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2002 TOP DEFENSE WINS Ten more noteworthy defense wins (Web only) Goliath Wins a Battle of Credibility
Six small Alaska communities squared off in trial last summer against ExxonMobil Corp. in what appeared to be a case of a half-dozen Davids battling a Goliath. The coastal towns sued the oil giant for $12 million they said they were owed for cleaning up oil spilled by the Exxon Valdez tanker in 1989. ExxonMobil contended it had already unquestioningly covered all cleanup bills and had paid the plaintiffs more than $3.7 million as part of a massive $3.5 billion effort. Which would the jury believe: the municipal workers who battled to contain 11 million gallons of crude oil that washed up on 1,300 miles of shoreline, or suited executives from a huge corporation that had already admitted the spill was its fault? "The basic contest in the trial was one of credibility," said defense attorney Chuck Diamond. After hearing five weeks of evidence, the jury deliberated about three hours before handing the defense a win. The foreman was a municipal employeea member of the Anchorage public works departmentand six of the 12 jurors were 21 or younger. Because they were children when the Valdez ran aground on March 24, 1989, in Prince William Sound, they were "less indoctrinated about happened and more open-minded," Diamond said. The plaintiffsCordova, Kodiak Island Borough, Larson Bay, Old Harbor, Port Lions and Sewardhired an economist to calculate the expenses they claimed they had seriously underestimated for the cleanup. That amount totaled $12 million, rising to $30 million with interest. The defense assembled a team of witnesses that included statisticians and economists to dispute the plaintiffs' numbers. "This was to some extent a swearing contest among witnesses," Diamond said. The defense attorneys, who ultimately rejected the plaintiffs' $15 million settlement demand, knew jurors might be reluctant to believe that the corporation had paid all its debts to the communities. "Do you say zero?" Diamond said. "Do you have the nerve to stand up in front of a jury and say that these people deserve nothing?" "I thought they tried a good case," said plaintiffs' attorney Brian B. O'Neill, a partner in Faegre & Benson of Minneapolis. "It was good, hard, fair fight, and I lost. It happens." Picking on Frail Old Folks? Not Really
A trial last spring in which an elderly pair of California developers squared off against Texaco Exploration and Production Inc. could have been called "the case of the soiled soil." At issue was the cleanliness of more than 60,000 cubic yards of dirt from a former Texaco oil field that the developers had purchased for parking lot fill in an office park in Santa Maria, Calif. They claimed Texaco defrauded them by sticking them with oil-contaminated earth that should have been disposed as hazardous waste. They also alleged that the releases they had signed were unenforceable and wanted Texaco and RMR Inc., a trucking company, to compensate them for the cost of construction delays and lost rental income. They sought $8 million in compensatory damages and unspecified punitives. The plaintiffs could have been very sympatheticthey were a couple in their late 80s who are physically frailbut their backgrounds actually aided the defense, said defense attorney Christopher Berka. They had extensive experience with oil; she was "born in an oil patch," Berka said, and he had worked for more than 60 years in the industry. "We were able to show not only that they were very sophisticated about the oil industry and oil fields, but they were also very experienced developers," he said. The plaintiffs' experts testified that Texaco's soil contained asbestos and other toxic heavy metals. Defense experts countered that those substances did not reach hazardous levels and were in fact already on the property. During the 46-day trial, jurors saw more than 500 exhibits and heard from 46 witnesses. After deliberating for a day, they found that the releases the plaintiffs signed were valid and released Texaco from liability. They also agreed Texaco had not violated any environmental laws. The jury approved an injunction to force Texaco to remove the soil, but the judge opted not to issue one. Berka noted that his client had already agreed to retrieve the dirt for use on Texaco's property. Jack A. Draper, of the Law Office of Jack A. Draper of Bakersfield, Calif., did no return calls seeking comment. Calling Exactly Zero Experts to the Stand
