A FRAMEWORK FOR TOXIC TORT LITIGATION Joe G. Hollingsworth Katharine R. Latimer Hollingsworth LLP Foreword Dorothy P. Watson Vice President and General Counsel Novartis Pharmaceuticals Corporation WASHINGTON LEGAL FOUNDATION Washington, D.C. This Monograph is one of a series of original papers published by the Legal Studies Division of the Washington Legal Foundation. Through this and other publications, WLF seeks to provide the national legal community with legal studies on a variety of timely public policy issues. Additional copies of this Monograph may be obtained by writing to the Publications Department, Washington Legal Foundation, 2009 Massachusetts Avenue, N.W., Washington, D.C. 20036. Other recent studies in the WLF Monograph series include: Science Through the Looking-Glass: The Manipulation of “Addiction” & Its Influence over Obesity Policy by Dr. John C. Luik. Foreword by Daniel J. Popeo, Washington Legal Foundation. 2007. Library of Congress No. 2007931992. Ideology Masked As Scientific Truth: The Debate About Advertising And Children by Dr. John C. Luik. Foreword by Professor Todd J. Zywicki, George Mason University Law School. 2006. Library of Congress No. 2006927394 Waiver Of The Attorney-Client Privilege: A Balanced Approach by The Honorable Dick Thornburgh, Kirkpatrck & Lockhart Nicholson Graham LLP. Foreword by The Honorable John Engler, President and CEO, National Association of Manufacturers. Introduction by Laura Stein, Senior Vice President – General Counsel and Corporate Secretary, The Clorox Company. 2006. Library of Congress No. 2006927395. Exporting Precaution: How Europe’s Risk-Free Regulatory Agenda Threatens American Free Enterprise by Lawrence A. Kogan, Institute for Trade, Standards and Sustainable Development, Inc. Commentary by The Honorable James C. Greenwood, President & CEO, Biotechnology Industry Organization; Professor William H. Lash, III, George Mason University School of Law; Graham Mather, Esq., President, European Policy Forum; and Professor Gary E. Marchant, The College of Law at Arizona State University. 2005. Library of Congress No. 200593354. Guarding The Crown Jewels: A Guide To Protecting Your Trade Secrets by Arthur J. Schwab and David J. Porter, Buchanan Ingersoll. Foreword by Laura Stein, Senior Vice President and General Counsel, H.J. Heinz Company. Introduction by John K. Williamson, Assistant General Counsel, Intellectual Property, PPG Industries. 2002. Library of Congress No. 200201077. 8 2008 Washington Legal Foundation Library of Congress Control No. 2008923597 A FRAMEWORK FOR TOXIC TORT LITIGATION Joe G. Hollingsworth Katharine R. Latimer Hollingsworth LLP Foreword Dorothy P. Watson Vice President and General Counsel Novartis Pharmaceuticals Corporation WASHINGTON LEGAL FOUNDATION Washington, D.C. ABOUT THE AUTHORS Joe G. Hollingsworth is a partner at the Washington, D.C. law firm Hollingsworth LLP. Currently in his thirty-fourth year of private practice, Mr. Hollingsworth specializes in complex trials and appeals and leads a practice of eighty attorneys. Over 100 opinions arising from his cases are published in the federal and state reporters. He has been recognized by THE NATIONAL LAW JOURNAL three times for the year’s Top Ten Defense Wins—in 1998 for Warren v. Sandoz Pharmaceuticals Corp., in 2001 for Glastetter v. Novartis Pharmaceuticals Corp., and in 2005 for Crowson v. C.R. Bard, Inc. He defends cases involving pharmaceutical and medical device product liability, toxic and environmental torts, rail and other common carrier torts, and consumer product liability, and he prosecutes and defends complex federal claims involving the government. He has conducted over twenty jury trials on behalf of corporate defendants, each lasting from two weeks to over three and one-half months. He has argued in the United States Supreme Court, in most U.S. Circuit courts, before the U.S. Judicial Panel on Multidistrict Litigation, and in many state supreme courts and intermediate appellate courts. In June 2004, Mr. Hollingsworth conducted the first jury trial in the country involving allegations that hernia repair mesh—used in approximately 700,000 hernia surgeries per year in the U.S. alone—can cause infertility. The Austin, Texas federal jury deliberated for 58 minutes, returning a unanimous verdict for the nation’s largest medical device manufacturer. Mr. Hollingsworth’s next most recent trial win was in September 2003, when his client was awarded a directed verdict at the close of plaintiff’s case in the first Lamisil® (prescription antifungal) jury trial in the country. Representing pharmaceutical manufacturer Novartis Pharmaceuticals Corporation, he tried the case before a federal jury in Charleston, South Carolina. In a recent post-trial victory (General