Product Liability Group. Annual Practice Review

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1 Product Liability Group Annual Practice Review

2 Annual Practice Review This past year presented one of the most volatile and challenging financial environments since the Great Depression. Unfortunately, in the midst of this economic crisis, many of our clients also faced difficult litigation challenges. Morrison & Foerster s Product Liability Group helped our clients overcome those challenges with cost-effective winning strategies. The pages that follow tell that story. Morrison & Foerster s Product Liability Group is recognized as one of the nation s premier practices when a company faces bet-the-company product litigation. As this review details, we handled numerous high-stakes matters for pharmaceutical and medical device companies, aviation products, and consumer product manufacturers. We repeatedly exceeded our clients expectations through successful pre-trial motions, favorable settlements, or defense verdicts. We thank our clients for entrusting their important matters to us. Charles Kerr and Don Rushing Product Liability Practice Group Co-Chairs 2 attorney advertising. prior product results liability do not Group guarantee annual a similar practice outcome. review

3 Selected Matters Air France 447 Investigation and Litigation We represent Honeywell International Inc. and its insurer in the investigation and litigation arising from the crash of Air France 447. The crash occurred on June 1, 2009 when an Airbus A went missing over the Atlantic Ocean on a flight from Rio de Janeiro to Paris, France. All 228 passengers and crew-members perished in the crash. The cases are currently pending in various federal courts and may be coordinated and consolidated into an MDL proceeding by the Judicial Panel on Multidistrict Litigation. Pain Pump Litigation Matters We serve as national counsel for a major pharmaceutical company in product liability actions filed in numerous state and federal jurisdictions around the nation. The plaintiffs allege that our client s local anesthetic products used in pain pumps contribute to the development of post-surgical chondrolysis, a degenerative condition of the shoulder cartilage. Gordon v. Apple Inc. We represented Apple in consumer class action related to allegedly defective power adapters for Apple PowerBookG4 and ibook computers. Plaintiffs alleged consumer protection, false advertising, warranty and other claims. This case settled. Learjet 60 Crash We represented Goodyear in four consolidated cases involving the crash of a Learjet on September 19, The plaintiffs include former Blink-182 drummer Travis Barker and celebrity disc jockey DJ AM, who both survived the crash, but were critically injured. The two pilots and other two passengers were killed. The plane was headed for Van Nuys, California. Goodyear settled the cases against it for a nominal sum of money to avoid protracted litigation. Heparin Litigation We act as national coordinating counsel to a major pharmaceutical company in its litigation involving the pharmaceutical drug, heparin. We also advise the client regarding possible claims and issues arising out of the recall of a competitor s heparin products. Our client is one of the largest manufacturers of heparin, a prescription injectable blood coagulant often used in hemodialysis (the filtering of blood) and cardiac invasive procedures. Cessna 208B Crash in Oak Glen, CA Litigation We represented Cessna Aircraft Company in a crash of a Cessna 208B in Oak Glen, California on March 28, The case was filed in the Superior Court of CA, Riverside County. The decedents, a successful independent sales representative for Cessna, and one of Cessna s regional sales managers flying with him, were both killed while on a flight from the Palm Springs area to Ontario. The airplane descended into mountainous terrain in bad weather and was lost. Shortly after the accident, a prominent Los Angeles plaintiffs attorney filed a complaint on behalf of the wife and son of one of the decedents against Cessna alleging product liability and negligence theories. The plaintiffs initial settlement demand sought hundreds of millions of dollars in damages. Several attempts to mediate the case to a settlement before trial were not successful. Ten days before trial, Cessna made a statutory offer to compromise, which was rejected. Trial commenced in the fall of 2009 and after a six-week trial, the jury returned a defense verdict finding that the pilot was solely responsible for causing the accident. 3

4 Selected Matters Toy Product License Agreement Litigation We represented a major film company which licensed its trademark names and images to a toy manufacturer. Due to positive tests for lead content, the license agreement was terminated. Litigation ensued, and we prevailed in settling a permanent injunction and our attorneys fees. Palomar Airport Litigation We represented the County of San Diego in six consolidated cases in federal court in San Diego arising out of the crash of a Cessna Citation 5 jet. The accident occurred during an aborted landing at Palomar Airport in Carlsbad, California, resulting in the death of both pilots and two passengers. Our motion for summary judgment was granted, applying federal preemption defense to airport design claims. The decision was one of the most notable and unprecedented rulings in an aviation case in 2008 because of the application of preemption. Throughout 2009 opposing counsel considered an appeal of the summary judgment to the 9 th Circuit, but ultimately they waived their claims against the county and dismissed their appeal. Private Surgeon General Litigation We represent a food product manufacturer in two class action filed in 2009 in the Northern and Central Districts of California. The plaintiffs allege that our client s advertising of its vegetable oil spreads is misleading because the products contain trace amounts of partially hydrogenated vegetable soils or trans fatty acids. The plaintiffs want our client to refund all revenue earned going back four years, an injunction against further misleading statements and relabeling, punitive damages, and costs. We have filed a motion to dismiss. Gol Airlines Flight 1907 Litigation We represented Honeywell International Inc. in a lawsuit involving a mid-air collision between a Boeing , operated as Gol Airlines Flight 1907, and an Embraer Legacy 600, operated by ExcelAire Services, over the Amazon jungle, Brazil, on September 29, The accident resulted in the deaths of 154 passengers and crew-members. Cases were brought in seven different districts, and we were successful in obtaining consolidation of the cases for MDL treatment in the Eastern District of New York. In late July 2008, the motion to dismiss the cases to Brazil for forum non conveniens was granted. The Brazilian carrier is settling the cases with claimants in Brazil. On appeal, the District Court s dismissal of the consolidated actions was affirmed by the Second Circuit. 4