Regent Hospital Products realized it was on to something good when it began selling plastic-lined Biogel surgical gloves. Other latex gloves were dusted with mica, talc or cornstarch, substances that have been blamed for users' allergies and problems in patients. But Regent found that Biogel glove wearers were less likely to complain of allergic reactions because the gloves were repeatedly rinsed during the manufacturing process. The company touted this advantage in ads beginning in 1996 and soon secured the majority of the power-free surgical glove market, said defense attorney William B. Hill Jr. Glove maker Allegiance Healthcare Corp. sued Regent in 1997 for 12 false and misleading advertising under the federal Lanham Act. Regent fired back with a counterclaim that the suit was malicious, fraudulent, deliberate, willful or in bad faith. The case went to trial in Atlanta last spring before a jury that included several nurses and a fast-food worker who had a colleague with a latex allergy, Hill said. Regent's attorneys opted not to put on any expert witnesses because they'd made substantial inroads in cross-examining the plaintiff's experts. That tactic weakened the plaintiff's case because it had no defense experts to attack on rebuttal, Hill said. During the four-week trial the plaintiffs insisted that all the profit it lost in gloves sales was due solely to Regent's adverting claims. "Their damages expert got locked in on this," Hill said. The defense also pointed out that despite the allegations made in the suit, Allegiance continued to distribute millions of dollars of Regent gloves each year. Allegiance claimed it had to provide customers with what they wanted. The plaintiffs asked the jury for $490 million to cover lost profit, corrective advertising and profit disgorgement. The jury rejected all the plaintiff's claims except onethat Regent's former global medical affairs director had lied about her credentialsbut found that misrepresentation caused no harm. The jury found for Regent on its counterclaim, which prompted the company to request $5 million in attorney's fees. Plaintiff's attorney H. Lamar Mixson of Atlanta's Bondurant, Mixson & Elmore said: "We were mystified by the jury's verdict because Regent's own personnel through the claims could not be substantiated." He hopes that an appeal pinpointing "serious evidentiary errors" will lead to a new trial. Oral arguments are scheduled for mid-April. Overcoming a Very Sympathetic Plaintiff
It would be hard to find a more sympathetic plaintiff than a 9-year-old boy raped by an intruder in his public housing high-rise. But two defense lawyers persuaded a jury that the New York City Public Housing Authority was not liable for the assault despite testimony from residents that the front lock on the Jamaica, N.Y., building was often broken. The victim, identified as Alonzo M., was returning home with a Sunday paper for his mother in 1992 when a man followed him into the elevator, forced him onto the roof and raped and sodomized him. The assailant was convicted of a series of sexual assaults in the area, said defense attorney Alan Kaminsky. Alonzo's family sued the housing authority for failing to provide appropriate security to protect residents from foreseeable criminal attacks. An expert witness for the plaintiff cited countless police reports to show that the neighborhood was crime-infested. Many residents of the building testified that the housing authority was sluggish and sometimes unresponsive in fixing the chronically broken front door lock. A thorough cross-examination proved critical to the defense's win. "I was able to show inconsistency in their testimony," Kaminsky said. His security expert was precluded from testifying because the judge claimed he was disclosed too late, but Kaminsky used housing authority records to show that the front door lock was working as recently as three days before the assault. Kaminsky said he was "very up-front during jury selection" in explaining the graphic nature of the case and excusing potential jurors who were sympathetic to the plaintiff. Had the jury held the housing authority liable, the plaintiffs were expected to seek as much as $5 million in damages in the bifurcated trial. Jurors deliberated six hours over two days. Despite the defense victory, the case was settled confidentially "for a very reasonable amount" after the verdict with the agreement that there would be no appeal, Kaminsky said. The boy's attorney, Margaret Johnson-Pertet, said the verdict was puzzling because the jury found the Housing Authority negligent though not the proximate cause of the boy's injuries. Johnson-Pertet, of Fitzgerald & Fitzgerald of Yonkers, N.Y., and Kaminsky had agreed before the verdict to a high-low settlement ranging from $95,000 to $300,000. Johnson-Pertet said her client received $95,000. With $300M at Stake, Defense Toughs It Out
