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ATTORNEY: Harold M. Walter FIRM: Tydings & Rosenberg, Baltimore CASE: Grimes v. Electro-Matic Products Co., No. C-98-44665-O.C. (Anne Arundel Co., Md., Cir. Ct.) “The general public’s experience with the tobacco companies has forever changed the landscape for products liability cases,” says products liability defense attorney Harold M. Walter. “All those corporate executives coming before Congress and telling Congress there was no evidence that cigarettes are harmful — that’s a problem any corporate defendant has to deal with.” Plaintiffs’ attorneys can exploit that image “and tar any corporate defendant with it,” he says. In a recent defense of a products action where his client’s product was accused of causing brain lesions in operators, the opposing counsel “mentioned the tobacco industry several times,” he says. “He told the jury that corporate America lies to you. Corporations will say anything to avoid responsibility.” To counter, he says, “you have to demonstrate the difference between your industry and the tobacco industry, how your industry has dealt with other health issues.” Walter pointed to the reaction his client, Electro-Matic Products Inc., had in the early 1980s when it learned that electromagnetic fields produced by a variety of machines could interfere with cardiac pacemakers. “Instead of hiding or running away from it,” he says, “Electro-Matic put warnings on the machines and sent out letters to its customers.” The company further investigated whether it could make a machine that did not interfere with pacemakers. It corresponded with pacemaker manufacturers to determine what could be done. Ultimately, he says, the manufacturers of pacemakers changed the devices as the industries involved determined that this was the best solution. Walter pointed to his client’s response: “Here’s a company, when it learns of a potential health problem, protected its customers. It didn’t do what the tobacco industry did: Deny, deny, deny.” Creating the image of his client as a responsible corporate actor was a key, he believes, in the jury’s ultimate rejection of the plaintiffs’ claims. Walter primarily represents defendants in asbestos, products liability and other complex litigation. He began his career as a defense attorney representing companies, such as Fibreboard Corp. and Pittsburgh Corning Corp., that were caught up in asbestos litigation and continually beat the plaintiffs-friendly odds in those cases, winning 90 percent of the trials. “I won dozens before my first loss,” he says. That was a $28 million verdict in 1993, in New York, where the verdict was reduced substantially and his client was hit with a limited share of the judgment. In Electro-Matic, Walter was defending a claim brought by Tommy Grimes and Thomas E. Van Meter, who had worked for the National Security Agency (NSA) as telecommunications technicians in the 1980s. As part of their jobs, Walter says, each operated a machine called a degausser made by Electro-Matic. The degausser, which is about the size of a large photocopier, was used to erase large computer tapes and worked by exposing the tapes to strong magnets. In 1987, Van Meter was diagnosed with a brain tumor. In 1989, Grimes found out he had a brain lesion. Both were treated by surgery; the growths did not return. Both men contended that the electromagnetic field created by the degausser had caused their brain abnormalities and filed products liability actions against Electro-Matic Products. The plaintiffs claimed Electro-Matic Products had failed to warn of the dangers of the machines. Two other workers also developed brain tumors; their lawsuits are currently stayed in federal court. NSA stopped using the machines in the early 1990s. When Walter was hired, he says, “The first thing I did was interview the client. I learned what the company does, what it did, I tried to understand the products. I will go back and continually reinterview the corporate representatives during litigation as my understanding deepens and I ask questions that I wouldn’t have known to ask at the start.” During these interviews, “you’re identifying themes, but it’s important that you not get wedded to them. You have to go with the flow.” He realized early on, he says, that he needed an expert in epidemiology. A primary threat to the defense was the perception that jurors might think that four cases of brain lesions or tumors in one workplace indicated a connection. The defense hired Dr. Philip Cole of the University of Alabama at Birmingham, whose own research indicated that, given the large number of people who used these machines over the years, four cases of brain lesions was insignificant. The defense established two basic themes: that the plaintiffs had not been harmed by the Electro-Matic machines and that the plaintiffs’ evidence was based on “junk science.” To Walter, the key to winning was in establishing the credibility of the defense, starting in the opening statement. “I try to teach the jury what they need to know, what a gauss is, what a magnetic field is. Very often these concepts are glossed over by my opponents,” he says. “I don’t think jurors appreciate that.” In this case, he told the jury that “the most important evidence in this trial would be the epidemiology,” the surveys of incidents of illness related to the population and the degree or amount of exposure. “I told them that this was not my belief, but it’s the way that scientists would prove it.” When a jury is faced with contradictory information from the plaintiffs and defendants, with experts on each side offering theories or claims, the jury may be confused on how to decide who’s right, he says. “I tell the jury, ‘Look at the way in which other medical and science people have resolved this.’” Given the defense contention that epidemiology was the key to this case, countering the plaintiffs’ epidemiologist, Samuel Milham, was critical. “Milham testified that based upon his own work and his reading of the literature, he believed that magnetic fields caused the plaintiffs’ brain tumors.” Prior to trial, Walter had taken Milham’s deposition and researched Milham’s published articles and other testimony. “I knew that Milham held a number of radical opinions that were completely out of the mainstream.” Walter picked him apart immediately, during the cross at trial, getting the witness to agree that he believed that electromagnetic fields commonly found in the home were capable of causing brain tumors. The list of dangerous fields included radar, AM radio signals, VHF and UHF television signals and satellite communications from outer space. “But it gets better,” Walter recalls. “I asked him if it was his belief if steel-belted tires cause magnetic fields and exposure causes brain tumors and Alzheimer’s.” The witness agreed, Walter says, “And the jury’s going, ‘What?’” Milham’s testimony, he adds, “fit into one of my themes in opening — the plaintiff is presenting you with junk science. He’s making outrageous claims, but his ideas are not supported by the scientific literature.” The key defense expert was Cole. The defense cited information from NSA that over a 35-year period, at least 30,000 workers had used these degaussers to some extent. As he testified, Cole created a chart on an easel in the courtroom, disputing the plaintiffs’ claims of a connection between the machines and brain abnormalities. “There is a certain drama to watching a witness create evidence,” Walter says. He believes in visual demonstrations of evidence, because some jurors learn visually. On April 30, the Maryland jury completely rejected the claim. TRIAL TIPS � Separate your client from tobacco industry. � Align your defense with scientific methods. � Have witnesses create evidence in court.

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