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OVERVIEW

Product Liability WHEN IT COUNTS

Barnes & Thornburg litigators advocate our manufacturers' and sellers' rights in products claims at both the trial and appellate levels in state and federal courts throughout the United States. We also represent clients in alternative methods for resolution of disputes outside the courtroom, through negotiation, arbitration, and mediation. We provide nationwide coordination of products litigation for several Fortune 500 clients and advise clients with respect to litigation prevention, insurance, and claims-management systems.

The range of legal practices among the firm's litigators enables us to tailor the staffing of litigation to the size and specialized elements of each case. Our complement of litigators gives us the resources to commit an aggressive team when needed for complex cases and emergencies. We have developed systems for early evaluation of cases, case-management planning, and budgeting to enable us to conduct litigation in a manner focused on achieving our clients' objectives.

Our litigation support staff includes legal assistants, research librarians, and computer specialists. These in-house capabilities reflect our continuing sensitivity to the ever-increasing need for sophisticated services while at the same time controlling the cost of litigation.

EXPERIENCE
  • A Barnes & Thornburg attorney represented a cable manufacturer and secured summary judgment in a wrongful death case. The plaintiff suffered burns over 90% of his body when an explosion occurred in an electric vault in which the plaintiff was working. After three months in a medically induced coma and another six months of skin grafts, painful medical treatment and over $2.5 million in medical expenses, the plaintiff died. The plaintiff alleged that the explosion occurred as a result of water intrusion caused by a defect in one of the electric cables, allegedly manufactured by our client, which ran through the vault. Through discovery, it was established that the accident was not caused by any electric cable manufactured by our client.
  • A Barnes & Thornburg attorney represented a farm operator in the defense of lawsuits arising out of electrocution deaths of two minors and injury to two minors.
  • A Barnes & Thornburg attorney represented a garage door manufacturer in a case where a minor sustained neurological injury alleged to have resulted from entrapment under a garage door equipped with electronic operator which was manufactured and installed prior to government requirement of non-contact reversing devices. Brown v. Overhead Door Corp., No. 3:06cv50107 (N.D. Ill., filed June 5, 2006).
  • A Barnes & Thornburg attorney represented a global automobile manufacturer as a member of the trial team in a case in the Superior Court of California. The case involved allegations that the plaintiff's mesothelioma was caused by exposure to asbestos products manufactured by the auto manufacturer. The client obtained a defense verdict, which was named one of the Top Defense Verdicts of 2011 by The Daily Journal. Morrison v. Alfa Laval, Inc., Case No. BC441029, Superior Court of California, County of Los Angeles. (*This matter occurred prior to joining Barnes & Thornburg.)
  • A Barnes & Thornburg attorney represented a global automobile manufacturer in an asbestos case in Los Angeles Superior Court where the surviving spouse and sons of Mr. Goebel alleged that the auto manufacturer was responsible for Mr. Goebel’s pleural mesothelioma and death because he was exposed to asbestos-containing automotive products, such as brake pads. The client prevailed obtaining a defense verdict after a six-week jury trial. Goebel v. Ford Motor Company, Case No. BC390954, Superior Court of California, County of Los Angeles. (*This matter occurred prior to joining Barnes & Thornburg.)
  • A Barnes & Thornburg attorney represented a global manufacturer and distributor of powered suspended access and safety equipment in a product liability case involving the alleged malfunction of scaffolding equipment used at a construction site.
  • A Barnes & Thornburg attorney represented a major healthcare product manufacturer in various product liability cases involving claims of infant formula product contamination by enterobacter sakazakii. (This matter occurred prior to the attorney joining Barnes & Thornburg LLP.)
  • A Barnes & Thornburg attorney represented a pet food manufacturer in a case in the Ninth Circuit. The Court reversed decision in favor of opponent supplier and held that client manufacturer had properly stated strict liability claim against supplier under Arizona law. (This matter occurred prior to the attorney joining Barnes & Thornburg LLP.)
