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Intense discovery offsets late entry into case CASE TYPE: personal injury, products liability CASE CITE: Heber v. Walt Disney Co., No. 02-CC-11166, (Orange Co., Calif., Super. Ct.) FOR THE DEFENSE: Kyle Kirwan and Kevin Rising, Akin Gump Strauss Hauer & Feld, Los Angeles; Disney in-house counsel Jack Yellin and Elisa Martinez PLAINTIFF’S LAWYERS: Marc S. Feldman and Susan C. Caldwell, Koletsky Mancini Feldman & Morrow, Los Angeles A Milwaukee surgeon sued The Walt Disney Co. for $10 million, claiming that a malfunctioning safety restraint on a theme park roller coaster left him completely disabled. Savvy defense work prevented Disney from being taken for a ride. Defense attorney Kyle Kirwan, a partner in Akin Gump Strauss Hauer & Feld’s Los Angeles office, had just eight weeks to prepare for trial. Disney asked him to take the case after the trial attorney was stricken with cancer. Discovery was closed. And the ride’s manufacturer had settled for $10,000 with plaintiff David Heber, leaving Disney the sole defendant. Heber’s lawyer was a formidable opponent. Marc S. Feldman had previously settled another amusement-park ride injury case, securing more than $5 million from Knotts Berry Farm. Kirwan inherited a defense strategy with the Disney case. The previous team planned to show that Heber had allegedly faked his injuries after the 2001 roller coaster ride. Kirwan suspected that a jury would reject that defense in light of recent extensive coverage of two major injury suits against Disney theme parks. They had settled for millions of dollars in the 12 months leading up to the trial. Instead, Kirwan opted to emphasize Disney’s safety procedures, its mechanics’ integrity and the ride’s low intensity. He didn’t dispute that Heber had been injured, but he found an unrelated cause of the surgeon’s debilitating arm and neck pain. Kirwan deployed safety experts to study the ride and its horseshoe-shaped restraint, which Heber contended had failed to lock in place, leaving him vulnerable to injury. The experts found no evidence of malfunction. Even if the mechanism had failed to engage, Kirwan told jurors, the ride was too mild to cause the harm alleged. Jurors were able to examine the mechanism themselves. The defense team had a $90,000 roller coaster car and harness cut down the middle to display the ratchet and ball apparatus at issue in the case. Feldman, a partner at Koletsky Mancini Feldman & Morrow in Los Angeles, raised questions about Disney’s maintenance by introducing evidence of other incidents of jammed ride restraints. He did not return several calls seeking comment. But the defense team had an ace in the hole: Kirwan’s short but intense discovery led him to medical records from a 1998 car crash that knocked Heber unconscious. Heber’s injuries stemmed from that collision, not by the roller coaster, Kirwan told the jury. In the courtroom, Heber downplayed the incident’s severity, which Kirwan said was a mistake: “He came across as a fast talker on the stand.” Feldman asked the jury for $12 million. The panel deliberated less than two hours before finding for Disney. An appeal was dropped. Attorney faces down pressure to settle CASE TYPE: personal injury CASE CITE: Ralph A. Lytle Jr. v. Keystone Propane Service Inc. and Lytle v. Starcraft Corp., (Lackawanna Co., Pa., Ct. C.P.) FOR THE DEFENSE: John V. McCoy, McCoy & Hofbauer, Waukesha, Wis. PLAINTIFF’S LAWYERS: Gerald J. Hanchulak, O’Malley, Harris, Durkin & Perry, Scranton, Pa. Defense attorney John V. McCoy was feeling mounting pressure to settle a tough personal injury case. The plaintiff wanted at least $1.6 million for the severe burns he suffered while using his propane gas stove on a camping trip. The judge was pressing a $2 million settlement, well within the propane gas supplier’s $5 million of coverage. And the supplier’s attorney, fearful that a verdict would exceed the coverage limits, was raising the specter of bad-faith claims. But McCoy, who represented the gas supplier’s insurance company, insisted he had a defensible case. And it turns out he was right. McCoy, founder of the Waukesha, Wis., firm McCoy & Hofbauer and an expert in propane company defense, persuaded a Pennsylvania jury that the 1998 flash fire was the fault of the plaintiff, Ralph Lytle, who had allegedly carelessly left the stove’s burners on. Lytle contended that Keystone Propane Service did not properly odorize the