Product Liability

Mass toxic tort cases in every part of the world continue to generate high-profile media coverage and result in significant judgments against manufacturers in a wide variety of industries. The firm's product liability lawyers have built a national reputation defending companies in this field for more than a quarter century, litigating complex matters related to asbestos, tobacco, breast implants, pharmaceuticals, chemicals, radiation, pollution, silica and mold, in both personal injury and property damage cases.

Central to the group's capabilities (and the genesis for all of our national counsel engagements) has been our experience in handling mass toxic tort litigation case-by-case, county-by-county, and state-by-state. On a national basis, we deal with the multitude of issues and variations in state law that surround mass tort claims. Our attorneys have handled hundreds of cases involving complex issues such as cancer causation, fear of cancer and theories of non-identification liability and "third generation" liability. Included within that group are trials of toxic tort cases ranging from single plaintiff/single defendant matters to mass consolidated cases with scores of plaintiffs and dozens of defendants.

DES Litigation – Eli Lilly and Company. Since the 1970s, the firm has successfully defended Eli Lilly in litigation arising out of the use of diethylstilbestrol by pregnant women in the 1950s and 1960s. Our lawyers have won individual trials and successfully defended against efforts to certify plaintiff and defendant class actions in DES litigation in New Jersey. The firm has also represented Eli Lilly in New York DES litigation, and defeated multiple efforts by plaintiffs to persuade New Jersey and New York courts to create novel theories of non-identification liability to the detriment of pharmaceutical (and other) manufacturers of consumer goods.

Phenylpropanolamine (PPA) Litigation – Novartis Consumer Health. The firm represents Novartis in these cases in New Jersey's mass tort court, and won the first PPA trial to go to verdict in the nation (Kronfeld v. Novartis, Superior Court of New Jersey, January 2004, selected by the National Law Journal as one of the "top ten" defense verdicts in 2004). Our lawyers also won the first PPA diet aid case to go to verdict in the United States (Adams v. Novartis, Superior Court of New Jersey, May 2005).

Silicone Breast Implant Litigation – Bristol-Myers Squibb Co. For over ten years, the firm was national coordinating counsel in the defense of breast implant litigation. The firm was primary counsel in all phases of the litigation, which involved the defense of more than twenty thousand cases and claims nationwide. McCarter & English also defended class action claims, played a major role in crafting and implementing a global settlement of a very substantial segment of the litigation, and continues as primary defense counsel administering the final phase of the settlement.

"K-Dur" Litigation – Schering-Plough Corporation. The firm represented Schering-Plough Corporation in a class action brought on behalf of all purchasers of the pharmaceutical product "K-Dur." The plaintiffs alleged that an agreement between Schering-Plough and ESI Lederle Incorporated concerning "K-Dur" unlawfully increased the price of that product in violation of the New Jersey Consumer Fraud Act.

Stadol® Litigation – Bristol-Myers Squibb Co. The firm successfully defended BMS in several attempts to certify nationwide classes of users of the prescription medicine Stadol® for medical monitoring purposes. See Fisher v. Bristol-Myers Squibb, 181 F.R.D. 365 (N.D. Ill. 1998) and Dhamer v. Bristol-Myers Squibb, 183 F.R.D. 520 (N.D. Ill. 1998).

Prozac® Litigation – Eli Lilly and Company. In the early-1990s, Lilly chose McCarter & English to be a national coordinating counsel for litigation and collateral matters involving its antidepressant, Prozac®. As national counsel for one of Lilly's highest profile medicines, the firm represented Lilly in all aspects (including trials and appeals) of this nationwide litigation.

Rezulin Litigation - Pfizer and Warner-Lambert. The firm represented Pfizer in Rezulin litigation in New Jersey, Delaware and Eastern Pennsylvania.

Amicus efforts - The firm has represented the PhRMA and the New Jersey Business and Industry Association as amici before New Jersey appellate courts in cases involving direct to consumer advertising of prescription medicines, challenges to protective orders, and efforts to certify classes under the New Jersey Consumer Fraud Act.

