Lead-laced baby food is the kind of allegation that makes corporate executives want to curl into a fetal position.
When Gerber and 15 other manufacturers of baby food and fruit juices faced a lawsuit under California’s Prop. 65 accusing them of failing to warn consumers of trace amounts of lead in packaged fruit products, they turned to Morrison & Foerster’s products-liability group.
BASF and Ricoh Electronics did too, when they faced a suit alleging they had contaminated groundwater in Orange County.
And Iovate, a nutritional supplement company, turned to the firm when it faced false advertising litigation involving its flagship product.
Morrison & Foerster’s products-liability lawyers, many armed with technical degrees and backgrounds, achieved good results for clients in disputes over everything from aviation and aerospace to pharmaceutical and medical devices.
In Environmental Law Foundation v. Beech-Nut Nutrition, the first task was proving that the lead in the packaged fruit products was below the amount requiring label warnings. It was “scientifically intense,” requiring an understanding of toxicology, food consumption, geology, agriculture and food safety, according to Robert Falk, a lead partner on the case.
Falk and his team conducted a national search to find academics and scientists for the defense, he said. By guiding the assembled group of experts through the strategy for the testimony, the attorneys proved that the lead levels in the products fell below the threshold required by Prop 65.
“The selection, the preparation and the presentation of the witness are key parts of a successful defense of a toxic tort case,” said L.A. partner Peter Hsaio, head of MoFo’s green products and chemicals team.
Ruling on the case, Alameda County Judge Steven Brick found the companies “have shown that each of their products is below the regulatory ‘safe harbor’ exposure level, and for that reason, no warnings are required.”
For another client, MoFo’s product-liability group contained a firestorm of mass tort and false advertising litigation that threatened to engulf Iovate Health Sciences International after the U.S. Food and Drug Administration issued a warning about its leading diet aid, Hydroxycut. All told, 177 individual claims or class actions were filed against the Canadian-based company in 53 different U.S. courts.
MoFo was able to get many of the cases consolidated in San Diego federal court, where the MDL proceedings settled for $20 million in cash or replacement product. The remaining claims, grouped in California, Pennsylvania and New Jersey, also settled on terms Iovate saw as favorable.
“We’ve seen all the hurdles show up in this case, and every time, [the MoFo lawyers] were able to explain what’s happening and help me and the senior management here take the best route both from a strategic and monetary perspective,” said Iovate’s general counsel Roch Vaillancourt.
Vaillancourt, who has been at the helm of Iovate’s legal department for seven years, said MoFo’s client communication stands out. “I’ve dealt with other firms that have told me they’ve submitted briefs or filed a motion after the fact,” he said.
The firm’s product-liability team is busy now on matters including advising an aircraft component maker on potential litigation over the Asiana Flight 214 crash at San Francisco International airport earlier this year; helping the maker of the heartburn medication Reglan fend off suits alleging side effects from off-label uses; and representing coffee producers in a suit alleging the industry ought to provide cancer warnings.
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