propane in his 20-pound cylinder, making him unable to detect the dangerous gas leak. The trial judge, Trish Corbett of the Lackawanna County Court of Common Pleas, called the lawyers into her chambers and pressed for a resolution before the case went to the jury. Fearing a verdict would exceed the insurance cap, Keystone brought in its own attorney to follow the proceedings. Still McCoy refused to settle. The judge upped the stakes, McCoy recalled, telling him that she’d testify if the plaintiff prevailed and Keystone filed a bad-faith claim against its insurance carrier. “That’s a lot of pressure, for the judge to testify it was bad faith,” McCoy said. He stood firm. Corbett said she could not comment because the case is on appeal. The next day, after less than an hour of deliberations, the jury sent Lytle home empty-handed by a 10-2 vote. Lytle’s attorney, Gerald J. Hanchulak of O’Malley, Harris, Durkin & Perry in Scranton, Pa., said he didn’t expect the jury to side with the defense. “It was a very surprising verdict,” he said. McCoy said scientific evidence during the eight-day trial proved that the propane at issue was properly odorized and that no leakage occurred. “Science tells us certain things,” he said. “The science can’t lie.” He showed the jury why the propane odorant testing done by the plaintiff’s experts was flawed, and he bolstered the credibility of a key defense witness with an unexpectedly unsavory past. That witness testified that two of the stove’s burners were on when he arrived at Lytle’s camper. He was the sole witness to say he smelled propane, McCoy said. Under cross-examination, the man admitted he’d been asked to leave the campground for making lewd comments about teenage girls. McCoy was surprised by that revelation, but he told jurors that that if the witness was honest about such an embarrassing incident, he would surely tell the truth about the facts at issue in the trial. Just 10 hours to try a case with $20M at stake CASE TYPE: products liability CASE CITE: Thomas D. Crowson Jr. & Andrea Crowson v. Davol Inc., No. A:03-CA-668-55 (W.D. Texas) FOR THE DEFENSE: Joe G. Hollingsworth, Katharine R. Latimer, Kirby T. Griffis and Matthew J. Malinowski, Spriggs & Hollingsworth, Washington PLAINTIFFS’ LAWYERS: Brian M. Keller, Stephen M. Loftin, John B. Thomas and Jay N. Gross, Hicks Thomas & Lilienstern, Houston Most products liability cases involving a medical device take two to four weeks to try. A pair of defense lawyers had just 10 hours to persuade a Texas jury that their client’s surgical mesh did not cause a young plaintiff’s sterility after his hernia-repair operation. At stake: $20 million in damages and punitives, plus a hint of how the other pending suits against the same defendant might fare. “We used nine hours and 58 minutes,” joked Katharine R. Latimer, who defended the case with Joe G. Hollingsworth on behalf of Davol Inc., a medical technology company. Both are partners at Spriggs & Hollingsworth in Washington. Each side was allotted 10 hours for opening and closing statements, direct and cross-examination and objections. The team that lost the objection had the argument time subtracted from a clock monitored by the courtroom clerk. The defense team lost a Daubert motion hearing before the trial even began, costing them 45 minutes right off the bat. The draconian time limit was imposed by federal Judge Sam Sparks, who is “very protective and very devoted to his juries,” Hollingsworth said. He and Latimer rose to the challenge by paring their case to its elements and continually revising their strategy. “We had to go back every night, and sometimes at noon, and reconstruct the trial schedule,” Hollingsworth said. “We just could not be wedded to a standard approach. We had to make judgments on the fly.” They devoted two-thirds of their time to cross-examination, targeting the plaintiff’s medical-causation expert to prove there was no reliable scientific evidence linking surgical mesh to infertility. The whole defense was presented in less than a day. The Crowson jury didn’t know about the judge’s ticking clock, but they, too, didn’t waste any time. They returned the defense verdict in just 55 minutes. The plaintiff’s attorney, Brian M. Keller, said jurors later told him they needed pictures of the patient’s injury to determine whether the liability rested with the mesh or the surgeon, who was not a defendant. “They wanted more concrete evidence about what it looked