Client Services / Trial / Product Liability

Product Liability

We have successfully defended our clients against product liability and negligence claims arising from such products as airplane engines, punch presses, table saws, forklifts, brakes, pharmaceutical and medical instruments and industrial and heavy construction equipment. We also have extensive experience managing, supervising and handling national litigation including multi-plaintiff cases involving lead paint, pharmaceuticals, wood treatment, asbestos and other construction products. We have developed a sophisticated computer program and have experienced staff who perform case management tasks effectively and efficiently. Our experienced, professional staff and use of technology frequently allows us to offer alternative billing arrangements on such cases.

REPRESENTATIVE EXPERIENCE

Pharmaceuticals and Medical Instruments 
 We represent major pharmaceutical and medical instrument companies in product liability cases involving medical devices and prescription drugs, including appeals to state and federal courts on significant issues that arise in defending the scope of the drug manufacturer's liability. For example, we currently serve as national counsel in the Fen-Phen pharmaceutical litigation, which has become one of the most significant product liability matters in medical history. We represent one of the pharmaceutical defendants in this high-profile case involving the combination of two prescription medications intended for the management of obesity. Thousands of cases, both class actions and individual suits, have been filed in state and federal courts throughout the United States, and we have assembled a network of local counsel in all fifty states. One of our partners was appointed lead counsel for the Defense Steering Committee by the multi-district litigation (MDL) judge.

We have established a reputation for our work in Daubert challenges to the admissibility of scientific evidence and have developed outstanding internal and external scientific and expert resources with whom we work on a regular basis. Recently, we were lead counsel in the first Daubert evidentiary hearing in Massachusetts state court and successfully precluded plaintiffs' expert witnesses from offering medical causation testimony against phentermine. The court's detailed and thoughtful opinion helped shift the momentum in favor of our clients throughout the United States.

We also are national defense counsel for a major pharmaceutical company that manufactures a range of asthma, allergy and blood supplement prescription medications, and have primary responsibility for all aspects of trial, pretrial, expert retention and overall risk management. These cases have included claims for serious injury, including death and brain damage in high damage jurisdictions, including Massachusetts, Illinois, California, Arkansas and Washington. A team of lawyers from various Firm offices has worked on these matters. We have also represented a German medical equipment manufacturer in alleged product defect cases involving instruments that broke during operations.

In addition, we are national counsel for a major manufacturer of nursing home equipment and oversee all of its product liability cases. These have included multi-state personal injury claims by nursing home workers alleging injury from lifts and bathing tubs manufactured by our client. Another medical equipment case in which we are involved is the latex glove litigation, where we serve as local defense counsel to an internationally recognized leader of the medical products industry in this consolidated case of 100 former nurses in Boston alleging latex injury.

Asbestos
Our lawyers have been involved at each stage of the continuously evolving asbestos litigation - a litigation which has become the longest mass toxic tort litigation in United States history and now affects more than half of the industries in the United States economy.

Our lawyers have represented a wide variety of defendants, both large and small, as national counsel, regional counsel and local counsel in asbestos litigation pending nation-wide. Our Firm has accomplished toxic tort and complex litigation lawyers who serve significant roles to some of the United States' largest corporations, including as lead trial lawyers, on multi-district litigation and other substantial asbestos matters.

That representation has included claims for personal injury (including wrongful death) and property damage. In the early stages of the asbestos litigation, our lawyers represented: mining companies; manufacturers and distributors of thermal insulation products (cement; pipecovering and block); and manufacturers and distributors of fire-proofing spray materials.

As the litigation evolved and plaintiffs' attorneys sought replacements for the "traditional" defendants that had sought bankruptcy protection, McDermott, Will & Emery's asbestos practice evolved as well. Our lawyers have also represented, and in most instances continue to represent, companies which have manufactured or distributed products such as: boilers; roofing and siding materials; refractories; printing presses; automobile brake parts; and locomotive component parts, including pumps and compressors. Our lawyers also represent service providers such as architects, engineers and other major contractors who are now routinely sued by plaintiffs in the ever-evolving asbestos litigation.

As a result of the Firm's long-standing involvement in the asbestos litigation, our lawyers have substantial knowledge concerning the medical diseases typically alleged, and substantial experience and resources to defend against those claims. As national counsel to several large clients, we have demonstrated expertise in a variety of capacities: counseling clients on ways to reduce or avoid costs of asbestos claims; crafting and implementing comprehensive defenses for individual cases and on a more global scale; organizing industry-wide defense efforts; assisting clients to evaluate their likely exposure and to develop strategic solutions to their particular situation; and designing and developing client-specific databases to evaluate and monitor their cases as part of an overall combined case resolution/defense strategy.

