As manufacturers of industrial and consumer products face increased scrutiny in today’s global marketplace, Kelley Drye assists companies across the supply chain successfully handle products liability claims. We represent wholesale distributors, suppliers, retailers and manufacturers facing claims and class actions relating to consumer protection, negligence, strict liability, and breach of warranty, among others.
We have experience representing clients worldwide before such bodies as the London Court of International Arbitration, the International Chamber of Commerce and various international claims tribunals.
Most notably, Kelley Drye’s litigators regularly manage large, complex cases as National Coordinating Counsel on behalf of clients with operations nationwide. We are not afraid of trial and will assertively tackle adverse claims in court. However, we carefully measure each clients’ circumstances and assess if an out-of-court settlement may be more appropriate. Our track record of aggressive settlement negotiations
is renowned for favorable resolutions for our clients.
- Technology and Efficiency. We employ cutting edge technologies such as proprietary databases, extranets and project management applications to communicate up-to-the-minute status reports with our clients and local counsel and to mine and manage data for expert discovery, testimony, and depositions.
- Managing The Right Team. Kelley Drye’s seamless approach to organizing the right teams enables our clients to focus on their business rather than on legal details. Importantly, our ability to maintain excellent working relationships with local counsel; medical, environmental and econometric experts enables us to implement a consistent litigation strategy.
These relationships are a testament to our firm’s strength in products liability defense.
- Experience and Leverage. Kelley Drye offers a deep bench of practical experience across legal disciplines so that our clients can benefit from our single-point-of-contact legal services. We offer a team-based approach to resolving our clients’ large cases which may involve class action defense, insurance recovery, consumer product safety, issues relating to
unfair or deceptive advertising or marketing, white collar criminal defense and investigations, and environmental law.
Our experienced litigators serve as trial counsel on some of the most high-profile cases in history such as issues involving PCBs, Agent Orange, latex gloves, breast implants, national asbestos litigation, global events such as the Bhopal, India gas disaster trials. Because we built our practice while mass torts came of age, Kelley Drye has amassed the experience and resources needed to skillfully and cost-effectively defend today’s complex cases
and to defend smaller cases with the same level of prowess and resolve.
Kelley Drye’s clients are innovators. We help them retain their competitive edge by advising on strategies that shield them from legal problems ahead. At every phase of product development we are prepared to help clients anticipate and address potential exposures to harmful legal claims. As skilled advisors with deep experience working with numerous types of companies, we are able to provide our clients with preventive counseling and risk identification.
By understanding where the possible exposures are, companies can make remediation procedures to avoid litigation altogether. These preventive measures may involve legal advice regarding:
- Labeling, instruction and warranties
- Advertising and marketing
- Contracts and purchase orders
- Compliance programs and employee training and education.
Should concerns about a product arise after it goes to market, we advise on actions our clients should take to preclude a product liability claim.
Kelley Drye strategically manages resources and those of local counsel to provide cost-effective solutions in national coordinating counsel matters of all breadth and scope. We analyze and evaluate matters in light of our clients’ goals, the potential exposure and risk, and allocate appropriate personnel to handle these matters efficiently and with a focus on cost containment.
For example, standard form interrogatory responses are handled by experienced paralegals and then reviewed by attorneys. Our experience and expertise as National Coordinating Counsel enables us to quickly identify matters which require the more specialized attention of our experienced litigation practitioners. This critical review and analysis is the foundation of Kelley Drye’s
budgeting and budget tracking services, which allow us to effectively estimate the costs associated with large, complex litigations.
In its role as national coordinating counsel, the services Kelley Drye provides include:
- analyzing individual cases to determine potential exposure, risk and cost of litigation;
- developing or utilizing existing network of local counsel as well as supervising and coordinating local counsel’s activities;
- conducting thorough fact research and investigation by reviewing relevant documents and interviewing key witnesses;
- creating document repositories and electronic document databases for information common to multiple actions;
- setting up expert witness information banks;
- crafting standard and consistent responses for discovery, including document requests, interrogatories, and requests to admit;
- creating and maintaining memo banks of legal research issues and legal briefs;
- overseeing and approving court submissions;
- negotiating and approving settlements; and
- legal fee containment services.
As coordinating counsel, Kelley Drye has handled various actions including bodily injury and property damage claims. As national coordinating counsel for Union Carbide’s asbestos claims we have coordinated and overseen product exposure actions property damage cases, and insurance coverage matters.