like inside the plaintiff’s body,” said Keller, a partner in Hicks Thomas & Lilienstern in Houston. He did not have those photos, however, because the plaintiff refused to undergo another invasive, painful and costly procedure. A plaintiff’s verdict likely would have added steam to what Hollingsworth called a “significant number” of cases involving surgical mesh pending against Davol. More than 700,000 men each year receive hernia-repair surgery, and most procedures use the defendant’s polypropylene mesh. But following the verdict in the Crowson case, a case ready for trial in Houston abruptly settled for “a very, very nominal sum,” Hollingsworth said, and as many as two dozen cases were dropped. Sticking to themes with ‘obsessive consistency’ CASE TYPE: personal injury CASE CITE: In re San Jose IBM Workers Litigation (Hernandez and Moore), No. 1-98-CV-772093 (Santa Clara Co., Calif., Super. Ct.) FOR THE DEFENSE: Robert C. Weber of the Cleveland office of Jones Day; Mary Ellen Powers and J.C. McElveen of the Washington office; David J. DiMeglio and Gary W. Nugent of the Los Angeles office; and Sharyl A. Reisman of the New York office PLAINTIFFS’ LAWYERS: Richard Alexander, Amanda Hawes and Ryan Hagan of the San Jose, Calif., office of Alexander, Hawes & Audet; and Joseph E. Russell and Susanne N. Scovern of the San Francisco office Alida Hernandez developed breast cancer. James Moore was afflicted with non-Hodgkin’s lymphoma. They had both worked at International Business Machines Corp.’s San Jose, Calif., disk-drive manufacturing plant, and they both faulted their employer for their illnesses. Hernandez and Moore claimed that they suffered “systemic chemical poisoning” after exposure to toxic chemicals at the IBM factory. Their employer knew those substances were dangerous, they alleged, but deliberately didn’t tell workers. When their “toxic tort” case came to trial last year, Jones Day defense attorneys Robert C. Weber and Mary Ellen Powers knew another 50 cases were waiting in the wings. They expected this verdict to be a bellwether, and they weren’t disappointed. “The plaintiffs made this into a test of the industry,” said Weber, a partner in the Cleveland office. “They wanted to put the microelectronics industry on trial.” He and Powers crafted a defense that emphasized IBM health care workers’ integrity while highlighting inconsistencies by comparing the plaintiffs’ testimony to their medical records. In an unusual move in a personal injury case, the two plaintiffs were the first to testify. They spent about two weeks on the stand, including a lengthy redirect. “Our strategy,” Weber said, “was to show these people respect but to challenge their story whenever possible.” Careful cross-examination and later defense witnesses helped show that the plaintiffs had only short-lived and minimal exposure to chemicals they blamed for their illnesses. During the five-month trial, the defense stuck with what Weber called “an obsessive consistency” to a few key themes. Among them was his encouragement to jurors that they be “patient listeners”: Follow the plaintiffs’ case, but realize the picture isn’t complete without the defense’s perspective. Plaintiffs’ attorney Richard Alexander of Alexander, Hawes & Audet of San Jose suggested the jury award each plaintiff compensatory damages in the high seven figures. He couldn’t request punitives because the judge had issued a directed verdict on that claim before closing arguments. After less than two days of deliberations, on Feb. 26, 2004, the jury sided with the defense. Three days later, the judge ordered all of the California parties into mediation, and the remaining cases settled quickly, Powers said. Alexander, the plaintiffs’ attorney, described the California trial as “a slam-dunk loser from the start” and “virtually impossible” to win. “There was no way the plaintiff could win,” Alexander asserted. “You cannot sue an employer for injuries in the workplace [unless you can show willful intent to injure].” It is “virtually impossible” to prove a case like this one in California, he asserted. Alexander said he took the case to trial because “[w]e wanted IBM and the chemical defendants to know we were prepared to try all our cases against IBM.” Meanwhile, scores of IBM workers’ cases alleging failure to warn and strict products liability that were filed in New York state, where IBM made semiconductor chips, have been dismissed. But suits brought by nonemployees and