1 Hall R. Marston Counsel, Los Angeles, California Appellate Practice Products Liability Pharmaceuticals and Medical Devices Intellectual Property Healthcare Employment and Labor Law HALL R. MARSTON tel fax Current Scope of Practice With over 36 years of front-line litigation experience, Hall R. Marston brings a deep and diverse range of skills to the service of the firm s clients. With more than 22 jury trials, 100 plus appellate matters, and over 30 published opinions which have molded significant elements of the nation s jurisprudence, Mr. Marston s practice encompasses a broad sweep of general civil litigation, including representation of public school districts, products liability, professional liability and healthcare, employment, complex business litigation, corporate and partnership disputes, surety and insurance coverage disputes. As a Certified Appellate Specialist, by the California State Bar s Board of Legal Specialization, Mr. Marston continues to help shape decisional authority in a wide array of practice areas. Representation of Public School Districts In a very challenging environment for public school district facing charges of negligence arising from alleged abuse of minor students, Mr. Marston has supported multiple trial teams in briefing issues before trial and appellate courts, drafting jury instructions, and providing counsel on trial tactics, with a particular view towards preservation of error for appellate review. In one of these trials, Mr. Marston s client received a defense verdict after a multi-week trial. Products Liability Experience From the outset of his practice to the present, Mr. Marston has had the privilege of participating in some of the major episodes of mass tort litigation regarding pharmaceuticals and medical devices. He has represented defendants in the diethylstilbestrol ( DES ), Dalkon Shield, DPT and polio vaccine, TMJ Teflon implant, Bendectin, breast implant litigation, and major medical device litigation. In this field, Mr. Marston has had perhaps the most impact in developing the law before the nation s appellate courts in this challenging environment for manufacturers and distributors:
2 Daubert v. Merrell Dow: Mr. Marston represented the manufacturer of Bendectin, the only FDA approved therapy for morning sickness, in the landmark U.S. Supreme Court case that established the trial court s obligation to act as a gatekeeper to exclude unreliable expert testimony. Sindell v. Abbott Laboratories: The DES litigation posed an intriguing challenge to the California Supreme Court concerning under what circumstances would the children of women who could not identify the manufacturer of an anti-miscarriage therapy be allowed to proceed in the pursuit of a products liability claim. Mr. Marston represented the manufacturer who took the lead in advocating the industry s position regarding market-share liability, and this opinion is the landmark on the subject. Merrell Dow v. Havner: While Daubert spoke to the admissibility of expert testimony under the Federal Rules of Evidence, many state courts of last resort focused on fashioning like rules, following the lead of the U.S. Supreme Court. In this case, Mr. Marston, again representing the manufacturer of Bendectin, urged that the Texas Supreme Court adopt the rationale of Daubert, and overturn a $33 million dollar verdict which was based on unreliable meta-analysis of epidemiological data on congenital birth defects and in vitro animal studies. The Texas high court agreed, reversed the judgment, and ordered that judgment be entered in favor of the manufacturer. Toole v. McClintock: At the beginning of the nationwide breast implant litigation, the manufacturers were reeling from a wave of bad publicity and adverse verdicts. In this case, where Mr. Marston represented appellant Baxter Healthcare Corporation, the 11th Circuit reversed a multi-million judgment, which helped turn the tide against a swell of judgments in plaintiffs favor. Mack v. Stryker Corp: This is one of three significant appellate victories for a major medical device maker, securing affirmance of the grant of summary judgment in our client s favor on the issue of the presence of a product warning defect given the state of scientific learning at the time the device was prescribed. Sedgwick s client, alone among major manufacturers in the market, has not suffered an adverse outcome before reviewing courts in cases involving this product. One of the first appeals in California of a breast implant case was handled by Mr. Marston, resulting in the affirmance of a judgment in favor of his client. Mr. Marston also successfully represented the manufacturer of the leading anti-anxiety therapy when the California Court of Appeal affirmed a judgment following a jury trial for the defendant. Mr. Marston also represented the parent corporation of a major breast implant manufacturer in proceedings around the country concerning whether the parent was a proper party-defendant in those cases. He is a member of the firm s product liability practice group. Mr. Marston has also represented the defense in mass tort litigation involving tobacco (including a published California appellate opinion on the controversial limitations/revival statute), asbestos, benzene exposure litigation, as well handling suits involving heavy machinery, hand held small tools, and environmental contamination. After preparing a summary judgment motion for a manufacturer of a wood-working table router on the grounds of post-sale modifications, the plaintiff accepted a settlement from Mr. Marston s client of less than one tenth of further costs of defense. As an element of his practice in mass tort defense, Mr. Marston has represented his clients in connection with many of the administrative challenges of multi-district litigation on the federal level, and coordinated litigation at the California state level. He recently represented a drug manufacturer in a landmark Ninth Circuit opinion