In short, we have a long and continuing history of success coordinating major complex litigation, selection, support and economic supervision of local counsel, coordination of all discovery measures (and its avoidance - in Bhopal we were able to limit depositions to four and got protection for the secrecy of all documents produced), coordination of related stockholder, tort and criminal litigation as well as legislative hearings, all subject to intense and frequently initially hostile
media interest, dealing or litigating with government agencies, both federal and state, managing and litigating maritime matters, selection and preparation of expert witnesses, establishing and maintaining document depositories pursuant to agreement of counsel or court order, successful preparation and negotiation of complex sharing agreements between defendants, computer data storage control and retrieval (both in-house and through outside litigation support services), pleadings,
cross-claims and counterclaims, utilizing mock juries (in-house, and through outside specialists in jury research, selection and issue-testing), motion practice, trial preparation, tactics in litigation where both state and federal suits are brought, multi-district federal litigation, class actions, trials, appeals and the precious moments to obtain good settlements.
We know the plaintiffs bar and the insurance industry. We know how to manage costs and results.
Over the years we have found that gaining a firm grasp of the industries in which our clients operate is especially important to obtaining a favorable outcome in products liability cases. In particular, Kelley Drye keeps a close tab on the industries and products that repeatedly turn up in the cross-hairs of the plaintiffs’ bar. There are certain proprietary and unique challenges facing clients that produce and distribute pharmaceuticals, medical devices, recreational products, chemicals, and other products, and Kelley Drye requires no learning curve to get started on resolving a case quickly. Clients have relied on us for skillful defense of both small and larger-scale cases involving:
- Pharmaceuticals: Phenylpropanolamine, Accutane, Oraflex, Hismanal, L-Tryptophan, Stadol, Prozac, DES, oral contraceptives, anti-hypertensives and ulcer medications.
- Medical devices and products: pacemakers; IUDs; latex gloves; Pap smears; interventional cardiovascular devices, neurological and general surgical devices.
- Asbestos, Lead-based Paint
- Semiconductor industry chemicals: glycol ethers, acetone, n-butyl acetate, isopropyl alcohol, positive and negative photoresists, trichloroethylene, tetrachloroethylene, acrylic polymers; formaldehyde; cresol; acetaldehyde and epichlorohydrin.
- Chemicals and their by-products: PCBs; methyl isocyanate; dioxin; formaldehyde; ethylene oxide; hydrogen sulfide; carbon disulfide; acetone; acetylene; ethyl alcohol; polyurethanes; hydrocarbons; toluene diisocyanate; polyvinyl chloride; glycol ethers; and dioxane.
- Herbicides, pesticides and agricultural chemicals, including Agent Orange (2,4-D; 2,4,5-T), Temik, Carbaryl and Treflan.
A products liability class action or mass tort case not only threatens a company with financial loss, but also with the potential for a product recall, criminal prosecution, and regulatory scrutiny and enforcement. That kind of multi-pronged threat demands a multidisciplinary response.
We are able to tackle legal challenges inherent in a complex products liability and mass tort action.
Kelley Drye’s capabilities are not limited to litigation defense, but include all aspects of products liability/toxic tort practice, including, among other things, advising and counseling clients with respect to product labeling and warnings, risk management counseling and numerous other
litigation prevention counseling activities. In addition, several of our partners and associates have acted as in-house counsel to many of the firm’s clients. In this capacity we have both supervised and conducted litigation on a national and international scale and provided counseling
services on litigation avoidance related issues.
The Kelley Drye Products Liability team includes practitioners contributing from our:
- Advertising and Marketing Law. Defends actions alleging unfair and deceptive trade practices.
- Consumer Product Safety. Helps clients deal with disclosure and recall demands of the Consumer Product Safety Commission.
- White Collar Litigation and Investigations. Employs targeted and swift internal investigations and defense of companies or individuals facing enforcement or criminal actions.
- Insurance Recovery. Helps clients derive maximum benefits under their insurance contracts.
- Environmental Law. Practitioners advise on compliance and regulatory strategies to best avoid prosecution.
- Kelley Drye successfully defended Sandoz, Inc., a major pharmaceutical manufacturer and distributor, in a personal injury action involving claims of negligence, breach of warranty and strict product liability arising from a severe adverse reaction to an intravenous prescription pharmaceutical knows as cefazolin sodium. Immediately upon receiving cefazolin intravenously, plaintiff experience anaphylaxis, dropped his blood pressure, turned blue and stopped breathing.