independent contractors are still pending. Scoring a win despite a poisonous environment CASE TYPE: criminal CASE: People of the State of New York v. Mark A. Belnick, Indictment No. 143-2003 (New York Co., N.Y., Sup. Ct.) PROSECUTORS: John W. Moscow, former assistant district attorney, and Amy Schwartz, assistant district attorney of the Manhattan district attorney’s office DEFENSE LAWYERS: Reid H. Weingarten and Mark J. Hulkower, Steptoe & Johnson, Washington; Robert F. Katzberg of Kaplan & Katzberg in New York JURY VERDICT: Not guilty Last summer, New York prosecutors told a Manhattan jury that lawyer Mark A. Belnick had a hand in large-scale corporate looting and fraud at Tyco International Ltd. They alleged that the former Tyco chief corporate counsel got more than $30 million as a secret payoff for helping cover up Tyco CEO Dennis Kozlowski’s own alleged stealing of hundreds of millions of dollars. But after an eight-week trial and five days of deliberations, the jury didn’t buy it, acquitting Belnick in July in one of the most closely watched trials of 2004. He was accused of grand larceny, securities fraud and falsifying business records for receiving a $17 million bonus and $14 million in no-interest loans, then failing to disclose them on forms used to prepare stockholder disclosures. Belnick spent the money on an apartment on Manhattan’s exclusive Central Park West and a house in Park City, Utah. Though on a smaller scale, the allegations were similar to those confronting Tyco CEO Kozlowski and Chief Financial Officer Mark Swartz, whose separate trial ended in a mistrial in April. Their retrial is under way. Belnick’s defense, led by Reid Weingarten of Steptoe & Johnson of Washington, argued that Belnick had earned the bonus by heading the company’s response to an accounting-fraud investigation by the Securities and Exchange Commission. The SEC concluded its investigation in July 2000 without filing charges against Tyco. The Belnick prosecution was “doomed from the start,” said defense co-counsel Mark J. Hulkower of Steptoe & Johnson and a former federal prosecutor. The Belnick case had no evidence and he never should have been indicted, Hulkower said. Weingarten could not be reached for comment. Though the defense felt sure, there was one significant, yet uncontrollable, variable. “We always had great confidence in the ultimate merits of Belnick’s position. We were just scared to death about the environment,” said defense co-counsel Robert F. Katzberg of New York’s Kaplan & Katzberg. It wasn’t just an official from Tyco, which had become synonymous with corporate corruption charges. It was the company’s lawyer. “People don’t like lawyers. People don’t trust lawyers,” he said. Belnick joined Tyco in 1998 following a 27-year career at Paul, Weiss, Rifkind, Wharton & Garrison of New York. Earlier this month, he returned to private practice in launching his own solo defense and litigation firm in New York. “I am eager to get back into court as an advocate instead of as a client,” he said. Though Belnick has cleared his criminal case, his Tyco woes aren’t over. He faces civil litigation stemming from the same issues raised in the prosecution. In litigation with Tyco, the company and Belnick have opposing claims. Belnick seeks an enforcement of the severance agreement and indemnification. He claims that Tyco and its insurers owe him for the cost of his defense, which he declined to discuss except to say he’s paid for all of it out of pocket. With Kozlowski and Swartz, Belnick also faces an SEC civil fraud suit. The matter is on hold while Kozlowski and Swartz’s criminal case remains unresolved, he said. Though Belnick hopes the SEC will dismiss allegations, he said, “If we have to litigate it, we’ll litigate it.” Lead prosecutor John W. Moscow, a former veteran assistant district attorney in Manhattan, declined to comment. He now is in a private defense practice at Rosner, Moscow & Napierala in New York. When representing Goliath, humanize him CASE TYPE: patent infringement CASE CITE: Arendi USA Inc. and Arendi Holdings Ltd. v. Microsoft Corp., No. 02-CV-343 (ECT) (D.R.I.) FOR THE DEFENSE: Frank E. Scherkenbach and Craig R. Smith of Fish & Richardson’s Boston office; Jennifer Kinsbruner Bush of the San Diego office PLAINTIFFS’ LAWYERS: Paul Hayes and Eugene Feher, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, Boston Tiny Arendi Holdings Ltd. claimed that Microsoft Corp., the world’s largest