Products Liability, Mass Torts & Consumer Class Actions

Our team is a “market-leading product liability practice covering disputes in a range of fields, including consolidated and multidistrict litigation, ” and is “in high demand among clients from wide-ranging industry sectors, including pharmaceutical companies, sporting entities, and manufacturers.”
─ Chambers USA

With more than 200 published decisions on record, McCarter’s Products Liability, Mass Torts & Consumer Class Actions practice has extensive trial and appellate experience, and regularly serves as lead defense counsel or local defense counsel in large, multidistrict class action suits. Limiting liability, protecting your company’s reputation and keeping legal fees in check are always top of mind when it comes to product liability and mass torts claims. We work closely with clients to develop the most cost effective and efficient strategies to resolve the disputes and minimize protracted litigation.

For over 40 years we have defended clients in thousands of toxic tort cases, litigating complex matters related to asbestos, tobacco, breast implants, chemicals, silica and mold in both personal injury and property damage cases. At the core of our national engagements is our vast experience handling the multitude of issues and variations in state law that surround mass tort claims. 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.

Pharmaceutical & Medical Device Litigation

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We represent dozens of pharmaceutical, medical device, biotech and healthcare entities across the nation in multidistrict litigations, class actions, Daubert proceedings, as national discovery counsel related to product liability and toxic torts claims. Our attorneys address scientific, epidemiologic and complex medical issues in class action and multi-jurisdictional litigation. We draw upon this deep knowledge to design discovery and trial strategies, evaluate related scientific and regulatory concerns, and select and prepare expert witnesses.

Our “molecule to market” program counsels both leading life science companies and innovative start-up ventures on far-reaching decisions related to structuring clinical trials, pursuing in-depth research into ground-breaking medicines and devices, and how best to protect the valuable intellectual property that serves as the foundation for your success. We also provide a comprehensive overview of all legal and regulatory compliance matters associated with informed consent documents and procedures, risk management and avoidance, and pre-trial and post-trial marketing studies.

The firm has played a role in serving as national discovery counsel for numerous pharmaceutical and medical device clients. 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.

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Appellate

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Clients and industry groups have called upon McCarter to represent them on appeal in many of the country’s leading products liability cases. McCarter has for years taken the lead in developing appellate issues in the asbestos, mass tort and products litigations generally. We have served as appellate counsel for several Fortune 100 clients to assist at trial and address appellate issues as necessary. We have briefed and argued on appeal issues involving such complex areas as:

product non-identification
third generation liability
application of tort reform statutes to toxic exposure cases
apportionment of liability between concurrent causes of injury
legal proximate causation in failure-to-warn cases
the admission of expert testimony
medical causation

We have acted as amicus counsel for a number of interested parties in the New Jersey litigation on issues involving apportionment, the proof of cross claims and the admission of “company witness” testimony at trial and deposition.

McCarter has been involved in decisions that have directly shaped the course of asbestos and toxic tort litigation and developed appellate strategies to assist in changing the law in jurisdictions nationwide including Illinois and California.

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Consumer Class Actions

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Manufacturers and retailers regularly face putative class actions involving not only product liability claims but also alleged violations of various consumer fraud statutes. We possess both substantial trial experience and industry knowledge to address scientific, technical, engineering design, and complex medical issues in class action and multi-jurisdictional litigation. Our lawyers are well-versed in the substantive federal and state laws that have spurred increased putative class action filings and the applicable rules controlling class action 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.

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, in-house counsel and the business units. 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.

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Labeling, Regulatory Compliance & Recalls

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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.

Asbestos and Talc Litigation

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McCarter represents hundreds of defendants from a range of industries in high stakes cases involving asbestos and talc personal injury and property damage. Our clients include cosmetics, luxury goods, chemicals, building materials, and industrial machinery companies. We have encountered the many intricate issues associated with litigating these cases, and are proactive in identifying experts who understand and can communicate these complex scientific, medical, and technical matters on behalf of our clients. Our lawyers act in large-scale national counsel engagements with hundreds of thousands of matters. We also have vast experience with high-volume assignments at the national and regional levels.

