www.americanlawyer.com JANUARY 2004 LITIGATION DEPARTMENT of the YEAR FINALIST

THE VERDICT IS IN!

Litigation: Product Liability • Winner Jones Day LITIGATION: PRODUCT LIABILITY • Winner JONES DAY

Hard Cases

FROM HANDGUNS TO TOBACCO, JONES DAY DEFENDS THE POWERFULLY DAMNED AND THE DAMNED POWERFUL.

By Matt Fleischer-Black

N NOVEM- the prospects for a jury trial that features a ber 1, 2003, sympathetic injured plaintiff. Of the 15 firms the lawyers that competed in this niche, we scored Jones from Jones Day at the top. The firm’s lawyers had notable Day were wins before, during, and after trial. They heading into represented the widely unpopular—gun and four different product liability trials in three makers—and the merely sued—tire different time zones. In each, a different manufacturers and generators of silica sand. Oproduct’s reputation was at risk: in They fought off novel claims and tilted against Florida, automatic sliding doors in New York, some of the best plaintiffs lawyers in the land. airplane altitude indicators in Missouri, and, in In particular, Jones Day has excelled at California, a headline-spawning case revolving thwarting class actions before they start. around computers made by International Clients love those class certification denials Business Machines Corporation. All they had because they force plaintiffs lawyers to invest in common was the law firm for the defense. much money or else drop their cases. According to firm records, its lawyers Jones Day’s products practice is rooted in FROM LEFT: FENNELL, GROSSMAN, POHL, appeared in court to defend 50 different types its defense of tobacco companies. Since the PAUL CRIST, CAROL HOGAN, ELIZABETH KESSLER, MURPHY of products during 2002 and 2003. mid-1980s, the firm has represented R.J. The range of products that Jones Day Reynolds Tobacco Holdings, Inc., the makers defends is just one way that the firm has of , Camel, and cigarettes. At four months, yet in February 2003 Jones Day’s separated itself from its competitors in product the start of 2002, R.J. Reynolds faced trouble Theodore Grossman won a rare—and unani- liability litigation since January 2002. During in California. A state law had immunized mous—jury verdict. At the same time, a this time period, Jones Day tried cases to juries cigarette companies against individual smokers separate Jones Day team had tried a case in more frequently than most other prominent suits through the 1990s, but the statute was San Francisco that was filed by smoker Elaine product liability practices. Today such trial repealed. Cigarette makers had begun facing a Conley. The state judge in the case listened to experience matters. A few manufacturers have string of cases, and the early returns were not four weeks of testimony, then dismissed it on always refused to settle cases, but the public good for the companies: In three successive summary judgment, concluding that Conley debate over tort reform has inspired some cases, California juries had favored the smok- had not proved that the company had failed to additional company legal chiefs to resist ers, awarding $50 million, $3 billion, and $28 adequately warn her. compromise. During the past two years, Jones billion. Additionally, the state had pursued an The two victories (along with a Philip Day has been clearly ready to press their aggressive antitobacco advertising campaign Morris USA Inc. victory in Los Angeles) clients’ cases from start to finish. This firm is that went beyond health questions to attack turned the tide for tobacco in California. The not hired to make idle threats. executives: “Are you choking on tobacco state had been an appealing target for plaintiffs Product liability specialists face a mix of industry lies?” one ad asked the public. after dismissals in many other state courts. challenges that are distinct from what other For R.J. Reynolds, the first California test “There was a perception among the bar and litigators face. Manufacturers seek defense came from a suit filed by lung cancer sufferer certainly on Wall Street that we were going to attorneys who can control the pace of disputes Laurence Lucier. Three major plaintiffs firms face a problem with individual lawsuits in across many jurisdictions, orchestrate simulta- brought the suit jointly, which started in California,” says Charles Blixt, the R.J. neous discovery across the nation, and assess Sacramento in late 2002. The trial went on for Reynolds general counsel. After the decision, PRACTICE Partners: 43 GROUP Associates: 68 the plaintiffs lawyers behind the Sacramento the oral argument, according to attorneys Staff Attorneys: 26 case dismissed many other smoking cases. representing other clients on the case. The “There was a turnaround,” says Bobbie Wilson