software maker, had infringed on its patent. The husband-and-wife business demanded more than $5 billion in damages. “Any time you’re dealing with that sort of a plaintiff’s story, it can be a challenge by comparison to show why anyone should have sympathy for a bigger company,” said Microsoft’s attorney, Frank E. Scherkenbach, a partner in Fish & Richardson’s Boston office. Efforts to settle the case failed because the parties were “tens of millions of dollars apart . . . .With a company like Microsoft,” Scherkenbach said, “people see dollar signs.” In trial, he countered that tendency by humanizing Microsoft and empowering a Providence, R.I., jury to understand the patent issues and technology at the heart of the legal dispute. The jury found no patent infringement and awarded Arendi nothing. Arendi claimed that its 2001 patent had been infringed by Microsoft’s “smart tag” technology, software that scans text, recognizes significant words such as a name or URL and then gives the user a menu of options. Those options might include sending an e-mail or an instant message to a name it recognizes. Smart tags are found in popular Microsoft applications like Excel and Word. Arendi’s attorneys suggested that the workings of such sophisticated software were beyond the jury’s grasp, Scherkenbach said, and recommended resolving the patent dispute by listening to the lawyers’ arguments. But Microsoft’s counsel felt confident that once the panel understood the technology, it would have the tools it needed to decide whether infringement had occurred. Scherkenbach’s challenge was to relay that information effectively. “If you can present your case in compact and understandable chunks, it makes it easier to understand,” he said. His computer software expert spent just three hours on the stand. Arendi’s expert testified for the equivalent of three days and was “remarkably convoluted and lengthy; difficult to follow,” Scherkenbach said. Arendi’s lawyer, Paul Hayes of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo of Boston, could not be reached for comment. Another key to Scherkenbach’s success was careful jury selection. A magistrate judge conducted voir dire using questions from both sides. When attorneys were permitted to ask additional questions, the plaintiffs were silent. But Scherkenbach wanted to know whether anyone felt biased against large companies or harbored any negative feelings toward Microsoft in particular. Two people nodded and, after further questioning, were excused. “Who knows what the outcome would have been if they’d stayed on the jury,” said Scherkenbach, who successfully defended Microsoft in another smart-tag patent infringement case, this one in Wisconsin in 2002. After a two-week trial, the jury deliberated for two days. It found for Microsoft on the infringement issue but for Arendi on its validity claim, meaning that Arendi’s patent remains intact. (“Sometimes juries horse trade,” Scherkenbach ventured.) The verdicts are on appeal. Wins on each coast topples the dominoes CASE TYPE: products liability CASE CITES: Kronfeld v. Novartis Pharmaceuticals Corp., No. L-003034-02 (Middlesex Co., N.J., Super. Ct.), and In re PPA Litigation, No. JCCP-4166 (Los Angeles Co., Calif., Super. Ct.) FOR THE DEFENSE: In California, Jan E. Dodd and Aton Arbisser of Kaye Scholer’s Los Angeles office. In New Jersey, Gita Rothschild and John F. Brenner of McCarter & English’s Newark, N.J., office; Nathan Schachtman of McCarter & English’s Philadelphia office; and James Herschlein of Kaye Scholer’s New York office PLAINTIFFS’ LAWYERS: In California, Mark P. Robinson Jr. of Robinson Calcagnie & Robinson in Newport Beach, Calif.; and Ramon Rossi Lopez of Lopez, Hodes, Restaino, Milman & Skikos of Los Angeles. In New Jersey, Jerry Kristal, Ellen Relkin and John Broaddus of Weitz & Luxenberg of Cherry Hill, N.J., and New York Two concurrent products liability trials held on opposite sides of the country reached the same conclusion: Both were defense wins for Novartis Consumer Health Inc. The pharmaceutical company is one of several facing lawsuits for selling products containing phenylpropanolamine (PPA), which was found in over-the-counter appetite suppressants like Dexatrim and decongestants like Triaminic. The U.S. Food and Drug Administration declared PPA unsafe in 2000 and advised that it be taken off the market after studies linked its use to an increased risk of hemorrhagic strokes. Though cases are still