  • A Barnes & Thornburg attorney represented a video game manufactuer in a product liability suit against video game manufacturers and film studio arising out of the Columbine High School shootings in which it was alleged that content of video games incited violent acts. The District Court dismissed the case. Sanders v. Acclaim Entm't, Inc., No. 01-B-728 (D. Colo. 2002).
  • A Barnes & Thornburg attorney represented a video game publisher in a product liability suit arising out of fatal stabbing in which it was alleged that content of video games incited violent acts. The case was dismissed and the negligent and intentional infliction of emotional distress claims were precluded by the First Amendment; the video game was protected First Amendment speech. Wilson v. Midway Games, No. 3:00cv2247 (D. Conn. 2002).
  • A Barnes & Thornburg attorney represented a video game publisher in a product liability suit arising out of the Heath High School shootings in Paducah, Kentucky in which it was alleged that content of a video game incited violent acts. The case was dismissed. James v. Meow Media, Inc., No. 5:99cv96 (W.D. Ky. 2000).
  • A Barnes & Thornburg attorney represented a video game publisher in a product liability suit arising out of the Heath High School shootings in Paducah, Kentucky in which it was alleged that content of a video game incited violent acts. The case was dismissed and the Appellate Court affirmed the District Court’s dismissal. James v. Meow Media, Inc., No.00-5922 (6th Cir. 2002).
  • A Barnes & Thornburg attorney represented an automobile manufacturer in product liability design defect case resulting in 7th Circuit decision regarding appropriate use of "stranger to the contract" exception to parole evidence rule. Deckard v. General Motors Corp., No. 01-2156 (7th Cir. 2002).
  • A Barnes & Thornburg attorney represented an international transportation company in which the company obtained summary judgment based on plaintiffs’ inability to eliminate reasonable secondary causation for the injury. The ruling was upheld on appeal. Crisham v. Hung Myung Industrial Co., No. 1-99-3286, Mar 2001.
  • A Barnes & Thornburg attorney represented consumer electric product designer and distributor of extension cords, surge protectors and power strips in product liability cases in several jurisdictions.
  • A Barnes & Thornburg attorney routinely counsels clients regarding the U.S. Consumer Product Safety Commission reporting requirements and product recalls. This work has included the coordination of recalls for a variety of multi-national and national corporations.
  • A Barnes & Thornburg attorney secured a favorable result on behalf of client, Dixie-Narco, a leading manufacturer of vending machines and subsidiary of Crane Co., in a wrongful death action filed in the U.S. District Court of the Northern District of Illinois. The Plaintiff, the estate of a service technician who was electrocuted and killed while servicing a Dixie-Narco vending machine, argued that the technician’s death would not have occurred if the vending machine had been equipped with a ground fault circuit interrupter. During discovery, the firm was able to develop facts suggesting that the technician should have known that the vending machine was plugged in while he was working on energized wires and that, even if the machine had been equipped with a ground fault interrupter, the device would not have tripped when the technician touched two wires. The firm filed a motion for summary judgment and while the motion was pending the plaintiff accepted a nominal nuisance value offer.
  • A Barnes & Thornburg attorney secured a victory for firm client, Crane Composites, a leading provider of fiber-reinforced composite materials. Crane Composites manufactured the walls of a motor home purchased by plaintiffs, who claimed that the defendants' failed to remedy defects in the walls of a motor home they purchased, resulting in property damage and personal injuries allegedly caused by water infiltration. The Appellate Court of Illinois, Fourth Judicial District affirmed the trial court's granting of summary judgment in favor of Crane Composites.
  • A Barnes & Thornburg attorney served as trial counsel in the jury trial of 26 toxic tort claims consolidated in the State of Maryland. Plaintiffs alleged myriad injuries and diseases as a result of exposure to many difference chemicals used in the production of GoreTex®. After a 13-week trial, the jury returned defense verdicts on all claims. Kennedy, et al. v. Mobay Corp., et al. (*This matter occurred prior to joining Barnes & Thornburg.)