reversal, says David Adelman, a tobacco GROUP AS PERCENT Partners: 7% of Howard, Rice, Nemerovski, Canady, Falk & analyst at Morgan Stanley, was monumental: OF FIRM Associates: 5% Rabkin, a cocounsel for Jones Day in the Engle “was the only verdict in history that Staff Attorneys: 41% Conley case. “Now there are not a ton of cases would have been bankrupting to every single being filed.” According to Blixt, 80 percent company in an industry.” Now, for the ESTIMATED PERCENT 15% of individual tobacco cases in California cigarette makers, “it’s abundantly clear that OF FIRM REVENUE 2003 have been dismissed. [the caseload] is shrinking,” he says. Jones Day also played a central role in the Jones Day delivered a big victory in early ON THE DOCKET Defending IBM in chemical nation’s biggest recent tobacco industry victo- 2002 to another longtime client, tire maker exposure cases on both coasts, and Dole Food ry. In 2000 a Florida jury had decided that five Bridgestone/Firestone North America Tire, Company on pesticide claims. tobacco companies, including RJR, collectively LLC. In 2000 the company had recalled 6.5 owed $145 billion for defrauding smokers. million tires made to fit on various sport utility ageable because the plaintiffs’ tires were of dif- Plaintiffs attorneys took the decision, known as vehicles. Tire owners filed more than 100 class ferent sizes, made to different specifications. Engle, as a sign that cigarette makers were actions claiming they were sold defective Together with Ford’s lawyers at O’Melveny & highly vulnerable before juries in the wake of products, and the Panel on Multidistrict Liti- Myers, they beat a powerful set of opponents, the 1998 national tobacco settlement. But in gation consolidated them into a single federal David Boies of Boies, Schiller & Flexner and the middle of 2002, a consortium of attorneys class action. The judge who got the assignment Elizabeth Cabraser of Lieff, Cabraser, for the tobacco companies convinced a state then approved a plaintiffs class. But in early Heimann & Bernstein. Now the plaintiffs appellate court to reverse the decision. Robert 2002 Jones Day’s Hugh Whiting was able to lawyers needed to scatter their cases. “It really Klonoff of Jones Day was one of two lawyers convince the U.S. Court of Appeals for the took the momentum away,” says Gary Garfield, who handled the initial drafting of the appeals Seventh Circuit to decertify the class, winning the general counsel of Bridgestone/ Firestone. brief, and one of five who edited it and shaped on an argument that the class was too unman- Afterward, the company struck a settlement of the class action that, if approved at a January movement of guns used in crime.” litigation involving worker exposure to berylli- fairness hearing, will close out the litigation. Even though Jones Day was a new initiate um, helped along by a class decertification Jones Day clearly benefits from serving the in the fraternity of gun attorneys, the 68 gun order from an Ohio state court. But state ap- same clients it has represented for years. In makers chose Thomas Fennell of the Dallas pellate judges recertified the class in October the early 1980s, the firm had helped Firestone office to argue their interpretation of the gun 2002, and Jones Day again must find a way to with an earlier recall of 14.5 million radial statistics. The Brooklyn jury—an unusual defeat those chemical exposure claims. belted tires. That experience is part of what advisory one, convened by judge Jack Jones Day doesn’t have universal appeal. clients seek. But one reason that Jones Day Weinstein—sided with the gun makers. On Some in-house attorneys who supervise Jones rose above other candidate firms during our July 21, 2003, the judge affirmed the Day’s work say that the firm does not manage time period was its handling of high-stakes verdict, even as he lambasted the industry for costs well enough to earn them smaller cases. litigation for newer clients. A rush of claims neglecting “to take many obvious and easily (Others, such as Colt’s Chen, praised the firm’s have recently surfaced for injuries related to implemented steps.” This result was better for ability to control costs in big-ticket litigation.) workers’ exposure to silica sand, a purified the manufacturers than what many observers The firm’s main weakness, to some of version of the second most common substance had expected. the other firms considered, was its lack of a on earth. U.S. Silica Company, one of the The general counsel of Colt was prominent assignment from one of primary refiners of the substance, tapped one of many in-house lawyers who the pharmaceutical companies—the Jones Day in mid-2002 to defend it in Texas told The American Lawyer that they new villains in the public square. state