pending against the pharmaceutical companies that made the products, the two January 2004 defense verdicts-one in California and the other in New Jersey-put a damper on plaintiffs’ expectations of substantial rewards, said Randolph S. Sherman, national coordinating counsel for Novartis. He is a partner in the New York office of Kaye Scholer. “Since the verdicts, we’ve reduced our inventory by 60%,” he said, mostly through dismissals. He declined to say how many cases were pending nationwide. The plaintiffs in California and New Jersey were women who claimed that they suffered debilitating strokes after using over-the-counter products containing PPA. Two plaintiff’s cases in California were tried together, one against Novartis and one against Bayer Corp. California defense lawyer Jan E. Dodd said her trial mantra was “billions of doses, decades of safety.” Dodd, a partner in Kaye Scholer’s Los Angeles office, emphasized PPA’s safety record by citing studies that showed no link between PPA and strokes. The defense picked apart a controversial Yale epidemiological study-funded by the drug companies themselves-that prompted the FDA’s advisory. The studies were flawed, Dodd said, because “researchers were trying to find something significant” to justify six years of work and $5 million in funding. She also explored with jurors why the plaintiffs’ medical conditions, including obesity and undiagnosed diabetes, put them at a high risk for strokes. Though the California trial started first, the New Jersey trial moved faster, reaching a verdict on Jan. 16, 2004, after about five weeks of trial. “The jury never really reached more general liability questions because they found the drug did not cause [the plaintiff's] stroke,” said Jerry Kristal, who represented the New Jersey plaintiff. “The case never got past point one.” He is a partner in Weitz & Luxenberg in Cherry Hill, N.J. The verdict is being appealed. Six days later, Novartis attorneys scored another win after an 18-week trial in California. Those verdicts are also on appeal. Defense lawyers have since won two more and lost one. “I think the plaintiffs’ appetite for these cases is not very big anymore,” Dodd said. “We demonstrated to them that maybe they were a little blind in these cases.” With $6B at stake, how to prepare? Extensively. CASE TYPE: fraud CASE CITE: Kelly-Moore Paint Co. Inc. v. Union Carbide Corp., No. 19785-BH02 (Brazoria Co., Texas, Dist. Ct.) FOR THE DEFENSE: Peter A. Bicks, Siobhan A. Handley and Morton D. Dubin of Orrick, Herrington & Sutcliffe’s New York office PLAINTIFF’S LAWYERS: W. Mark Lanier, Eugene R. Egdorf, Dara G. Hegar, Robert E. Leone, The Lanier Law Firm, Houston How do you prepare for a trial when nearly $6 billion is at stake? Very extensively, said Peter A. Bicks. He and a team of Orrick, Herrington & Sutcliffe attorneys spent “the better part of a year” immersed in intense jury research as they tested, retooled and tweaked arguments they would make before the actual Texas jury. “It was probably the most intense effort of any case I’ve ever been involved in,” said Bicks, a partner in Orrick’s New York office. That preparation paid off in spades. The defense won a resounding verdict for Dow Chemical Co. subsidiary Union Carbide, accused of fraud by Kelly-Moore Paint Co. for allegedly hiding the dangers of asbestos in its construction products. Kelly-Moore sought $1.4 billion in future damages and treble that amount in punitives. A win would have given the paint company a piggy bank to tap to settle more than 40,000 personal injury asbestos lawsuits of its own-and potentially have put out the welcome mat for suits against asbestos suppliers. Bicks and his New York team were up against a notable plaintiff’s lawyer, Mark Lanier of The Lanier Law Firm of Houston. The case was tried in nearby Angleton, Texas, providing a home-court advantage for Lanier in what Bicks dubbed a “notoriously plaintiff-friendly jurisdiction.” Bicks said a critical part of his victory in the Union Carbide case entailed what he called “mastering the opponent.” Bicks said he anticipated the plaintiff’s “tendency to oversell a case” starting in voir dire. After Lanier offered an abridged version of his arguments, Bicks explored jurors’ reactions. He then used their feedback to strike some for cause and educate others about the defense’s case. During the six-week trial, the defense stuck to a few key themes: It was no secret that asbestos was a dangerous