  • A St. Louis Circuit Court jury returned a verdict in favor of TASER International, Inc., in a civil suit that claimed the company failed to properly warn of the dangers of its electronic control devices. The product liability suit was filed on behalf of a St. Louis man who went into cardiac arrest and later allegedly suffered brain damage after a TASER device application by St. Louis police at his home while responding to a domestic disturbance call in 2007. Fahy v. TASER International, Inc., Case No. 0922-CC10076 (St. Louis County Circuit Court).
  • Affirmed favorable judgment after lengthy trial reversed three adverse cause-of-death rulings from a coroner erroneously implicating TASER in three drug-related deaths.
  • Affirmed summary judgment for TASER in wrongful death case.
  • Affirming summary judgment for manufacturer in failure to warn case. Rosa v. TASER, 2012 ___ F.3d ___, No. 09-17792 (9th Cir. 2012).
  • Affirming summary judgment for manufacturer in products liability/wrongful death action.
  • Barnes & Thornburg attorneys defended The Valspar Corporation in a case brought by an over-the-road trucker who alleged he developed Reactive Airways Dysfunction Syndrome (RADS) when exposed to fumes from our client’s paint product, which leaked from 55-gallon drums plaintiff was hauling. The defendant proved that the steel drums had been reconditioned by a third-party, which had marked the drum according to its specification under the Department of Transportation’s (DOT) Hazardous Materials Regulations (HMR) implementing the federal Hazardous Materials Transportation Act (HMTA). Granting Valspar’s motion for summary judgment, the Court found, that the defendant was “entitled to rely on the reconditioner’s mark when it accepted the drum in question and is not ultimately liable for any potential defects attributable to the reconditioner.” The Court held that the HMTA preempted all of Plaintiff’s claims. This case could set a precedent for future cases as it addressed and affirmed the preemptive effect of a shipper’s federal right to rely on the DOT specification markings on an allegedly defective container supplied by a third party. Plaintiff has appealed to the U.S. Court of Appeals for the Seventh Circuit. The decision is reported at Noffsinger v. The Valspar Corp., 2014 WL 3705176 (N.D. Ill. July 24, 2014).
  • Barnes & Thornburg attorneys defendeded a safety restraint system manufacturer in matter involving safety restraint systems. (This matter occurred prior to the attorney joining Barnes & Thornburg LLP.)
  • Barnes & Thornburg attorneys have obtained dismissals and other favorable resolutions for The Valspar Corporation in multiple lawsuits alleging injuries as a result of alleged exposure to Valspar’s products. The alleged injuries in these cases have included acute myelogenous leukemia, myelodysplastic syndrome, non-Hodgkins lymphoma, kidney failure, aplastic anemia, and multiple myeloma, as a result of exposure to defendants’ products. By using a combination of aggressive strategies involving case management, dispositive motion practice and expert discovery, Valspar has secured both voluntary and involuntary dismissals as well as de minimus settlements.
  • Barnes & Thornburg attorneys have represented Mercedes-Benz USA in over 20 cases taken to trial in Illinois, Indiana and Ohio, where plaintiffs sought compensatory and other damages for breach of warranty, state Lemon Laws and violation of the Magnuson-Moss Warranty Act. These cases were litigated through trial and post-trial appeals.
  • Barnes & Thornburg attorneys obtained summary judgment for the client in a product liability case, in which Plaintiff steel mill alleged that a shaft manufactured by the client broke and caused more than $11 million in damages. The trial court granted summary judgment in favor of the client under the economic loss doctrine. The Indiana Court of Appeals affirmed. 734 N.E.2d 584 (Ind.Ct.App. 2000).
  • Barnes & Thornburg attorneys obtained summary judgment in favor of seller of candle making kit in a product liability case in which the plaintiff sustained burns from a flash fire while making candles.
  • Barnes & Thornburg attorneys represented a Fortune 500 appliance manufacturer and obtained summary judgment in favor of client in product liability lawsuit for damages caused by fire, including alleged burns, lung damage, mental suffering, and property damage.