He was revived by the medical staff, but suffered a myocardial infarction as a result of the experience. Kelley Drye was able to settle the action for “nuisance value” immediately before depositions were to commence, by demonstrating to the satisfaction of plaintiff’s counsel that there was no factual or legal basis to plaintiff’s claims of product contamination, that plaintiff’s claim of inadequate warnings lacked foundation since the product literature specifically
warned of allergic reactions and anaphylaxis, and there had been no measurable exacerbation of plaintiff’s prior heart condition as a result of the myocardial infarction.
- Defended a national medical testing laboratory in litigation involving allegations that the labs negligently failed to accurately diagnose the presence of cancer in the plaintiffs.
- Kelley Drye successfully defended ADT Security Systems, an international alarm service company, for more than twenty years in hundreds of litigations involving claims of negligence, gross negligence and breach of contract where the plaintiffs sustained significant property damages as a result of fires, water damage and/or burglaries in which the alarm systems at the premises malfunctioned, were bypassed or otherwise failed to perform as designed and represented.
- We represented GTE Corporation in a complex arbitration over insurance coverage for a $100 million satellite. The case involved highly technical details of a dispute involving alleged product failure.
- We represented GTE Corporation in litigation arising out of a gas pipeline explosion next to a highway in Venezuela that occurred during the construction of a fiber-optic telephone system. To date, we have obtained dismissals of two of the three active litigations brought by multiple plaintiffs allegedly injured in the explosion.
- Represented Union Carbide Corporation in all aspects of litigation arising out of the gas leak in Bhopal, India, including consolidating 147 separate cases filed in the United States of over 500,000 claimants; dismissal of all of those suits to India; defending and ultimately settling all the civil litigation in India; and conducting an extensive multi-year investigation in a hostile environment which ultimately determined the cause of the disaster.
We handled Congressional committees and regulators and preparing clients to testify before them, working with all kinds of medical, engineering, toxicological and scientific technical experts and consultants and working extensively with insurers and local counsel.
- Defended major pharmaceutical companies in actions alleging severe adverse reactions to various prescription pharmaceuticals.
- Served as National Coordinating Counsel for Life Fitness, a division of Brunswick Corporation; and as National Coordinating Counsel for Brunswick Corporation's former bicycle division, Pacific Cycle.
- Johnson & Johnson as National Coordinating Counsel in the latex glove multi-district litigation. We coordinated the defense in over 470 cases pending in 25 separate jurisdictions. This effort involves direct oversight of 35 firms serving as local counsel, as well as working closely with multiple co-defendants in each jurisdiction.
We also serve as liaison counsel for the entire defense group in both the New York and Illinois coordinated state proceedings. Further, we tried the first case, (Steffen v. Johnson & Johnson Medical), in Dallas to a defense verdict against the firm Baron & Budd.
- Union Carbide Corporation as National Coordinating Counsel in the breast implant litigation. At its peak, this involved coordination and management for approximately five thousand cases pending in over thirty-five jurisdictions. We successfully argued a motion for summary judgment before the MDL Coordination Court. As a result, all but a small percentage of the cases
against Union Carbide have been dismissed.
- Kelley Drye represents Laboratory Corporation of America in a series of severe personal injury/wrongful death actions involving claims of negligence and medical malpractice with respect to the alleged misdiagnosis of various acute and chronic medical conditions including: T-cell lymphoma; breast cancer; prostate cancer; gastric cancer and kidney failure. Kelley Drye has
also represented LabCorp in wrongful death actions involving claims that LabCorp failed to accurately monitor patients on anticoagulation drug therapy which resulted in death by pulmonary embolism and stroke. Kelley Drye successfully obtained dismissal of the prostate cancer case upon summary judgment motion at the conclusion of discovery, dismissal of the kidney failure case
(which involved allegations of significant cognitive impairment) early in the discovery phase of the litigation, and a nuisance value settlement of the pulmonary embolism wrongful death action. The lymphoma, gastric cancer and stroke cases are scheduled to go to trial later this year. As a result of this work Kelley Drye has developed a significant expertise in all aspects of
medical-legal malpractice/product liability litigation and a significant contacts with expert medical witnesses in a variety of medical disciplines which can be drawn on in future litigation in this field.
- Obtained favorable settlement for Zebco Corporation in an amputation case involving an allegedly defective component part used in conjunction with a radial saw.
- Served as co-trial counsel in case in which manufacturer's alleged negligence resulted in an above-the-knee amputation. A favorable settlement was reached while the jury was deliberating.
- Defended chemical and industrial gas manufacturers in a variety of toxic tort actions pending in various state and federal jurisdictions throughout the United States.
- Represented the manufacturer of a resin used to make polyethylene pipe in an action seeking indemnification for wrongful death claims, personal injuries and property damage arising from a building explosion. The plaintiff in that action, a large utility, also sought recovery for the replacement of hundreds of miles of polyethylene pipe throughout its system.
