Who Reps 2012: Case of the Last-Minute Subs

Shannon Green

Corporate Counsel

10-01-2012

Company: Caterpillar Inc. (machine and engine manufacturer)
Legal Matter: February 2011 wrongful death trial
In-House Counsel: Kevin Brennan, senior corporate counsel–litigation
Outside Counsel: W. Ray Whitman, partner, Houston office of Baker & Hostetler

Corporate Counsel: What was the nature of the case?

Kevin Brennan: It stemmed from a March 2006 accident at a steel mill in Waxahachie, Texas. The plaintiffs alleged that an arc furnace hose manufactured by Rapisarda Industries, an Italian subsidiary of Caterpillar, failed, causing an explosion that burned more than 90 percent of a mill employee's body. He survived for 12 hours.

CC: What was Caterpillar's defense?

KB: Our argument was that through incredibly poor maintenance, the hose failed from having molten steel dropped on it over the years. We also argued that a leak on the furnace itself caused the explosion. The jury deliberated for 90 minutes before coming to a defense verdict.

CC: How did you select Baker to represent you?

KB: Six weeks prior to trial, we had to switch counsel. We were left without an established lawyer in Texas, and there wasn't an option of continuance. The case had been pending for years, with well over 50 depositions, both here and in Italy, involving a product line we're not accustomed to defending. We went with the local office of one of our national teams, Baker Hos­tetler. They came in and hit it out of the park.

CC: When did you know you had made the right choice?

KB: I wasn't sure what to expect from this local office when they were in trial prep mode. What I found was a remarkably calm, even-keeled—but very hardworking—approach that really resonated with me. You would not have known that these guys had just had the case for six weeks. They were going about their business as if they'd had the case from the start.

CC: What impressed you about Whitman's leadership of the team?

KB: The two other lawyers, Greg Ulmer and Brad Howell, are both partners, but less experienced. Their way of working together was impressive to me. It was clear Ray was leading the team, but he had confidence in them to prepare their portions of the case.

CC: What obstacles arose during trial?

KB: The plaintiffs came loaded for bear with one of our expert witnesses who's done a lot of testifying over the years. The interplay between Ray and the expert was very effective, and it defused the suggestion from the other side that he was a "professional witness."

CC: How did Ray overcome that?

KB: The witness was a former university professor, but also someone who had worked at and even owned an arc furnace operation in his past. When Ray kept emphasizing his credentials and his background, you could tell that the jury was hanging on the witness's words. The fact that he had testified multiple times before really didn't have any impact.

CC: Did you come up with that tactic together?

KB: It was a combination of our witness's having been through this before, and all of us recognizing as a team that this witness's impeccable credentials and almost uncanny experiences with regard to the facts of the case made him a tremendously believable witness.

CC: What was at stake in this trial?

KB: The only demand that we received prior to trial was for $15 million. There was never a response to that demand. We had confidence from the start, but it was still a dangerous case.

CC: Have you worked with Ray's office since that first trial?

KB: Yes, that team is now one of our regional counsel, so they handle a six-state region for us. It was the beginning for them of what will be a long relationship with Caterpillar.