substance, both parties were familiar with the product’s risks and Union Carbide supplied just 8% of Kelly-Moore’s asbestos. The defense also fine-tuned its trial strategy daily to reflect feedback from a shadow jury. The actual jury deliberated two hours before returning an 11-1 defense verdict on Oct. 22, 2004. Lanier said Kelly-Moore would have won had alleged jury tampering not occurred. “I don’t think the lawyers did it,” he said, “but I think it was done. I have no doubt.” Lanier said six jurors filed affidavits of misconduct, claiming that deliberations had occurred outside the courtroom and that they were offered compensation for their votes. Had there been no alleged tampering, those six jurors would have voted differently, Lanier asserted. Bicks countered that the tampering allegations are “reckless and baseless.” He noted that the judge found that the jurors had discussed trivial aspects of the case outside the jury room, but the judge found that those discussions did not rise to the level of misconduct. The win was sweet vindication for Bicks, who said about a fifth of his trial content drew on the jury researchers’ findings. “Our gut instinct hit 70% to 80% of the themes we ended up using at trial,” he said. “But really, it’s that 20% that’s the margin between winning and losing.” Defending WTC insurer near Ground Zero CASE TYPE: insurance coverage CASE CITE: SR International Business Insurance Co. Ltd. v. World Trade Center Properties LLC, No. 01-CV-9291 (MBM) (S.D.N.Y.) DEFENSE LAWYERS: Barry R. Ostrager and Mary Kay Vyskocil, Simpson Thacher & Bartlett, New York PLAINTIFF’S LAWYERS: Herbert M. Wachtell, Marc Wolinsky and Eric M. Roth of Wachtell, Lipton, Rosen & Katz, New York; John H. Gross, Proskauer Rose, New York Eight blocks from where the World Trade Center once stood, a New York City jury was asked to decide an insurance coverage dispute involving the now-destroyed landmark. “The venue was not ideal to deal with an academically abstract legal issue,” said Mary Kay Vyskocil, a partner in Simpson Thacher & Bartlett’s New York office. “It was an emotional issue in the most inhospitable climate you could find.” She and colleague Barry R. Ostrager represented SR International Business Insurance, part of Swiss Reinsurance Co. (Swiss Re), in a high-profile case against Larry Silverstein, the leaseholder for the World Trade Center on Sept. 11, 2001. Silverstein had signed a 99-year lease on the complex less than two months earlier. When terrorists destroyed the Twin Towers, the wording on the insurance policies hadn’t yet been finalized. He claimed that the language in effect on Sept. 11 allowed him to count the destruction-two plane crashes, one into each tower-as separate incidents and therefore double his coverage to $7.1 billion. Swiss Re, which underwrote about 22% of the center’s total coverage, insisted it never agreed to those terms. Its policy considered the attack to be a single incident with an $877 million payout. The company filed a complaint for declaratory relief to clarify its obligations. Silverstein filed a counterclaim. Mediation failed to resolve the matter, Vyskocil said, because Silverstein “wouldn’t even consider anything that was a realistic compromise.” His attorney, Marc M. Wolinsky of Wachtell, Lipton, Rosen & Katz, said he could not comment because the case is being appealed. Swiss Re made a critical strategic decision to seek trifurcation to focus the jury’s energies on the legal dispute rather than the financial impact of the destruction. But the other six insurance companies that were fighting Silverstein in the same trial opposed trifurcation because with it came the burden of proof. “We embraced the burden of proof,” Vyskocil said, “because it meant we got to go first, and with that, we got the corollary benefit of controlling the order of witnesses . . . and telling the story through the mouths of their witnesses.” That strategy paid off handsomely. After a 10-week trial, the jury decided that Swiss Re and the other six insurance companies were bound by the policy that limited their liability to a single occurrence. That meant Silverstein would collect $1.9 billion, half of what he sought from them. He received another $477 million in settlements and decisions on summary judgment. Months later, he won a second trial involving other insurers, entitling him to another $2.2 billion, rather than $1.1 billion.

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