A patent infringement case that the defense asserted should have been settled and never gone to trial wound up there anyway. At stake was about $300 million in royalties sought by Chiron Corp., which alleged that the biotech firm Genentech Inc. had infringed on its patent for a breast cancer drug. The federal judge had already granted summary judgment for Chiron on its infringement claim and hit the defense with $100,000 in sanctions for discovery failures. But defense attorney John W. Keker of San Francisco was able to persuade a jury that Chiron's patent was invalid and therefore impossible to infringe on. He hammered home for the jury what he perceived to be a weakness in the plaintiff's argument: "The problem in a patent case is that the broader the claim for infringement, the harder it is to defend the validity of a patent," Keker said, "so quite often, getting what you're looking for in one part of a patent case spells disaster in another part of the case, and that's what happened to them." At issue were royalties and profits from Genentech's sale of Herceptin. The drug, created from genetically engineered antibodies, triggers a human immune system response to kill breast cancer cells. The defense was able to persuade the judge that it should be allowed to present its case first because it carried the burden of proof. Losing the case would have spelled months in court for the parties as they tried the damages and willfulness phases of the case and claims of estoppel and inequitable conduct, Keker said. The four-week trial was rich in complex medical testimony and details about the intricacies of patent law. The defense did its best to keep the jury focused on the essential issues through a tight and consistent focus on a few key points. "If you know what you're talking about and have any credibility, you ought to be able to tell (jurors) right from the beginning," Keker said. Citing flaws in the jury instructions, the plaintiffs are appealing the verdict. "The judge ultimately gave instructions that were not legally correct and admitted evidence that was not legally admissible," said plaintiff's counsel Harold J. McElhinny of Morrison & Foerster in San Francisco. Winning on Plaintiff's Turf -- in Japanese
Take a trio of witnesses from Osaka. Plunk them before a federal jury in Peoria, Ill.John Deere Co.'s home stateto testify in Japanese about the design of a tractor suspension attachment. Park two exhibits in the courthouse lot. Then ask the jury to decide if the Osaka company, Kubota Corp., infringed on John Deere's patent. Kubota's defense team knew it faced some unusual obstacles last spring in a 2 1/2-week trial. John Deere was seeking an injunction against Kubota and $75 million in damages for six years of alleged infringement. The attorneys feared some prospective jurors might be biased toward John Deere, which has corporate headquarters in nearby Moline, Ill. The defense, led by William A. Streff Jr., planned its strategy carefully. It educated the panel about technical issues such as how Kubota's Japanese engineers had developed a device to attach implements to a tractor and the differences between that design and Deere's. Kubota sells tractors and machinery in the United States. The defense knew that using an interpreter would double the amount of time each witness spent on the stand, but it decided the jury needed to hear from two engineers and the patent department manager. "We gave a lot of thought to the Japanese testimony," said defense attorney David K. Callahan. "What do we want them to say? What do we need them to say? We made some hard calls to focus on key issues." Despite those precautions, translation time added about a day to the trial. To balance the three Japanese witnesses, the defense lawyers scoured the country for a non-industry expert to testify about the design of agricultural equipment. They found their man in Richard Parish, a professor in Louisiana State University's Department of Agriculture and Engineering. Dubbed "Mr. Tractor" by the defense team, the Missouri native "fit in beautifully" in Illinois, Streff said. The defense also tapped a damages expert from neighboring Iowa. "We felt it was important to some extent to try to localize the case, to level it out a little," Callahan said. Jurors deliberated for four hours before deciding that Kubota had not infringed on John Deere's patent. Keith V. Rockey, who represented Deere, noted that the plaintiffs won of three of four infringement issues. Rockey, of Bell, Boyd & Lloyd of Chicago, said he's appealing the verdict because of improper jury instructions. A Priest-Molestation Case Goes to Defense