5 Selected Matters In re Pamidronate litigation We act as national coordinating counsel for a drug manufacturer in an MDL proceeding and state consolidated cases where plaintiffs claim the product causes a degenerative condition of the jaw. Chinook Helicopter Crash in Afghanistan (Getz v. Honeywell) We represent Honeywell International Inc. in litigation filed in federal court in San Francisco arising from the crash of an Army special operation Chinook in Afghanistan on February 17, Eight people died and fourteen were injured. We filed a motion for summary judgment based on the government contractor defense. We expect a ruling in American Meat Institute v. Leeman We won a significant ruling from the California Court of Appeal for our two national trade association clients: the American Meat Institute (AMI) and the National Meat Association (NMA). When well-known Proposition 65 plaintiff Whitney Leeman threatened to sue numerous meat producers and retailers for their alleged failure to put Proposition 65 cancer and birth defect warnings on meat sold in California, AMI and NMA filed a declaratory relief action against him, seeking a judicial declaration that federal law preempts the application of Proposition 65 to meat regulated by the USDA. In its decision, the Court of Appeal found that federal law expressly preempts Proposition 65 s application to meat regulated by the USDA and rejected Leeman s and the California Attorney General s arguments that our suit was unripe and improper. This is the second of only two appellate opinions ever to uphold a finding of federal preemption of Proposition 65; the first was also obtained by our firm in the unanimous California Supreme Court decision, Dowhal v. SmithKline, 32 Cal. 4th 910 (2004). Chinook Helicopter Crash off Greece (In re Greek Chinook) We represented Honeywell International Inc. in several lawsuits arising out of the crash of a Boeing Chinook helicopter off the coast of Greece into the Aegean Sea on November 9, The accident claimed the lives of the 17 passengers and crew-members on board the helicopter. This case involved multiple international jurisdictions, Death on High Seas Act (DOHSA), and a difficult causation investigation. We defended claims involving alleged defects in the helicopter s engines, FADEC and AFCS. The lawsuits filed in the Greek courts in Chalkidiki, where the accident occurred, were settled. The remaining cases were filed in the U.S. and consolidated in federal court in Philadelphia. Those cases were also settled on terms extremely favorable to the client. 5

6 Selected Matters Cessna Caravan 208 Icing Accidents We serve as national coordinating counsel for Cessna Aircraft Company in a series of cases pending in various jurisdictions in the United States arising from accidents involving Cessna Caravan 208 aircraft flown in alleged icing conditions. The cases involve separate actions for personal injury and wrongful death, claiming millions of dollars in damages. An MDL pending in the District of Kansas where cases have been consolidated for pretrial proceedings from Texas, Utah, Idaho, New York, Maryland, Washington, and Nebraska, recently concluded and the cases have now been suggested for remand to the transferor courts. People v. Child Craft Industries Inc., et al. We represented certain interested parties in a California Attorney General-led lawsuit concerning cribs and other baby furniture, People v. Child Craft Industries Inc., et al. (Alameda County Superior Court Case No. RG ). Avoiding litigation costs entirely, we developed an expert presentation demonstrating that the products in question posed no significant health risk. We then negotiated a de minimus settlement under which our clients collectively paid less than $30,000 and agreed to expedite implementation of the California Air Resources Board s new formaldehyde emissions requirements for all consumer products made with particleboard and other forms of composite wood products. Product Counseling We provide regular and consistent product counseling advice to all segments of the consumer product industry including manufacturers, retailers, importers, trademark licensors, and third-party labelers involving products such as children s toys, children s nursery items, eyeglasses, sporting wear, apparel, developing technology, furniture, baby strollers, cell phones, and nutritional supplements. Our expertise includes the following areas: Product Labeling and Warning Counseling Matters. We advise product manufacturers, retailers, and third-party labelers regarding the proper and most effective use of product tracking labels, warning labels, warranties, product disclaimers, instructions for product use, and product risk assessments. Product Recall Counseling Matters. We advise product manufacturers and retailers regarding recall requirements and procedures. CPSIA Counseling Matters. We advise on compliance issues with the Consumer Product Safety Improvement Act of 2008 (CPSIA) for numerous retail and manufacturing companies. 6