Risk Management & Litigation Avoidance

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Our team has extensive experience in risk mitigation and litigation avoidance, leveraging decades of accumulated knowledge from handling all types of litigation. We represent clients during the research and development stage, through contract drafting, marketing and product launch to avoid potential pitfalls, decreasing potential exposure and avoiding costly litigation. We evaluate all aspects of the product from labels and warranties to selecting the appropriate dispute resolution clauses in disclaimer language. We teach clients to anticipate problems and guide them in drafting operational policies and procedures that create defensibly positions and minimize overall risk.

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Construction Defect Litigation

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The group represents home builders, general contractors, homeowners associations and manufacturers of building materials in product liability and personal injury matters. The team also handles subrogation actions involving property damage from the failure of allegedly defective products. Our lawyers have served as counsel for one of the largest home builders on the East Coast for the past decade, defending claims for construction defect, personal injury, premises liability, wrongful death claims and breach of contract. McCarter’s world-class Insurance Coverage group assists in securing policyholder rights on these matters, if necessary. The firm has an excellent track record of obtaining defense costs, indemnity and insurance coverage for our clients.

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Industrial Equipment & Machinery

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We defend manufacturers of industrial equipment, household appliances, motorized vehicles in alleged product defect, breach of warranty, property damage, consumer fraud, failure to warn, wrongful death and other personal injury matters.

Participated in the defense of expert witnesses at trial in various cases in Pennsylvania state courts on behalf of a national manufacturer of hormone replacement therapy products.

Represented Genie Industries in a product liability suit in the District of New Jersey in which the plaintiff asserted claims of design defect and failure to warn. After granting a Daubert motion to exclude expert testimony as unreliable and inadmissible, the Court also granted a motion for summary judgment, ruling that the plaintiffs had failed to provide evidence to support their claims.

Counsel for amici curiae New Jersey Lawsuit Reform Alliance and Healthcare Institute of New Jersey in appeal concerning impact of New Jersey’s statutory presumption of adequacy of FDA-approved warnings on statute of limitations analysis. Kendall v. Hoffmann-La Roche, Inc., 209 N.J. 173 (2012)

Lead counsel for 175-bed regional hospital in defense of multiple wrongful death and personal injury claims arising out of conduct of former nurse accused of killing patients with overdoses of medications.

Secured an affirmance from the Third Circuit for a global pharmaceutical company in a product liability case previously won at the trial level. The appellate court also denied a series of post-decision motions filed by the plaintiff.

Defense of numerous manufacturers in asbestos product and premises liability dockets in the State of Delaware.

Secured an order granting our motion to exclude plaintiffs’ expert testimony, and then successfully moved for summary judgment, resulting in the dismissal of all remaining plaintiffs in an MDL involving claims that a pharmaceutical innovator’s acid reflux treatment drug caused bone fractures.

Served as national discovery counsel in the defense of hundreds of cases consolidated in the Superior Court of the State of California that alleged a multinational pharmaceutical company’s blockbuster cholesterol drug causes diabetes, cardiovascular problems, and liver and kidney problems.

Served on the team that obtained summary judgment for a Fortune 500 pharmaceutical company in the PPI bone fracture multi-district litigation. After granting our motion to exclude plaintiffs’ expert testimony on general causation, the Court granted our general causation motion for summary judgment in its entirety, resulting in the dismissal of the remaining plaintiffs in the MDL. There were in excess of 1,700 plaintiffs in the MDL; plaintiffs have paid the pharmaceutical company ~$80,000 in sanctions. The company has paid no settlements, and all of the claims have been or will soon be dismissed. There are still 37 cases left in California state court, although we are hopeful that the state court judge will be influenced by the MDL court’s analysis and decision.

Serving on the defense steering committee and as national discovery counsel to a major multinational pharmaceutical business in ongoing and high-profile litigation alleging a class of heartburn drugs cause chronic kidney disease, renal failure, or other kidney problems. The representation involves over 10,000 cases, and includes appearing in Court and advising on all discovery issues related to In Re: Proton-Pump Inhibitor Products Liability Litigation, a multi-district litigation in the U.S. District Court, District of New Jersey, and in numerous state courts across the country.