  • Barnes & Thornburg attorneys represented a global crane component manufacturer in a case involving plaintiff’s claims seeking recovery for property damage and lost profits. The case included allegations that a 425-ton overhead crane at the plaintiff’s facility malfunctioned, causing 220 tons of hot iron to spill onto the floor of plaintiff’s steel-making facility, resulting in a fire which destroyed facility equipment. The facility was unable to produce steel for several weeks as a result of the damage, and the plaintiff sought over $40 million in damages against our client and two other defendants. After extensive and complicated discovery, the court granted our client’s motion for summary judgment on all claims in the lawsuit. Five weeks later, a jury returned a verdict against the remaining defendant for $39 million dollars.
  • Barnes & Thornburg attorneys represented a global ink and chemical manufacturer in a toxic exposure action which was brought against numerous defendants. The plaintiff alleged that her decedent was exposed to benzene in connection with his work as a pressman and that this exposure caused his multiple myeloma and eventual death. Firm client brought a motion for judgment on the pleadings and argued that the action was barred by Minnesota’s statute of limitations because the lawsuit was filed more than six years after the decedent’s alleged exposure to benzene. The trial court agreed and dismissed the claims with prejudice. The plaintiff appealed the ruling and the Court of Appeals for the State of Minnesota upheld the trial court’s dismissal of the action. The Minnesota Supreme Court denied plaintiff’s request for further review.

    Walsh v. Flint Group, Inc. - Fourth Judicial District, Hennepin County, State of Minnesota - Case No. 27-cv-12-15823.
  • Barnes & Thornburg attorneys represented a manufacturer of industrial conveyor system in case involving serious injuries to plaintiff, who caught his foot in an unguarded pinch point. The Plaintiff attempted to call an expert to testify as to the dangers posed by the machine. Client moved under Daubert to exclude the testimony, and the District Court granted the motion. In light of the fact that the plaintiff could not prove his case without the expert testimony, the court also granted client's motion for summary judgment. The plaintiff appealedand the Seventh Circuit affirmed.
  • Barnes & Thornburg attorneys represented a subcontractor defendant in a construction accident case, including a third-party claim against the general contractor for contractual defense and indemnity. The client appealed the case to the United States Court of Appeals for the Seventh Circuit, where the client won complete indemnification and attorneys’ fees.
  • Barnes & Thornburg attorneys represented chemical manufacturer in liver cancer case involving vinyl chloride exposure and obtained summary judgment on failure to warn, fraud, and conspiracy claims. Taylor v. Airco, Inc., 503 F. Supp. 2d 432 (D. Mass. 2007), aff’d,#576 F.3d 16 (First Circuit 2009).
  • Barnes & Thornburg attorneys serve as Indiana counsel in defense of a leading automotive manufacturer involved in multi-district litigation resulting from consumer class actions alleging incidents of unintended acceleration. Complaints include allegations of breach of implied warranty, breach of express warranty, unjust enrichment, constructive fraud, negligence, and product liability.
  • Barnes & Thornburg attorneys serve as national litigation counsel for a medical device manufacturer and seller in nationwide litigation involving strict liability, warranty, negligence and fraud claims.
  • Barnes & Thornburg attorneys served as coordinating counsel for Johnson & Johnson's DePuy Orthopedics Inc. in an eight-week bellwether trial before a federal jury in Dallas. DePuy prevailed and was cleared of the allegations that it manufactured a dangerous and defective metal-on-metal hip implant. This was the first trial in the litigation in which more than 7,000 cases are consolidated in a multi-district litigation (MDL) pending in Dallas. Barnes & Thornburg is coordinating counsel for the MDL.
  • Barnes & Thornburg attorneys served as national defense counsel for an insulin infusion pump manufacturer and have handled a series of medical device cases involving claims of alleged product malfunctions.
  • Barnes & Thornburg LLP partner John Maley recently assisted client, TASER International, in a Missouri product liability case that was voluntarily dismissed without prejudice. It was the 52nd wrongful death or injury lawsuit that has been dismissed or where TASER obtained a favorable judgment. Maley is lead outside counsel for TASER, which is considered to be a market leader in advanced electronic control devices. Assisting Maley in the recent case were David Ballard of the Chicago office and Cathy Reed of the Indianapolis office.