Devoting more than 60 hours to combing 30 years of a plaintiff's medical records paid off for attorney Michael C. Wilcox, who successfully defended a Catholic priest accused of molesting a teen. Though the plaintiff alleged he'd been emotionally harmed by what he claimed was non-consensual sexual contact, Wilcox was able to show a Boston-area jury that the man had a history of emotional issues unrelated to the incident that brought him to court. The jury found that the priest engaged in sexual misconduct but refused to award any damages. The plaintiff "was looking for a payday, but he didn't present himself to the jury as someone egregiously harmed," Wilcox said. "There was no bright line where this guy started showing problems." The case was the first civil litigation involving allegations of priest sex abuse to reach trial in Massachusetts since 1995. It came amidst renewed attention to claims of Catholic priests' sexual misconduct and the church's alleged cover-up of wrongdoing. David Lewcon, now 48, claimed he'd been emotionally scarred by sexual abuse by the Rev. Thomas Teczar in the 1970s. He sought unspecified damages. Teczar denied any sexual contact with Lewcon though he admitted to rubbing the teen's back and serving him alcohol. Lewcon claimed he was 15 or 16 at the timebelow the state's legal age of consentwhile the defense claimed he was 17 and that any contact was consensual. Wilcox knew jurors would be uncomfortable with the thought of any physical contact between a priest and a teen, so he tackled the matter head-on, distinguishing the as morally wrong but not illegal. And even if the touching was not consensual, the attorney said, it didn't harm the plaintiff. Aiding the defense's case was the fact that Lewcon was unable to admit testimony from other men who claimed Teczar molested them. Wilcox produced medical records showing that Lewcon's problems predated and postdated his contact with Teczar; for example, he'd stolen Valium from his mother when he was 14 and diagnosed himself as having attention-deficit disorder. Lewcon's attorney, Laurence E. Hardoon, said he interpreted the verdict to mean that the jury agreed that Teczar did something wrong but felt that "four fairly mild incidents of fondling ... was not a satisfactory basis in their minds for issues he (Lewcon) was dealing with 25 and 30 years later." Hardoon is partner in Brody, Hardoon, Perkins & Kesten of Boston. No 'Heavy Science' in Latex Glove Case
Jurors were instructed not to handle their pets, work in their gardens or mow their lawns before coming to court to hear Mary Beth Kennedy testify about the debilitating effects of her latex allergy. Kennedy, a former nurse who sued glove maker Baxter Healthcare Corp., appeared in court only on the day she testified. She claimed her reaction to latex had become so severe that she was a virtual prisoner in her sanitized home. She alleged Baxter's gloves were defective and that the company had failed to warn about their risks. Her attorneys asked for $5 million for pain, suffering and lost wages. The St. Paul, Minn., federal jury that sat through five weeks of testimony found no defects and, after two hours of deliberations, awarded nothing to Kennedy, who was allergic to dozens of other substances in addition to latex. The June 2002 defense win came in the first latex-glove allergy case to be tried in federal court. Kennedy's case, one of more than 600 in federal multidistrict litigation in the Eastern District of Pennsylvania, had sped to trial because her attorneys claimed her allergies had put her life at risk. Baxter had previously settled about 300 cases, gone to trial in five others and is a party in 200 to 300 more, said defense attorney Michael J. Philippi. Roughly a dozen glove cases have gone to trial in state courts with defense victories edging out plaintiffs' verdicts. The defense team in the Kennedy case employed a trial strategy that did not contest whether the plaintiff had a latex allergy but argued that the gloves were not defective simply because a user suffered an adverse reaction. "We didn't try a heavy science case on purpose," Philippi said. He also emphasized that Kennedy's allergic symptoms began before she ever used latex gloves and continued after she stopped wearing them. Despite the loss in federal court, plaintiffs continue to try to finger latex glove manufacturers. The cases consolidated in multidistrict litigation for discovery are expected to be returned to the appropriate federal courts this spring and then head to trial. Edward Gale, who represented Kennedy, said that despite the defense verdict, "we continue to believe that these cases have merit and look forward to future trials." He is an attorney with Leonard, O'Brien, Wilford, Spencer & Gale in St. Paul. Directed Verdict Ends Racially-Charged Case
