. It has served as trial counsel to ExxonMobil for a number of years and has defended it in more than 120 mass tort and product liability cases brought by public water providers and sovereign governments, and consolidated them into a single federal MDL. Chicago-based Michael Pope chairs the product liability group.
McGuireWoods LLP is a ‘great’ firm for toxic tort and has been representing DuPont for a number of years in ongoing litigation concerning lead paint, brought by states, municipalities and individuals. Other matters include defending Ford in wrongful death actions involving individuals who contracted mesothelioma, allegedly caused by exposure to asbestos in Ford brake products. Deputy managing partner Terrence Bagley oversees the litigation practice, and is based in Richmond.
Nixon Peabody LLP has a strong trial record and a practice that spans the coasts. Recent significant instructions include a wrongful death asbestos case, in which it represented Ford; plaintiffs alleged that the decedent’s mesothelioma was caused in part by exposure to asbestos-containing parts. A defense verdict was reached after trial. Joseph Ortego heads the group.
Skadden, Arps, Slate, Meagher & Flom LLP is ‘a key player’ in the market, and routinely advises on toxic tort matters as part of its wider product liability and mass tort practice. Recent examples include acting as lead counsel for a consortium of defendants against allegations that the manganese in welding consumables causes brain injuries. Some 12,000 cases have been condensed to fewer than 100 through aggressive discovery tactics as well as the notable reversal of a $20.5m jury verdict for the plaintiff on time-bar grounds. The practice fields the revered John Beisner in Washington DC.
Tucker Ellis & West can point to a number of accomplishments in this area. While the firm is relatively small, its expertise attracts national instructions such as McCord, for which it has a longstanding role in asbestos litigation. It is also acting for American Optical in litigation relating to pneumoconiosis-producing dusts including asbestos, silica and coalmine dust. Other clients who use the firm for asbestos work include Rockwell Automation and UTC. Jonathan Cooper and Jeffrey Healy are key partners in the team.