  • Barnes & Thornburg partners Kathleen Anderson and John Maley assisted TASER International in a product liability case in Akron, Ohio, seeking to overturn three separate adverse coroner rulings in which TASER was blamed for the deaths. Assisting Kathleen and John in the case were attorneys Curt Greene and Damon Leichty, along with paralegal Cathy Reed. After the four-day trial, the judge ruled in TASER's favor, ordering the medical examiners to delete TASER as causal or contributory from each death certificate. The court concurred with the firm’s position that “there is simply no medical, scientific, or electrical evidence to support the conclusions' made by the medical examiners in these cases.” The court also announced that TASER has "proven their claims for changing the reports of autopsy and death certificates on the three individuals by more than a preponderance of the evidence' as well as 'providing overwhelming credible medical and scientific evidence to support their positions.’” The ruling has widespread impact for TASER, both in current litigation in other cases across the country, as well as in influencing other medical examiners in the U.S.
  • Barnes & Thornburg represented a refining technology company in a wrongful death/professional negligence action involving the death by mesothelioma of an inspector and engineer at a foreign oil refinery for which our client allegedly specified the use of asbestos-containing products. After three weeks of trial before a jury, the L.A. Superior Court granted non-suit in favor of our client due to a lack of evidence presented by the plaintiff.
  • Barnes & Thornburg represented an automotive fuel pump manufacturer that was named in a suit involving a fuel pump that was modified and installed by other companies in a small aircraft that crashed. On behalf of our client we filed an insurance coverage case and obtained summary judgment against the insurer’s denial under an aircraft products exclusion. Airtex Products, LP et al v. American Home Assurance Co., Superior Court of California, County of Riverside, Case No.: RIC 1111153.
  • Barnes & Thornburg represented Dow AgroSciences LLC (DAS) in a significant personal injury case pending in Federal District Court in Pittsburgh, Pennsylvania. The Court granted DAS’ motion to exclude the expert testimony of plaintiffs’ medical causation expert, Dr. Bennet Omalu, M.D., who opined that exposure to Dursban® pesticide products manufactured and sold by DAS caused a pesticide applicator, Robert Pritchard, to develop a form of non-Hodgkin’s lymphoma (“NHL”). More specifically, Mr. Pritchard alleged that from 1982 through 2000 he repeatedly applied various forms of Dursban® in and around buildings and lawns, and was diagnosed with NHL in 2005. Plaintiffs proffered Dr. Omalu, a pathologist and medical examiner, to offer an expert opinion that Dursban® and its active ingredient, chlorpyrifos, can cause NHL (i.e., general causation) and did in fact Mr. Pritchard’s NHL (i.e., specific causation). DAS filed a Daubert motion to exclude Dr. Omalu’s opinions on medical causation, with extensive evidentiary materials, including affidavits from several defense experts. After extensive briefing and a day-long Daubert hearing on November 12, 2009, the Court granted DAS’ motion to exclude Dr. Omalu’s expert opinions. In a lengthy opinion that provided several alternative grounds for Dr. Omalu’s exclusion, Specifically, the Court ruled: (1) that Dr. Omalu’s opinions on general causation were inadmissible because Dr. Omalu’s reliance on and “reinterpretation” of a single epidemiology study was unreliable; (2) that Dr. Omalu’s opinions on specific causation likewise were unreliable and inadmissible due to his flawed methodology and inadequate analysis of other potential causes of Mr. Pritchard’s NHL; and (3) Dr. Omalu’s opinions were so speculative that they did not meet Daubert’s “fit” requirement. Since admissible expert testimony was required to meet the essential element of medical causation, Plaintiffs stipulated to entry of summary judgment so that they could move forward with an appeal. The Third Circuit affirmed on appeal. Pritchard v. Dow AgroSciences, LLC, 705 F. Supp. 2d 471 (W.D. Pa. 2010), aff'd, 430 Fed. Appx. 102 (3d Cir. 2011), cert. denied, 132 S. Ct. 508 (2011).