Represents a multinational pharmaceutical corporation at trial level against plaintiffs’ allegation that a contaminated product caused catastrophic injury and death.

Prepared and defended company and expert witnesses in depositions in national opioid litigation.

Defending branded pharmaceutical company in litigation filed in Delaware state court by the Delaware Attorney General seeking damages in connection with the use of opioids.

Serving as trial counsel for a multinational branded pharmaceutical company in both Philadelphia Court of Common Pleas and the U.S. District Court for the District of Delaware concerning atypical antipsychotics.

Serving as national coordinating counsel for a major innovator pharmaceutical company in the defense of hundreds of claims that treatment with a widely prescribed branded statin causes diabetes, cardiovascular problems, and liver and kidney problems.

Represented an international products manufacturer in a class action arising out of allegations that the manufacturer violated provisions of the Telephone Consumer Protection Act. The client faced multi-million dollar exposure due to federally mandated penalties. We prevented class certification through efficient, targeted discovery and were able to resolve the matter successfully for the client at a significant savings. Natalie now is advising that company and others in FTC and FCC compliance to avoid litigation in the first instance.

Handled case-specific discovery in various MDL Bellwether trial cases involving female pelvic mesh.

Prepared and defended various sales representatives in HRT litigation.

Prepared expert medical witnesses for deposition and trial testimony in hormone therapy litigation and participated in the defense of witnesses at trial of national manufacturer of HRT products in various Pennsylvania state court cases.

Prepared and defended 30(b)(6) witness on key topics in national opioid litigation.

Led a team of lawyers that defeated a class certification action seeking medical monitoring of over 50,000 people allegedly exposed to contaminated drinking water.

Represented a major innovator pharmaceutical company in the defense of personal injury cases which involved claims that pain pumps cause degeneration of shoulder joint cartilage.

Serving as national discovery counsel and a member of the national trial and leadership teams representing a major innovator pharmaceutical company in the defense of over 25,000 claims that an antipsychotic medication causes weight gain, diabetes, and pancreatitis.

Represented Zimmer in the first bellwether trial in multidistrict litigation concerning Durom Hip claims, which ended in a defense verdict and judgment for Zimmer on May 12, 2015. In Re: Zimmer Durom Hip Cup Products Liability Litigation, MDL No. 2158 – Christine Brady v. Zimmer, Inc., et al (2015).

Counsel for global pharmaceutical manufacturer in defense of thousands of lawsuits alleging ingestion injuries.

Represented national automobile repair company in two-week jury trial of multi-plaintiff catastrophic injury case involving wheel separation.

National Counsel for Fortune 50 retailer in defense of several nationwide class actions alleging consumer fraud and violation of various state consumer protection statutes.

Successfully obtained dismissals on behalf of various asbestos manufacturers in Philadelphia Court of Common Pleas.

Represent heat exchange manufacturer in litigation involving coverage for hundreds of asbestos lawsuits under liability policies.

Litigating complex liability coverage matter arising from asbestos and silica lawsuits relating to the manufacture of pneumatic tools.

Advise cement manufacturing company regarding liability coverage for asbestos and silica lawsuits.

Secured defense and indemnity coverage under primary liability policies for thousands of asbestos lawsuits by disproving the insurer’s late notice defense.

Defending a multinational branded pharmaceutical company in MDL and coordinated state court litigation in the Delaware Superior Court concerning proton pump inhibitors.

Represented a number of Fortune and Global 1000 companies in personal injury cases involving claims of exposure to benzene, venued in Northern and Southern California.

Convinced the Illinois Appellate Court to maximize coverage for hundreds of asbestos lawsuits by finding multiple “occurrences” under umbrella and excess policies. Successfully opposed petition for leave to appeal to the Illinois Supreme Court.

Represented multinational electronics maker in litigation filed in Delaware Superior Court related to injuries sustained from allegedly defective lithium-ion batteries.