court in Tyler. The plaintiffs were asking were pleased with Jones Day’s ability for $40 million, and hundreds of others were and service. “There was no time for HAT MAY BE CHANGING. lined up right behind them. a learning curve,” says Colt attorney Jones Day represented McNeil U.S. Silica had already lost one Texas trial; Carlton Chen, adding, “The true Consumer & Specialty Pharmaceu- the jury awarded $7.5 million in damages. mark of [excellent] counsel in this ticals, which makes Children’s In Tyler, the plaintiffs were former foundry kind of complex litigation is how Tylenol, in an arbitration involving workers who claimed shortness of breath, and well they get along with other counsel without three families, and is now representing TAP their lawyers were from the aggressive and being a rubber stamp.” Also important:TPharmaceutical Products Inc., which makes resourceful Dallas–based Baron & Budd. Yet, “They’re good at making in-house counsel the cancer-fighting hormone treatment after a two-and-a-half-week defense led by look good.” Lupron, in various cases. Reflecting an Terence Murphy of Jones Day’s Dallas office, Jones Day has as large a product liability overseas capability, lawyers in the firm’s Paris the jury cleared the company. Following this practice as they come, with 43 partners office convinced a Lyon appellate court to July 2002 verdict, Baron & Budd settled 18 working at least 75 percent of the time on such reverse a finding that the leading French other cases against Jones Day’s clients. claims. (Like many products departments, blood bank had provided contaminated blood. Colt’s Manufacturing Company, Inc., the it also employs many “staff attorneys”— Jones Day built its practice years ago by famous gun maker, was another new client non-partnership-track J.D.s, often senior in focusing on mechanical products in the that turned to Jones Day for help. For Colt, age to associates—who focus on discovery heartland of the country. Its expertise is still Jones Day lawyers confronted a bevy of matters in only one or two cases at a time.) valuable in the high-tech age. The firm’s politically heated lawsuits filed by municipal Size is a selling point. Clients say they like the Robert Weber, who made his reputation by governments and nonprofit organizations. In firm’s ability to assemble teams, often drawn defending cigarette makers, has decamped for many of them, Jones Day has had to parry a from several offices—and to dispatch their San Jose, where he’s representing IBM against broad and coordinated legal attack, as well as troops to remote locations, or at least locations claims that employees in a California factory untested theories. These cases go beyond far from home, for months at a time. were exposed to harmful chemicals while they the usual accusations of physical pain, Pittsburgh partner Paul Pohl insists that at made the company’s computers. The results of essentially to charge Colt with fos- least some of Jones Day’s success is based on a this one trial will surely define a row of similar tering a widespread social injury: sense of teamwork. He concedes that this cases right behind it—and help decide Jones violent urban crime. derives partly from partners not knowing each Day’s standing in the next review of America’s other’s profit shares, which makes them com- top litigation shops. O FAR, THE FIRM HAS fortable moving matters to others at the firm. helped Colt achieve 12 full and This approach hasn’t ensured victory at all Additional reporting by Emily Barker. final dismissals, one jury victory, times. There were two notable losses during E-mail: [email protected]. and eight appealable dismissals. the period we reviewed. Defending R.J. This article is reprinted with permission from the January Only four open cases remain. It also helped Reynolds in Kansas, partner Sydney Bosworth 2004 edition of THE AMERICAN LAWYER. © 2004 ALM lead an industrywide defense in what may have McDole lost a $15 million jury verdict in a Properties, Inc. All rights reserved. Further duplication with- S out permission is prohibited. For information, contact been the most contentious lawsuit on the gun smokers case. That case is on appeal. Also, the American Lawyer Media, Reprint Department at 800-888- landscape, a federal case in Brooklyn, New firm appeared to be wrapping up a years-long 8300 x6111. #001-01-04-0020 York, filed by the NAACP. The NAACP alleged that Colt and other gun manufacturers had failed to vet gun dealers, thus allowing criminals to easily obtain guns. “Gun-control lawyers have some powerful new legal ammunition and a sympathetic trial judge,” wrote The Wall Street Journal right before the case headed to trial, and “their ammunition comes from . . . a trove of statistics on the www.jonesday.com