A Charleston, S.C., man died in police custody within minutes of being tackled and subdued by six sheriff's deputies. Leon Walters, 32, cried out, "You're suffocating me!" during the scuffle that preceded his death. The medical examiner found bruises on his neck and said he died of "asphyxia due to positioning." The NAACP demanded an investigation into Walters' 1999 death, which received extensive media coverage in South Carolina. So did the trial. Walters' survivors filed a $50 million wrongful death suit but left federal court empty-handed last April after the jury returned a verdict for the defense. Attorney Sandra J. Senn built a persuasive case using testimony from the officers as well as evidence from "one inmate who was supposed to testify for the plaintiff. He turned out to be a fabulous witness" for the defense because he bolstered its claim that Walters' violent behavior triggered the deputies' forceful reaction. Walters was placed in custody on Jan. 12, 1999, after a family court hearing about his failure to pay $1,800 in overdue child support. He demanded access to medication he'd brought for diabetes, depression and a psychotic disorder. When deputies, citing policy, refused to give it to him without supervision, he reacted violently. He was subdued in a tiny holding cell after a five-minute tussle, passed out and was pronounced dead at a hospital. The plaintiffs' experts had claimed the wounds on Walters' neck proved he was choked but defense experts disagreed. Senn noted that the officers were equipped with guns, batons and pepper spray but used only their hands and bodies to subdue the 6-foot-3, 320-pound Walters. "It would have been very easy for six officers to kill this guy if they wanted to," she said. She was concerned the trial could become racially charged because Walters was black and the jury was white. The NAACP had called for possible criminal action against the deputies but prosecutors declined to charge them, she said. The jury heard three days of evidence and deliberated less than five hours. The judge issued a directed verdict on a claim of civil rights violations. Walters' attorney, Jared Sullivan Newman, said he wouldn't have tried the case any differently and noted that the fact that all 12 jurors were white likely played a role in the defense verdict. He is a partner in Newman & McDougall in Beaufort, S.C. Defense Counsel Asks for Nothing, Wins $1M
This case had all the elements of a riveting movie: an employee fired for his role in a scam that allegedly netted more than $1 million from his employer, mistresses, a forged signature and a bunch of former Scotland Yard detectives who addressed the federal judge as "My lord." What looked like a fairly straightforward suit filed by a Philips Electronics employee who claimed he was wrongfully terminated evolved into a spectacle that kept jurors rapt for 10 days. Though the defense demanded nothing in its counterclaim, it won big$750,000 in compensatory damages and $250,000 in punitives. The plaintiff sought at least $1 million but stormed out of the courtroom with nothing. Mario Piratello sued his employer, Philips Electronics, after he lost his job in late 1999 in the wake of an internal investigation that uncovered a series of thefts perpetrated by employees, said defense attorney Jennifer Hinkebein Culotta. He sued for breach of contract, slander and assault. Though the defense was fearful that the jury would view the case as a wronged David battling a bullying corporate Goliath, it was adamant about not settling. "We're not going to allow a thief who's stolen from us to turn around and steal some more," Culotta said. Instead, the defense team turned to its investigators and an avalanche of documents they gathered to support its counterclaim that Piratello had converted his employer's money, breached his fiduciary duty and stolen from the company. Filing the counterclaim was a tactical decision that altered the defense's burden but allowed Philips to present its case for terminating the former general manager of several Texas plants, Culotta said. She credits the detectives with ferreting out a forged signature on an allegedly notarized document and determining that Piratello had spent some of the embezzled money on lovers. None of that evidence reflected well on the plaintiff, who spent three days on the witness stand. After such a far-reaching investigation, the verdict was sweet vindication: "Basically, they were punishing him for bringing the litigation," she said of the jury. Piratello's attorney, Michael R. "Mickey" Milligan of El Paso, said the case might have had a different outcome had he been able to obtain the documents he needed. The judge refused to order the defense to produce the records of its private investigators and struck Milligan's claim for his client's pension documents. "I've never had a case where I was denied access to all the relevant documents as I was in this one," he said. He is awaiting a decision on his motion for a new trial. Top 10 defense wins for 2002 |
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