3 curbing the abusive practice of joining hundreds of plaintiffs in state court class actions to avoid removal under the Class Action Fairness Act. Professional Liability Experience Another area of emphasis in Mr. Marston s practice has been professional liability, particularly in the representation of attorneys. A disturbing trend in legal malpractice litigation has been the willingness of clients to sue counsel as safety nets for the clients endeavors, to insulate them from the risk of transacting business. Mr. Marston successfully represented counsel in a suit brought by an adversary who claimed a conspiracy between counsel and its client harmed the adversary. In the definitive published opinion on the California statute that requires judicial prescreening of such claims, the Court of Appeal adopted Mr. Marston s construction of the statute, and reversed the trial court s determination to permit the suit to proceed against Mr. Marston s client. Berg & Berg Enterprises, LLC v. Sherwood Partners Inc. In both trial and appellate forums, Mr. Marston has represented lawyers in such varied matters as negligence, malpractice, malicious prosecution, fraud claims, as well as litigation concerning the California anti-slapp statute, which requires an early merits evaluation of suits based on activity that petitions governmental entities, and attorney disqualification motions. He has tried professional liability actions for lawyers involving alleged securities wrongdoing, and malpractice in corporate formation. He has been retained to counsel and represent attorneys even before a professional liability suit has commenced, to assist in the management of risk and exposure in cases where malpractice allegations may ultimately ensue. He is a member of the firm s professional liability practice group. Mr. Marston has also represented other professionals, such as physicians, dentists, accountants, engineers and appraisers. While representing a dentist on appeal from an adverse judgment following a jury verdict, Mr. Marston successfully urged not only that the verdict should be reversed, but that judgment actually be entered in his client s favor, based on the wrongful denial of a motion for judgment notwithstanding the verdict, because of the expiration of the limitations period. He is a member of the firm s healthcare practice group, and has represented its clients on appeal (preserving the rights of a healthcare management group to assert privacy rights on behalf of its members), and in trial courts (concerning the ability of a hospital group to unilaterally cancel a contract to provide services to healthcare plan enrollees). Employment Experience As a member of the firm s employment and labor practice group, Mr. Marston has represented employers in a variety of suits, ranging from racial, gender and age discrimination, sexual harassment, and other types of wrongful termination. Mr. Marston successfully represented on appeal a major Los Angeles law firm in defending a wrongful termination suit arising from an alleged affair between the daughter of the firm s managing partner and the dismissed employee; summary judgment for the firm and the partner was affirmed on review. Mr. Marston represented the District Attorney of Los Angeles, and several subordinates, in a suit brought by a deputy who alleged sexual harassment and gender discrimination resulting in a failure to promote. The Court of Appeal affirmed summary judgment in favor of Mr. Marston s clients. Mr. Marston represents a major hair care, hair color, and cosmetics manufacturer in employment matters. He is a member of the firm s employment practices and litigation group.
4 Commercial Litigation Over his career, Mr. Marston has handled several different types of commercial disputes. For example, he represented the general partner of a substantial Beverly Hills residential real estate development in a dispute with limited partners, and helped secure a multi-million dollar settlement for his client. He represented a Southern California automobile dealer in federal court litigation over the wrongful deprivation of sales territory by a Big Three car manufacturer, also resulting in a multi-million dollar settlement for the dealer. Mr. Marston advocated on behalf of a major European pharmaceutical manufacturer in a joint venture dispute with a start-up company concerning a diagnostic technique for cervical cancer, yielding a favorable settlement for his defendant client. For the same manufacturer, he handled a patent infringement suit concerning intra-ocular lens implants. On behalf of his hair care client, Mr. Marston has handled a range of commercial disputes with vendors, suppliers and distributors, including a dispute arising out of the acquisition of major domestic hair care manufacturer. On behalf of another hair care manufacturer, Mr. Marston provided both representation and counsel in a dispute between the principals of a joint venture, leading to a buyout of one of the principals by Mr. Marston s client on favorable terms. Mr. Marston has handled a number of breach of warranty claims for clients such as automobile manufacturers, paint suppliers, and bulk plastic suppliers. He has also handled several licensing suits, including claims against his clients for misappropriation of likeness, and distributorship