For most of the modern mass litigation era, the firm has handled a wide variety of class actions, multi-district litigations, and other multi-claimant proceedings. These often involve substantial corporate exposure and require close cooperation among outside counsel, inside counsel and the business client, creative lawyering, and daunting logistics. The firm has decades of experience in defending against the certification of class actions and, if the class ultimately is certified, defending against the claims on their merits.

Our lawyers have substantial experience representing medical product manufacturers on local, regional and national levels, defending cases involving an array of surgical tools, diagnostic and therapeutic medical devices, implants and durable medical equipment. Our work has ranged from service as national and regional counsel in litigations involving breast implants, heart valves, and other devices, to the defense of individual Class I, II and III medical device cases. We have defended and tried these cases throughout the country.

In some large-scale medical product litigations, our lawyers have been responsible for selecting, training and coordinating the activities of defense counsel in all 50 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, briefing congressional and agency staff, and trying cases.

We have helped clients manage the risks associated with the marketing and distribution of all types of medical devices. We provide strategic guidance to medical device companies, providing advice with respect to informed consent documents and procedures, risk management and avoidance, and a host of issues presented by pretrial and post-trial marketing studies. In short, we are retained by clients to help them steer clear of liability, as well as deal with lawsuits.

Our in-house team of scientists and information professionals provide our lawyers technical assistance with respect to scientific and medical issues. They identify and analyze relevant scientific and medical literature, identify and prepare experts, and provide a wealth of technical assistance in the areas of medicine, epidemiology and allied fields.

In addition, we have a state-of-the-art records management and litigation support facility adjacent to our main office in Newark, New Jersey.  This facility maintains the technology designed to locate, image, store, search and retrieve documents and make them accessible on a moment's notice whenever client or attorney needs dictate.

Our Consumer Product Safety Commission attorneys advise clients on all aspects of CPSC regulations and requirements, including Section 15 and 37 reporting requirements and national product recall campaigns. 

Our product recall experience covers the full range of issues such as whether to conduct a recall; the scope of products to be recalled; the potential remedy offered to consumers; the need to file any required reports with the CPSC or other government agency; the procedures used for implementing and tracking a recall; the filing of required progress reports with the Commission after implementing a recall; responding to Freedom of Information Act requests identifying a company; and the potential media impact of conducting a product recall. 

We have been involved in these issues on behalf of manufacturers, distributors and retailers of a wide variety of consumer products including clothing, children's sleepwear, electrical appliances, swimming pool-related items, household appliances, glass products, candles, and many others.

Debtors in, or nearing, bankruptcy often attract fraudulent conveyance claims related to sales or transfers of assets, sometimes made years in the past. These claims, brought against the transferees, and occasionally officers and directors, may seek return of the assets, monetary damages or a declaration that the transferee is the successor to the debtor's liabilities. A declaration of successor liability where the debtor is a defendant in asbestos or other mass tort litigation can be devastating, or even fatal, to the business of a transferee.

The firm has defended clients in many cases alleging fraudulent conveyance. This includes a landmark decision demonstrating that a company facing significant liabilities can divest assets, and a third-party can purchase them, without running afoul of fraudulent conveyance laws, even if the transaction is between related companies and designed to manage liabilities, as long as the creditors aren't "injured" by the transaction.

Product liability claims can drain substantial resources from a company's bottom line.  Our product liability attorneys provide counsel and participate in claims avoidance strategies from the earliest planning stages of a consumer product or medicine, through design, manufacturing and marketing.

Our years of experience in obtaining Consumer Product Safety Commission approvals and representing companies in products liability litigation enable us to help advise clients on avoiding unnecessary legal entanglements. We help clients develop warning labels, packaging, package inserts and Material Safety Data Sheets to communicate information on safe use and potential product hazards.

Our attorneys have counseled a wide variety of industries including pharmaceutical and medical device manufacturers, bulk and end product manufacturers, chemical companies, aircraft manufacturers and nuclear electric utilities. Our clients include distributors and manufacturers of asbestos, silica, pesticides, and chemicals, as well as industrial machines, machine parts, building materials, and consumer and automotive products.