  • Barnes & Thornburg represented firm client, The Dow Chemical Company, in a multi-plaintiff lawsuit alleging that manufacturing workers developed Parkinson's Disease as a result of alleged exposure to Dow's trichloroethylene (TCE). To avoid the expiration of the statute of limitations, Plaintiffs alleged that Dow fraudulently withheld information about TCE and did not learn that Dow manufactured TCE at the workers' manufacturing plant until shortly before filing suit against Dow. The district court rejected these arguments, held the Plaintiffs' claims were time-barred, and granted Dow's motion to dismiss. Abney et al. v. Univar USA, Inc. et al., No. 5:10-cv-00303 (E.D. Ky. 2012).
  • Client pharmaceutical manufacturer obtained summary judgment in case alleging that a vial of insulin plaintiff purchased was super-potent, causing him to experience severe hypoglycemia and suffer permanent cognitive impairment.
  • Denying plaintiff's motion to file belated causation expert disclosure in products/wrongful death matter; case subsequently dismissed with prejudice.
  • Fifty (50) plaintiffs living near citrus groves in Hidalgo County, Texas, asserted claims for trespass, nuisance, negligence, and strict liability against a pesticide crop applicator and numerous product manufacturers and sellers, including Dow AgroSciences LLC, alleging real property damage and numerous personal injuries, including brain damage, seizures, birth defects, and leukemia allegedly caused by pesticides drifting from applications on the groves. On defendants’ motion, the court entered a “Lone Pine” order requiring plaintiffs to set forth the medical and scientific bases for their claims. After plaintiffs failed to comply with the court’s order, the defendants moved to dismiss the case. In response, plaintiffs amended their complaint to dismiss all claims against the manufacturers and suppliers. The court eventually granted the defendants’ motion and dismissed the case in its entirety, with prejudice. Pina, et al. v. Rio Queen Citrus, Inc., Cause No. C-1945-02-B (Tex. Dist. Ct. May 20, 2009).
  • Granted summary judgment for TASER in wrongful death case.
  • In chronic myelogenous leukemia wrongful death case alleging long term exposure to diesel fuel used to dilute Dow herbicides, summary judgment granted and affirmed because plaintiffs' circumstantial evidence of decedent's exposure was insufficient to satisfy West Virginia substantive state law proximate cause requirements.
  • In DePuy Orthopaedics, et al. v. Travis Brown, et al., Case No. 49A02-1304-CT-00332 (Ind. Ct. App. May 30, 2014), the Indiana Court of Appeals reversed a decision from the Marion County Superior Court denying a forum non conveniens motion in a products liability action brought in Indiana by nineteen non-Indiana plaintiffs. The plaintiffs, who were residents of Virginia and Mississippi, were implanted with a hip prosthesis in surgeries that took place in either Mississippi or Virginia. The prosthesis was designed and manufactured in Leeds, England. Defendants filed a motion to dismiss under Indiana Trial Rule 4.4(C), arguing that Marion County, Indiana is not a convenient forum in which to litigate these claims. The trial court denied the motion, but granted Defendants’ motion for interlocutory appeal. On May 30, 2014, the Indiana Court of Appeals reversed the trial court, noting that the inconvenience of securing out-of-state non-party witnesses and other discovery, the conflict in products liability law among Indiana, Virginia and Mississippi, and the availability of a more convenient forum all warranted dismissal of plaintiffs’ claims. Plaintiffs have petitioned the Indiana Supreme Court for review.
  • Mint farmers alleged that their use of Goal® herbicide severely damaged their crops and sued for breach of contract, breach of the implied warranties of merchantability and fitness for particular purpose, breach of oral guarantees, negligent verbal instructions on the use of the product, negligent research, violation of various state and federal statutes and regulations, gross negligence, and strict liability. The court granted Dow AgroSciences’ motion for summary judgment, holding that plaintiffs’ breach of contract and warranty claims were barred by the product label’s UCC-compliant disclaimers and that plaintiffs’ own expert evidence proved that the statute of limitations had expired on all other remaining claims. Starr v. Dow AgroSciences LLC, 339 F. Supp. 2d 1097 (D. Or. 2004).
  • Mr. Gorenberg serves as National Coordinating Counsel for several defendants in asbestos personal injury litigation. He represents clients in various industries including automotive parts, plumbing equipment, and petroleum refining technology. Each client has different types of litigation risks and defenses. Mr. Gorenberg regularly works with each client to develop creative strategies suited to the particular circumstances of each specific client and every case.
