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  • "They are a specialist firm in product liability; they know that area inside out and are extremely immersed in it."

    "They are well established, reputable and do good work."
    - Chambers USA

Product Liability

Nationally recognized, our wide-ranging practice encompasses single-plaintiff matters, class actions, statewide and regional representation as well as experience serving as national coordinating counsel for Fortune 500 companies. We have extensive trial experience and often try cases to verdict. Our team serves as lead counsel or local counsel. We have also filed amicus briefs in landmark appeals at the request of industry and trade associations.

Our diverse clientele includes, among others, pharmaceutical and medical device manufacturers; food and supplement producers; distributors and manufacturers of asbestos, silica, fertilizers, pesticides and chemicals; home builders; and manufacturers of industrial machines, machine and automotive parts, building materials, construction equipment and consumer products.

Because we monitor changes in the laws that regulate our clients’ industries, we are often able to help them avoid litigation altogether. We strive to curb costs wherever possible, shortening case life and disposing of matters quickly. When the need arises, however, our experience in handling trials and appeals across the U.S. has helped clients secure favorable results while sometimes making new law. We have played leading roles in many class action and multidistrict litigation matters, including class certification proceedings and hearings on the admissibility of medical and scientific expert testimony. The group has led the negotiation, implementation and administration of global and class action settlements, some of which have attracted broad media attention.

The group was recognized as the 2013 Litigation Department of the Year in the Product Liability category by the New Jersey Law Journal.

In 2015, Chambers USA ranked McCarter’s Products Liability team alone in Band 1 for New Jersey. Clients have commented:

“They deliver timely and cost-effective legal services and practical advice, combined with superior local knowledge of the courts and opposing counsel.”

“Responsive lawyers at the top of their game.”

“Superb performance – they are efficient, strategic and commercially minded, and get great results.”

“They have a forward-thinking, constructive approach to dealing with opponents. They are a well-respected and experienced bunch with a huge resource base.”

Mass Tort Litigation

We have defended companies in this area for more than 40 years, litigating complex matters related to asbestos, benzene, tobacco, breast implants, pharmaceuticals, chemicals, radiation, pollution, silica and mold in both personal injury and property damage cases. At the core of our national counsel engagements is our vast experience handling the multitude of issues and variations in state law that surround mass tort claims. We have managed tens of thousands of cases, for hundreds of clients, involving difficult issues such as disease causation, theories of non-identification liability and “third generation” liability. The group has developed and implemented case management and resolution programs involving thousands of pending and potential claims in state and federal court, including the administration of claims resolution programs.

We also have often been responsible for selecting, training and coordinating the activities of local counsel in various states and abroad; preparing pre-trial discovery responses, document production responses and pre-trial motions; tracking and analyzing medical and scientific literature; selecting and preparing expert witnesses; developing expert testimony; challenging dubious experts and junk science; and, of course, trying cases. Trials of our toxic tort cases range from single-plaintiff/single-defendant matters to mass consolidated cases with scores of plaintiffs and dozens of defendants.

Pharmaceuticals

McCarter has decades of experience defending pharmaceutical manufacturers, distributors and retailers in complex, single-plaintiff, mass tort and class action matters pending in federal and state courts. We serve as national, regional, local and issue counsel in litigation involving product liability, medical monitoring claims, federal preemption, the possibility of punitive damages, epidemiological analysis of causation and Daubert (and its state law equivalents) proceedings to exclude dubious expert testimony. The team has litigated numerous bet-the-company cases over statins, antidepressants, antipsychotics, proton pump inhibitors and hormone replacement therapies, to name a few. Our attorneys address scientific, epidemiologic and complex medical issues in class action and multi-jurisdictional litigation. We regularly practice before the Judicial Panel on Multidistrict Litigation and have broad expertise employing creative initial and long-term procedural and substantive dispositive strategies, including strategies to limit initial discovery.

The innovative strategies we employ often result in broad, swift dismissals of otherwise challenging actions. With a deep bench of partners, counsel and associates, McCarter meets client demands without sacrificing quality, timeliness or personal attention. We work with clients' audits of products both before and after launch and counsel on preventative measures and risk management to avoid or limit the need for litigation.

The firm specializes in serving pharmaceutical companies as national discovery counsel. Our decades of experience handling large-scale document and data productions enable us to assist our clients in complying with the increasing burdens of document and electronic data retention. We routinely advise on records management and ESI issues in small actions and large, complex MDL litigations. Our experience includes management of the largest and most compressed ESI pharmaceutical litigation production effort in the history of e-Discovery. We offer a wide range of comprehensive records management and e-Discovery solutions that address risk management and the four stages of the e-Discovery life cycle: preservation, collection, review and production. McCarter possesses unique, substantive industry and legal knowledge as well as technical expertise in e-Discovery. Our team members participate in industry speakers' platforms and think tanks, and also act as policy writers with groups such as the Sedona Conference Working Group, ensuring that we are current on existing law and anticipated trends.

Class Action

The impact of a major lawsuit and the ensuing media fallout can be distressing. An unfavorable outcome in any such case can adversely impact public perception and future revenues. Manufacturers and vendors of products and services regularly face putative class actions involving not only product liability claims but also alleged violations of various consumer fraud statutes. Prevalent anti-business consumer protection statutes have spurred increased putative class action filings and generated complex corporate governance issues. Our lawyers are knowledgeable of substantive federal laws, the full gamut of state-specific consumer protection statutes, and applicable rules controlling class action litigation.