Lead Paint
Two of our partners currently serve as national counsel for two lead pigment manufacturers named as defendants in the national lead paint litigation. These cases involve claims for physical and neurophysical injuries to children from alleged lead poisoning. Our lawyers have been instrumental in persuading courts around the United States to reject market share liability in favor of a plaintiff's obligation to identify the particular manufacturer of an allegedly defective product in order to prove causation.

Aviation
We currently represent a major manufacturer of airplane components in a significant case involving the crash of a U.S. Air flight in Pittsburgh. This multi-district litigation is being held in Pennsylvania, with corresponding actions in the Circuit Court of Cook County, Illinois. In a separate case, we represented the manufacturer of airplane engines in a case of first impression involving the doctrine of economic loss. The Illinois Supreme Court resolved the issue in favor of our client on legal issues certified by the United States Court of Appeals for the Seventh Circuit.

Industrial and Construction Equipment
Our lawyers have represented clients in product liability cases involving industrial equipment such as conveyor belts, dry-cleaning equipment, diesel generators, forklifts, compressors, forestry equipment and railroad equipment. We represent manufacturers of construction equipment, including concrete finishing equipment, scaffolds, dock plates, transformers and lawn tractors. These cases allege a wide variety of injuries, including amputations, brain damage and death.

Gas Valves/Hot Water Heaters
We represent a large manufacturer of hot water heaters in a variety of substantial property damage and severe personal injury actions.

Foods
We have extensive experience in representing food stores and food processors in toxic tort litigation around the United States. The Firm's lawyers have negotiated settlements in class action matters and successfully defended clients in suits alleging various types of personal injury, including a mass salmonella poisoning case in Illinois.

Additionally, we have been retained as national counsel by the largest producer of StarLink® corn seed in litigation or threatened claims by millers, manufacturers, retailers and farmers as well as attorney general litigation, an EPA investigation, and suits by plaintiffs representing consumers, farmers and a large restaurant chain.

In May 1998, the Environmental Protection Agency (EPA) approved the sale of StarLink® corn, which had been genetically modified to express a protein, Cry9C, which is toxic to corn borers but not to livestock or humans. Because the EPA concluded there was insufficient data on whether or not Cry9C was an allergen, it restricted the use of the corn to non-export animal feed and industrial (ethanol) use. No approval was given for human consumption. In September 2000, StarLink® protein was discovered in Taco Bell brand taco shells and more than 300 other products using yellow cornmeal. During the same month, an environmental advocacy group tested certain corn products on grocery shelves and found evidence of Cry9C genetic material.

That discovery resulted in a massive recall of yellow corn products and nationwide litigation, including 30 class actions. McDermott, Will & Emery has been defending the national seed producer in all of these suits.

General Products Our product liability lawyers have represented a major manufacturer and retailer in the defense of table saw cases alleging that manufacturing design and/or defects resulted in severe amputation injuries. We have been active in the defense of a manufacturer of infant car seats in cases across the United States alleging death and other permanent injuries. We currently represent one of the top manufacturers of computer keyboards in all of its Illinois litigation involving repetitive stress injuries. We have also represented manufacturers and other parties in cases involving injuries sustained from batteries, roofs, swing sets, swimming pools, ladders and floor sealants.

International Manufacturers We have handled a number of product liability cases for companies based outside of the United States. Our lawyers are representing a Swedish manufacturer in several product liability cases involving forklifts. We are also handling a death case involving a valve in a diving suit for another Swedish company. We have consulted with a foreign furniture manufacturer on a Consumer Products Safety Commission investigation, and also handled personal injury cases on this client’s behalf. We represented a Finnish company in personal injury and product liability cases involving mining and drilling equipment. In addition, our attorneys have consulted with a Japanese holding company on product liability insurance coverage issues.

Counseling and Crisis Management Insurance coverage is often an important issue in product liability claims. We have extensive experience counseling clients regarding policy coverage issues, including the interpretation of primary and excess insurance policies. In addition, our lawyers regularly counsel our clients on product liability issues, including developing instructions and warnings which anticipate hazards, as well as drafting contract and warranty provisions which attempt to limit product liability claims and exposure. We have also assisted clients on Consumer Products Safety Commission rules, regulations, and during investigations. Our product liability lawyers have also reviewed corporate acquisitions and mergers to assess the potential product liability exposure.

Contacts

Trial Client Services

McDermott Will & Emery

McDermott Will and Emery