  • On behalf of Fortune 500 appliance manufacture client, Barnes & Thornburg attorneys obtained summary judgment in a product liability action for appliance named in a lawsuit in which four people died and six were injured when a home exploded from a propane leak.
  • On Sept. 4, 2008, the Maryland Court of Appeals affirmed the entry of summary judgment for firm client, Eli Lilly and Company, in a pharmaceutical failure-to-warn case. The plaintiffs were the surviving spouse and children of a driver who was killed in a collision on the Capitol Beltway in Washington, D.C. The collision was caused by a long-term diabetes patient who experienced a severe hypoglycemic episode and lost consciousness while driving. The Court of Appeals unanimously affirmed the trial court's entry of summary judgment on the grounds that Lilly did not owe a duty to warn persons who did not use its drugs, rejecting the plaintiffs' "bystander liability" theory. Barnes & Thornburg LLP attorneys argued the summary judgment motion and presented the appellate arguments in the Maryland Court of Special Appeals and the Maryland Court of Appeals. Gourdine v. Crews, No. 134 (Md. 2008).
  • Plaintiff was cleaning out a garage and discarded a long-expired 16 oz. aerosol can of Dow’s “Great Stuff Big Gap Filler” when it allegedly spontaneously exploded, propelling its bottom plate into her gloved right hand with such force that it allegedly broke bones and caused permanent nerve damage. Dow moved for summary judgment on the grounds that its DOT-2Q specification container met all the requirements of the Hazardous Materials Transportation Act (“HMTA”) and the DOT’s own regulations and that, therefore, all of plaintiff’s claims were expressly preempted by the HMTA; that plaintiff’s failure-to-warn claims were preempted a second time by the Federal Hazardous Substances Act (“FHSA”); and that plaintiff’s claims failed on state law grounds. Although the Court’s Order began by stating that the federal preemption arguments were moot because plaintiff’s claims failed for state law reasons, the Court nevertheless decided the preemption issues and held that plaintiff failed to present any evidence of Dow’s noncompliance with the HMTA or the FHSA, it rejected plaintiff’s anti-preemption arguments, and it entered summary judgment for Dow accordingly.
  • Plaintiff worked as a commercial pesticide applicator and alleged that his exposures to Dursban® caused him to become permanently and totally disabled. Dr. Gunnar Heuser diagnosed his alleged severe chronic fatigue, pain, impaired memory, cognitive function, balance and coordination, abnormal brain scan, low sperm count, and total and permanent disability as caused by his alleged exposures. Trial court dismissed the claims against Dow based on the statute of limitations; the California Court of Appeals dismissed plaintiff's appeal and denied plaintiff's motion to vacate that dismissal. Anstrom v. Dow Chem. Co., No. B198978 (Cal. Ct. App. 2007).
  • Plaintiff’s physician diagnosed his toxic neurotropy, nerve damage, leg weakness, liver problems, tremors, and nausea as caused by his alleged prolonged exposure to Dursban®. The district court granted Dow AgroSciences’ motion to dismiss plaintiff’s claims for negligence, breach of implied warranty, fraud and misrepresentation, strict products liability, and his claim for redhibition as to his personal injuries. Barrette v. Dow AgroSciences, L.L.C., 2002 WL 31365598 (E.D. La. Oct. 18, 2002).
  • Plaintiffs alleged that Mr. Romah’s aplastic anemia, respiratory problems, partial paralysis and other injuries were caused by long-term exposure to Dursban® 2E regularly applied at his workplace. Court excluded the medical causation expert testimony of Plaintiffs’ forensic toxicologist and their oncologist/hematologist and granted summary judgment. Romah v. Hygienic Sanitation Co., No. G.D. 87-22370 (Pa. Ct. Com. Pls. Sept. 10, 2001).