In the modern mass litigation era, McCarter has handled a wide variety of class actions, multidistrict litigations and other multi-claimant proceedings involving substantial corporate exposure and requiring creative lawyering and coordination among outside counsel, inside counsel and the business client. We have decades of experience proactively challenging class action claims, defending against the certification of class actions and, if certified, defending against the claims on their merits. As national counsel to several top insurance companies, pharmaceutical companies, and consumer product manufacturers and sellers, McCarter has negotiated and managed some of the nation’s most significant class action settlements.

Medical Devices

Our lawyers represent medical device manufacturers in cases in federal and state courts across the country, including national and regional counsel representation of several clients. This work includes the defense of single claims as well as the representation of clients in MDL and other consolidated proceedings. We have handled cases involving implantable devices utilized across a range of medical specialties, including orthopedic (implantable knees, hips, fixation devices, etc.), vascular (ports, stents, catheters, etc.) and cardiac (defibrillators, pacemakers, valves, etc.), among others, as well as in connection with scores of other cases involving a variety of implantable devices and surgical tools. We also represent manufacturers of exercise, rehabilitation and durable medical equipment.

We counsel on risk avoidance and provide strategic guidance concerning informed consent documents and procedures, risk management and the host of issues presented by pre-trial and post-trial marketing studies and surveillance. In this arena, we support our clients’ regulatory and compliance obligations, representing them in government investigations and prosecutions. We also provide due diligence and other support in connection with acquisitions.

The team is supported by in-house scientists who provide technical assistance on scientific and medical issues, including the identification and analysis of relevant scientific and medical literature, and the selection and preparation of litigation experts. Closely aligned to this litigation, product development and risk avoidance work for device manufacturers, we also represent these clients in a broad range of intellectual property matters.

Counseling on Claims Avoidance & Regulatory Compliance

We help pharmaceutical and medical device manufacturers, energy companies, pesticide and chemical companies, and auto parts and consumer products makers manage risks associated with marketing and distribution. Collaborating with our clients, we craft claims avoidance strategies from the conception of a medicine or consumer product through its design, manufacturing and marketing. For pharma clients, our “molecule to market” advice covers informed consent documents and procedures, risk management and avoidance, and pre-trial and post-trial marketing studies. McCarter’s in-house team of scientists provides technical assistance.

Food and Drug Administration

We advise pharmaceutical companies with respect to their rigorous obligations before the FDA under the Food, Drug & Cosmetics Act and the accompanying regulations in Title 21 of the Code of Federal Regulations. Our team also advises manufacturers, distributors and importers with respect to the relevant regulatory requirements in connection with food, food additives and dietary supplements, including GRAS ratings and USP and NF requirements. The group offers strategic planning and risk management guidance regarding compliance with various federal regulatory entities including the FDA, EPA, USDA and FTC. We provide regulatory consulting services on legal and compliance issues during the development, marketing and distribution phases of our clients’ products. We also handle federal and state enforcement matters, whether it involves appearing before a regulatory tribunal or negotiating the resolution of a claim.

The clinical trial team advises life sciences clients on a wide range of complex issues during Phases I-IV of the FDA clinical trial process. We handle various transactions with clinical research organizations; private, public and government research institutions; and principal investigators. We draft and negotiate multiple agreements, including master service agreements, clinical trial agreements and patient informed consent forms for research sites in the U.S., Canada, Germany, Australia, Taiwan, Thailand, Indonesia, Malaysia and Vietnam. The group drafts independent data monitoring committee charters and member agreements. We also assist clients in responding to inquiries from the FDA and counsel on HIPAA and Medicare compliance issues.

Consumer Product Safety Commission

Our lawyers advise on Consumer Product Safety Commission (CPSC) regulations and requirements, including Section 15 and 37 reporting, and all aspects of national product recall campaigns. We constantly monitor CPSC developments, helping clients sidestep legal actions and develop warning labels, packaging, package inserts and material safety data sheets to communicate information on safe use and potential product hazards. The team assists with issues including:

  • Whether to conduct a recall
  • Scope of products to be recalled
  • Potential remedy offered to consumers
  • Filing reports with the CPSC or other agencies
  • Procedures for implementing and tracking a recall
  • Responding to Freedom of Information Act requests
  • Potential media impact of conducting a recall

We represent manufacturers, distributors and retailers of consumer products such as clothing, children's sleepwear, electrical appliances, swimming pool equipment, household appliances, glass products and candles, among many others.

Representative Matters

Counsel to major chemical manufacturers and medical device companies in breach of contract actions; counsel to business in trade secret/unfair competition claims. Recent representative matters include:

  • Ozburn-Hessey Logistics, LLC v. 721 Logistics, LLC, et al, 2014 2:12-cv-00864-LFR (E.D. Pa., 2014). (Judgment on all claims in successful defense of customs broker against claims of unfair competition, theft of trade secrets and civil conspiracy) 
Trial Counsel for Zimmer in first bellwether trial in multi-district litigation concerning Durom Hip claims, which trial ended in a defense verdict and judgment for Zimmer on May 12, 2015.
Member of trial team for Zimmer in first bellwether trial in multi-district litigation concerning Durom Hip claims, which trial ended in a defense verdict and judgment for Zimmer on May 12, 2015.

Counsel to manufacturers of school buses, chemicals, industrial machinery and plumbing products, as well as laboratory operators and facilities. Representative matters include:

  • Rockingham Cas. Co. v. Fluidmaster, Inc., 2012 WL 692579 (W.D. Pa., January 09, 2012). (Successful Daubert challenge to exclude all relevant opinions of plaintiff’s sole engineering expert)

Speaking

08/10/15
2015 Annual International Solid Freeform Fabrication Symposium - An Additive Manufacturing Conference
06/30/15
06/12/15
Delaware Trial Lawyers Association 2015 Annual Convention
06/02/15