7 Publications SMU Journal of Air Law and Commerce Some Inconvenient Truths About Forum Non Conveniens Law in International Aviation Disasters, by Don Rushing and Ellen Adler, Volume 74, No. 2 (Spring 2009) Aircraft Accident Reports and Other Government Documents: Evidentiary Use in International Air Crash Litigation in the United States, by William Janicki, Volume 74, No. 4 (Fall 2009) Daily Journal Will Aviation Pre-emption Cases Soar? by William O Connor and Kimberly Gosling (March 2009) Australian Product Liability Reporter Enhanced Recall Regulations Proposed Under the Consumer Product Safety Improvement Act of 2008, by Robert Falk and Linda Lane, Volume 20, Issue 1-2 (May 2009) Law 360 Federal Pleading After Twombly and Iqbal Plain Statement or Plausible Grounds? by Don Rushing (August 2009) Legal Updates Proposed Federal Legislation Could Restrict Materials Commonly Used in Many Electronics and Electrical Power Products, by Robert Falk and Peter Hsiao (May 2009) Did the California Supreme Court Put Out a Welcome Mat for Consumer Class Actions? by David McDowell and William Stern (May 2009) CPSC Declines to Stay Tracking Label Requirements, by Robert Falk and Linda Lane (May 2009) Supreme Court Rules on Wyeth: State Law Claims Not Preempted, by James Huston and Stacy Kaplan (March 2009) Is the Tide Turning for California s Unfair Competition Law? by Rebekah Kaufman (February 2009) Midwest v. Braun: The Ninth Circuit s Recent Opinion on Federal Aviation Act Preemption, by William O Connor and Kimberly Gosling (February 2009) Late Breaking Changes to the CPSIA: Significant Compliance and Business Implications for Importers, Distributors, and Retailers, by Robert Falk, Linda Lane, and Stacy Kaplan (February 2009) U.S. Consumer Product Safety Commission Grants One-Year Stay, by Linda Lane (February 2009) Environmental Marketing Claims for Plastic Products Subject to Additional Requirements in California, by Robert Falk, Brooks Beard, and Peter Hsiao (February 2009) 7

8 In the News ONE OF THE TOP FIVE NOVELS FOR SUMMER 2009 Morrison & Foerster s James W. Huston is a bestselling author of seven novels. Mr. Huston s latest novel, Marine One, was published in the summer of The president rushes across the South Lawn through a pounding thunderstorm to Marine One, the presidential helicopter, to fly to Camp David late at night. His advisors plead with him not to fly, but he insists. He has arranged a meeting that only three people in his administration know about. After fighting through the brutal thunderstorm halfway to Camp David, Marine One crashes into a ravine, killing all aboard. The government blames the European manufacturer of the helicopter and accuses them of killing the president. Senate Investigations and Justice Department accusations multiply as Mike Nolan, a Marine Corps reserve helicopter pilot and trial attorney in civilian life, is hired to defend the company from the criminal investigations, then from a wrongful death lawsuit brought by the most notorious lawyer in America on behalf of the First Lady. To read more, please visit the official website for James W. Huston Awards Practice Group Rankings Chambers USA National: Transportation: Aviation: Litigation (Tier 1) Legal 500 US National: Product Liability and Mass Tort Defense: Aerospace/Aviation (Tier 1) National: Product Liability and Mass Tort Defense: Consumer Products (Tier 1) Firm and Litigation Department Rankings The American Lawyer This is the sixth consecutive year that the firm is ranked on the A-List. The list ranks the top 20 law firms that best embody what it means to be a success in the legal community. BTI Consulting Ranked eighth nationwide on the BTI Client Service All-Star 30 list, which is based on interviews with hundreds of corporate counsel at Fortune 1000 companies to discover how they define exceptional service and which law firms epitomize this high standard marks the third year we have made the list. Chambers USA Ranked in 33 practice areas, including Litigation Legal 500 US Recommended in 34 practice areas, including Litigation 8

9 Partners + Of Counsel James M. Bergin (212) Erin M. Bosman (858) Michèle B. Corash (415) Mark W. Danis Grant J. Esposito (212) Robert L. Falk (415) Arturo J. González (415) James W. Huston (858) Charles L. Kerr, Co-Chair (212) Linda L. Lane (858) Daniel P. Levison David F. McDowell (213) Heather A. Moser (415) Andrew D. Muhlbach (415) William V. O Connor (858) Dennis P. Orr (212)

10 Partners + Of Counsel Charles E. Patterson (213) Penelope A. Preovolos (415) Don G. Rushing, Co-Chair (858) Lori A. Schechter (415) Robin Stafford (415) Michael J. Steel (415) William L. Stern (415) Michael W. Vella

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