Also represented the resin manufacturer in connection with a National Transportation Safety Board investigation into the explosion.
- Kelley Drye has successfully defended major chemical manufacturers such as Union Carbide Corporation, KTI Chemicals, The Dow Chemical Company and Honeywell International in multiple toxic tort actions involving allegations of personal injuries (i.e., severe birth defects and/or various cancers) sustained by current and former semiconductor industry employees and their offspring.
The chemicals to which the plaintiffs in these actions were allegedly exposed included, inter alia, 2-ethoxyethanol (Cellosolve), 2-ethoxyethyl acetate (Cellosolve Acetate), 2-methoxyethanol (Methyl Cellosolve), 2-methoxyethyl acetate (Methyl Cellosolve Acetate), 2- butoxyethyl acetate (Butyl Cellosolve Acetate), various photoresists, acetone, benzene, butyl acetate, 2,1,5-diazonaphthoquinone
sulfonate and 2,3,4-trihydroxybenzophenone. Attorneys with Kelley Drye acted as Liaison Counsel for a group of 17 chemical supplier defendants in these actions. In this position Kelley Drye handled all court appearances, court conferences and oral arguments to the extent they involved issues common to all defendants. Despite our clients’ profile as “target defendants”, each of the 200+ plaintiffs’
claims were ultimately dismissed or settled for an amount which was highly favorable to the client.
- As national counsel for Robertshaw Controls Corp., we co-ordinated the defense of cases involving 98 deaths and hundreds of serious burn injuries in litigation alleging defectively designed hot water heater controls involving claims of substantial compensatory and punitive damages. All cases were resolved with insurance funding.
- We have advised Otis Elevator Company in coordinating its nationwide defense of product liability cases.
- We represented Union Carbide in litigation brought against its popular insect spray, OFF, in New York State Supreme Court. We brought the case to the New York State Court of Appeals to overturn the verdict and reached a successful settlement for our client.
- We served as national co-ordinating counsel throughout the United States for the defense of Twin Laboratories in the L-Tryptophan litigation.
- Former asbestos manufacturer Owens Corning as both national “steelworker” counsel and trial counsel. In that capacity, we participated in the settlement of the Lone Star litigation in Texas and tried over 15 cases against the most prominent national and local plaintiff asbestos firms.
- Union Carbide and Praxair as National Coordinating Counsel in actions involving claims of injuries following alleged exposure to ethylene oxide, a gas used by hospital and medical supply manufacturers to sterilize medical devices. We continue to represent many of the nation’s leading manufacturers of sterilant gases and chemical sterilant compounds.
- We acted as national counsel to Hercules, Inc., in 455 Agent Orange suits including class actions claiming 2.4 million class members. We obtained dismissal of Hercules (the only major manufacturer of Agent Orange to be dismissed) on a theory which we developed and factual investigation which we pursued. The case involved claims of U.S. veterans that their alleged exposure to the defoliant Agent Orange
in Vietnam resulted in numerous injuries and deaths. The class action was settled in 1984, however, the claims of several hundred veterans who opted out of the settlement were dismissed on defendants’ motion for summary judgment. We were also involved in later attempts to resurrect the Agent Orange litigation; again, we prevailed on a motion for summary judgment. More recently, Kelley Drye took the lead in
Agent Orange litigation in Texas. We successfully briefed and argued in the district court a summary judgment motion on behalf of all defendants. The dismissal was affirmed by the Fifth Circuit.
- Represented Union Carbide in a series of trials involving carbon disulphide which were originally brought in numerous jurisdictions including New Orleans, Arkansas and Memphis. Kelley Drye successfully moved the cases to Tennessee federal court and obtained a defense verdict in one case; and obtained a plaintiff verdict being overturned on appeal in another. We reached favorable settlements in the other cases.
- A large chemical company and a pharmaceutical company in the comprehensive defense of their products before legislative bodies seeking to limit or ban the use of the products and before agencies regulating the marketing of such products. Such representation required coordination with all aspects of the products’ development and distribution.
- Defended major chemical manufacturers in multiple toxic tort actions involving allegations of personal injuries (i.e., severe birth defects and/or cancers) sustained by current and former semiconductor industry employees and their offspring. In those cases, roughly 200 plaintiffs alleged various injuries, including birth defects and different types of cancers, allegedly caused by exposure to a wide variety of industrial
chemicals in the workplace, including ethylene glycol ethers, acetone, benzene, n-butyl acetate and other chemicals.
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