disputes. He has represented clients in a number of controversies concerning real property. He also has experience in anticompetitive tort litigation. For example, he represents the largest publisher of Chinese ethnic phone directories in Southern California in high stakes suit brought by a competitor, whose intention, as found by a bankruptcy court, is no less than to put Mr. Marston s client out of business. He recently secured an order that the client s adversary pay over $1.5 million in attorney s fees to his client Mr. Marston s client continues to prosper in the marketplace. He recently tried a federal court jury trial where his client was accused of fraud in connection with the purchase and sale of utility-grade power transformers. Where the client admitted liability to the plaintiff, Mr. Marston successfully argued to the jury that the award should be less than one tenth of the amount sought by plaintiff. Mr. Marston has already handled a number of commercial disputes concerning intellectual property. For example, on appeal he represented two former employees, and an investor, who were sued by the former employer for misappropriation of trade secrets, primarily customer lists. Summary judgment was granted in favor of Mr. Marston s clients, and affirmed on review. Mr. Marston is a member of the firm s commercial litigation practice group. Surety, Fidelity and Insurance Litigation While surety and fidelity practice is a specialized area, Mr. Marston s background as a generalist has contributed to the representation of this firm s clients in this group in a number of cases on appeal. For example, a surety for a contractor on Los Angeles subway project was found jointly and severally liable on a multi-million dollar judgment based on an evidentiary sanction against the contractor. On appeal, Mr. Marston successfully argued that the judgment had to be reversed on due process grounds. In another suit, Mr. Marston secured the affirmance of a summary judgment in favor of the issuer of financial institution bonds. In another appeal, Mr. Marston secured the reversal of summary judgment against the issuer of a public works payment bond. In a series of published opinions, Mr. Marston represented the issuers of construction payment bonds and stop notice release bonds. Mr. Marston has also represented many insurers in coverage and extra-contractual liability litigation. He represented an insurer on appeal concerning whether
5 a comprehensive general liability insurance policy, with advertising injury coverage, required a defense for an insured sued for trademark infringement. Appellate Practice Mr. Marston has handled well over 100 appellate matters before both federal and state courts of review. He has secured reversals of multi-million dollars judgments against his clients, and has successfully defended scores of defense judgments on review. He has also represented clients in original proceedings before appellate courts. He has participated in more than 30 matters which resulted in published opinions by the U.S. Supreme Court, the Ninth Circuit Court of Appeals, and the California Supreme Court, and California District Courts of Appeal, among others. He is certified as an appellate specialist by the California State Bar Board of Legal Specialization. He is a member of the firm s appellate practice group. Publications and Presentations Mr. Marston was selected by the Appellate Courts Committee of the Los Angeles County Bar Association to co-author, at the request of the California Courts of Appeal, Second Appellate District, a publication entitled Basic Civil Appellate Practice for the Court of Appeal in the Second District (2003), which serves as a guide for the novice appellate practitioner and lay people for advocacy in that appellate district. Mr. Marston served as a consultant and editor of the conversion and common carrier chapters in Bancroft- Whitney s California Civil Practice, Torts (1992). Most recently, Mr. Marston s article Suggestive Palma Notice, Dilemma Resolved was published in The Daily Journal (2010). He is a contributor to Sedgwick s Appellate Strategist blog. Affiliations, Activities and Accomplishments Mr. Marston is admitted to the California State Bar (1977). He is also admitted to all U.S. District Courts in California, numerous Federal Circuit Courts of Appeals, and the U.S. Supreme Court. He is a Certified Specialist, Appellate Law, and The State Bar of California Office of Legal Specialization. Mr. Marston has lectured before the Defense Research Institute, where he serves as a member of the appellate practice committee, the Association of Southern California Defense Counsel, the California Continuing Education of Bar, and at the New York University School of Law. He is member of the Defense Research Institute and the Los Angeles County Bar Association, Appellate Courts Committee, and the America Business Trial Lawyers Association. Mr. Marston is an active member of the community, and is an elder and deacon of the Presbyterian Church USA, Brentwood Presbyterian Church, Los Angeles, California. Mr. Marston is a member of Phi Beta Kappa. By far, Mr. Marston s greatest accomplishment is his marriage to his lovely wife, Ysara, whose daily-packed, gourmet lunches are legendary to colleagues and clients. Mr. Marston prays that friends and foes alike may be blessed with their soulmates, as he has been blessed with Ysara.
6 Education Mr. Marston received his J.D. (1977) from the University of California at Los Angeles School of Law, where he received the Distinguished Advocate Award. He received an A.B. (1974), magna cum laude, from Occidental College, Los Angeles.