  • Plaintiffs alleged that Ms. Weir's hyperactive airways disease, multiple chemical sensitivity, and other injuries were caused by her exposure to Dursban® L.O. applied at her workplace. The trial court excluded the opinions of Plaintiffs' medical causation expert and granted summary judgment, and the Pennsylvania Superior Court affirmed both of those rulings on appeal. Weir v. Dow Chem. Co., No. 1687 WDA 2005 (Pa. Super. Ct. Aug. 23, 2006).
  • Plaintiffs, a husband and wife, alleged that they used various insecticides containing the active ingredient chlorpyrifos, including Dursban® TC manufactured by Dow AgroSciences, to make residential preconstruction termite applications as part of their pest control business. They contended that Mrs. Sanchez was exposed to these termiticides during her pregnancies with her two sons, and that both sons later developed autism and/or autism spectrum disorders as a result of those exposures. After extensive fact and expert discovery, Dow AgroSciences filed an expert-focused motion for summary judgment based on lack of medical causation. In lieu of responding to that motion, the plaintiffs voluntarily dismissed Dow AgroSciences and pursued their claims against remaining defendants. Sanchez v. Dow AgroSciences, Case No. C-1199-09-F (Tex. Dist. Ct. Aug. 17, 2011).
  • Since 2010, Barnes & Thornburg LLP has served as co-lead counsel for a major medical device manufacturer in the defense of more than 4,000 product liability actions filed in state and federal courts throughout the United States alleging various causes of action including strict product liability.

    In May 2011, the United States Judicial Panel on Multidistrict Litigation ordered the formation of a federal multidistrict litigation in the United States District Court, Northern District of Texas and the firm is playing a lead role in the multidistrict proceeding in the Northern District of Texas as well as in the various state court actions throughout the country.
  • Sixty-three Arkansas and Missouri cotton farmers sued more than a dozen national and regional formulators/distributors of 2,4-D-based herbicides and the 2,4-D active ingredients used in them alleging, inter alia, that due to the unique geological and meterological features of Northeastern Arkansas and Southeastern Missouri, those herbicides as customarily applied to rice fields had moved from the target application sites and had redeposited on plaintiffs’ cotton crops, causing many millions of dollars in crop losses. Plaintiffs sued under strict products liability, for violations of the Arkansas Deceptive Trade Practices Act, and under theories of negligence in design, testing, and warning and instructions for use, misbranding under the Federal Insecticide, Fungicide and Rodenticide Act, breach of the implied warranties of merchantability and fitness for a particular purpose, and for punitive damages.

    A group of the defendant formulators/distributors filed third-party complaints against Dow AgroSciences as the alleged supplier of the 2,4-D manufacturing-grade active ingredients used in their products, and asserted claims for negligence, breach of express and implied warranties, contribution, and costs of defense. The trial court granted Dow AgroSciences’ motions and dismissed the third-party claims against it.

    Burns, et al. v. Universal Crop Protection Alliance, et al./Nufarm Americas Inc. & Albaugh, Inc. v. Dow AgroSciences LLC, No. CV-2009-51 (Ark. Cir. Ct. Aug. 13, 2010).
  • This product liability case involved a prosthetic hip stem that fractured more than 13 years after it was implanted. Two days before the Alabama statute of limitations expired, plaintiffs filed suit against client DePuy Orthopaedics, Inc., and Johnson & Johnson, alleging strict liability, failure to warn and breach of warranty. Though plaintiffs filed the complaint prior to the expiration of the statute of limitations, a summons was not issued until more than six weeks later – well after the statute of limitations had run. DePuy Orthopaedics moved for summary judgment, arguing that Alabama law required a plaintiff to not only timely file a complaint, but also timely serve (or have the intent to timely serve) it as well. On May 13, 2016, the District Court for the Southern District of Alabama granted summary judgment on all counts. On Nov. 28, 2016, in affirming the district court’s ruling, the U.S. Court of Appeals for the Eleventh Circuit applied Alabama law to determine whether the action commenced before the statute of limitations period had run and concluded that under controlling Alabama precedent, withholding service means that the action did not commence when the plaintiffs filed the complaint and the plaintiffs offered no proof demonstrating that they had the requisite intent to timely serve the complaint prior to the running of the statute of limitations.
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