Client Services / Trial / Mass & Toxic Torts

Mass & Toxic Torts

Mass and toxic torts, both mature and emerging, almost always present greater burdens and threats than the sum of the individual cases. Our team's particular strength and experience lies in assisting clients in developing an overall strategy to defeat, manage and resolve these cases in a coordinated and effective manner. Our experience as trial lawyers, as well as our experience with other clients facing similar situations, also gives us the ability to translate that overall strategy into day to day results at the trial and appellate level.

Some of our most recent and more widely publicized representations include:

  • In re: NARCO - Members of our Environmental/Toxic Tort team have been playing the lead outside counsel role developing and implementing a broad and comprehensive strategy to deal with one of our Fortune 100 client's asbestos liabilities, creatively using the Bankruptcy Code to attempt to structure a global resolution for our non-bankrupt client. In cooperation with our client's successor, which has filed for Chapter 11 protection, the Firm helped our client and its successor obtain a temporary restraining order, extending the successor's automatic stay to asbestos cases pending or to be filed against our client. More than 100,000 claims were pending against the debtor at the time of filing. The TRO has remained in effect for some months, permitting our client (with McDermott Will & Emery's lead assistance), and key members of the asbestos plaintiffs' bar (represented by the bankruptcy estate's Asbestos Creditors' Committee), to attempt to negotiate a global resolution to the debtor and our client's asbestos liabilities.

  • MDL No. 1358 - On behalf of one of our major oil industry clients, we defeated class certification in multi-district litigation. In the proceeding, In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation (MDL No. 1358), named plaintiffs initially sought to certify a multi-state class of private well owners seeking well testing, monitoring, and remediation for the actual or threatened presence of MTBE in their drinking water. The McDermott Will & Emery team, representing our client and as all defendants' liaison counsel, led and coordinated a focused joint defense fact and expert witness discovery campaign and briefing designed to expose the fundamental flaws in plaintiffs' class strategy. We were also instrumental in obtaining an evidentiary hearing before the Court on the class issues. Our Firm, in coordination with other key counsel, was able to use that hearing to further highlight the flaws in plaintiffs' theories. Based upon these efforts, the Court denied certification, stating, "Plaintiffs have made every conceivable argument to persuade this Court that class action treatment is appropriate in this hybrid environmental/products liability action. . . . Such treatment would stretch the decidedly elastic class action device beyond its breaking point -- causing it to snap."

  • Copolla/Molloy - On behalf of one of our major oil industry clients, members of our team obtained two of the first rulings in the United States dismissing all product liability claims against oil refiners grounded solely on the use of MTBE in gasoline. MTBE, an oxygenate, has been blended into gasoline sold in many parts of the United States to comply with the federal Clean Air Act. In Copolla v. Amerada Hess, et al., and its companion case, Molloy v. Amerada Hess, et al., plaintiffs, private well owners in Hyde Park, NY, sought to hold more than ten oil refiners liable, based upon allegations that MTBE gasoline is a defective product and that the refiners failed to warn unspecified third-parties about MTBE's putative heightened threat to groundwater resources. The New York Supreme Court largely granted the motion to dismiss the complaints, holding that plaintiffs' claims based upon product liability theories were preempted by federal law and were otherwise fatally defective under New York's statutory and common law. This victory is all the more significant from the industry's perspective, because it is the most comprehensive success in a series of cases in which courts have been split on these issues.

  • Hernandez v. Acheson, et al. - On behalf of a southern California client, members of our team obtained a major ruling in a toxic tort case involving over 90 defendants pending in Los Angeles County Superior Court. In the lawsuit, plaintiffs seek damages in a wrongful death action, alleging that years of exposure to dust producing products at a wheel manufacturing plant led to decedent's contracting interstitial lung disease. Our team dealt a significant setback to the plaintiffs' case by convincing the court to sustain a demurrer (motion to dismiss) to plaintiffs' entire second amended complaint. The court found that plaintiff's "shotgun" type complaint that alleged that over 1,400 products were a "substantial cause" of plaintiff's interstitial lung disease was insufficient because of its "theoretical" and "speculative" nature. The court held that plaintiffs must plead significant additional facts supporting causation to plead a viable third amended complaint. This was a significant ruling in that the approach followed by plaintiffs in this case is a common strategy used by plaintiffs in toxic tort cases. The ruling calls into question the continuing viability of such tactics.

  • In Re Westley Tire Fire Litigation - Our team in Southern California achieved a favorable settlement for a Michigan-based client in a class action lawsuit involving over 12,000 plaintiffs. In the action, plaintiffs alleged injuries and other damages resulting from a tire fire that burned for over six weeks. The team also successfully settled a companion case filed by the California Attorney General seeking reimbursement for environmental investigation and cleanup costs from the tire fire. The team achieved a major victory, which fostered the settlement discussions, by getting the venue of the case transferred out of the county where the tire fire occurred.

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McDermott Will & Emery

McDermott Will and Emery