Elec. Co. v. Lowe's Home Centers, Inc., 608 S.E.2d 636 (Ga. 2005)), Mr. Hollingsworth’s client, General Electric, eliminated collateral tort liability for property damage due to the release of a persistent contaminant. Based on 100-year-old national precedents, the Georgia Supreme Court issued a unanimous opinion on questions certified from the Eleventh Circuit, leading to the vacatur of a $20 million verdict in a case tried by another firm. Mr. Hollingsworth’s group represents manufacturers and other corporations in the defense of hundreds of cases nationwide involving pharmaceuticals and medical devices, see, e.g., Rider/Siharath v. Sandoz Pharm. Corp., 131 F. Supp. 2d 1347 (N.D. Ga 2001), aff’d, 295 F.3d 1194 (11th Cir. 2002) (Daubert summary judgment); Hollander v. Sandoz Pharm. Corp., 95 F. Supp. 2d 1230 (W.D. Okla. 2000), aff’d, 289 F.3d 1193 (10th Cir. 2002) (Daubert summary judgment); Glastetter v. Novartis Pharm. Corp., 107 F. Supp. 2d 1015 (E.D. Mo. 2000), aff’d, 252 F.3d 986 (8th Cir. 2001) (Daubert summary judgment); foreign and domestic use of herbicides and pesticides, including DDT, heptachlor/chlordane, and chlorpyrofos, see, e.g., Davidson v. Velsicol Chem. Corp., 834 P.2d 931(Nev. 1992), cert. denied, 507 U.S. 1051 (1993) (first state supreme court post-Cippolone FIFRA preemption decision) and Conde v. Velsicol Chemical Corp., 804 F. Supp. 972 (S.D. Ohio 1992), aff’d, 24 F.3d 809 (6th Cir. 1994) (first post-Daubert summary judgment opinion in 6th Cir.); manufacturing-use chemicals including polychlorinated biphenyls (“PCBs”) and solvents, see, e.g., Schudel v. General Electric Co., 120 F.3d 991 (9th Cir. 1997) (overturning $14 million jury verdict on Daubert grounds); asbestos- containing products; and benzene, see, e.g., Bly v. Tri-Continental Indus., 663 A.3d 1232 (D.C. 1995) (affirming summary judgment in leukemia cases). Mr. Hollingsworth and his group also counsel clients with respect to due diligence and insurance coverage issues relating to toxics liabilities. For over twenty years, Mr. Hollingsworth also has served as lead national counsel for several major manufacturers in the defense of serial toxic product claims involving thousands of claimants and various pharmaceutical and chemical products. See, e.g., In Re Consolidated Parlodel Litig., 22 F. Supp. 2d 320 (D.N.J. 1998) (deconsolidating claims on forum non conveniens grounds). In one such case, in an 11- week jury trial involving an incident featured in a “60 Minutes” episode about national serial litigation against his chemical manufacturer client, Mr. Hollingsworth’s client won a defense verdict profiled in the THE WALL STREET JOURNAL. See Jones v. Velsicol Chemical Corp., 625 N.Y.S.2d 934 (N.Y. App. Div. 1995) (affirming denial of motion for new trial). As national trial counsel in various serial litigation involving chemical and pharmaceutical products, Mr. Hollingsworth helped establish, and works closely with, the Firm’s highly-regarded network of regional and local counsel and consultants. Mr. Hollingsworth’s practice also emphasizes the pursuit of claims ii against the government on behalf of contractors and others. He represented Glendale Federal Bank, and successfully argued its breach- of-contract case before the United States Supreme Court, in the landmark “Winstar” litigation, see 518 U.S. 839 (1996), an oral argument featured in THE AMERICAN LAWYER, and a case that recently concluded with the award of $387 million to his client Glendale. On a national basis, he has pursued indemnity claims against the government on behalf of two former asbestos-containing product manufacturers. In such federal claims litigation, Mr. Hollingsworth has appeared in numerous specialized forums, including the en banc Federal Circuit. Mr. Hollingsworth frequently lectures, and is consulted by media interests, about litigation strategies in complex litigation. See, e.g., NATIONAL LAW JOURNAL (March 19, 2001) (strategies for successful Daubert challenges). He is a member of the U.S. Chamber of Commerce National Chamber Litigation Center’s Constitutional and Administrative Law Committee, a group that helps the Chamber select appropriate cases for amicus participation in the highest appellate courts in the country. He has appeared frequently on behalf of the American Enterprise Institute and the Brookings Institution as a lecturer in federal and state judge educational workshops and related seminars. He is also a member of the Product Liability Advisory Council, an elite group of the most experienced and talented product liability defense attorneys in the nation, as well as the Defense Research Institute (DRI). Mr. Hollingsworth graduated from the Georgetown University Law Center in 1974, and obtained his B.A., with distinction, from DePauw University