Listed below is a summary of the firm’s recent product liability cases. We welcome the opportunity to discuss our experience further and answer your questions regarding our qualifications for specific matters. For more information, please contact Don Rushing at (858) 720-5145 or Charles Kerr in our New York office at (212) 468-8043.

Aerospace and Aviation

• Cessna Caravan 208 Icing Accidents. Representing Cessna Aircraft Company as national coordinating counsel in a series of cases pending in various jurisdictions in the United States arising from accidents involving Cessna Caravan 208 aircraft flown in alleged icing conditions. A multi-district litigation is pending in the U.S. District Court of Kansas involving cases transferred from Texas, Utah, Idaho, New York, Maryland, and Washington. In addition, there is an individual state court action in California.
• Chinook Helicopter Crash in Afghanistan. Representing Honeywell International Inc. in litigation in San Francisco arising from the crash of an Army, special operations Chinook in Afghanistan.
• In re Palomar Crash of January 24, 2006. Representing the County of San Diego in six consolidated cases in federal court in San Diego arising out of the crash of a Cessna Citation 5 jet. The accident occurred during an aborted landing at Palomar Airport in Carlsbad, California resulting in the death of both pilots and two passengers. The case is expected to go to trial in November 2009.
• Apache Helicopter Crash near Kandahar, Afghanistan. Representing Honeywell International Inc. in a lawsuit arising out of the crash of U.S. Army Apache Helicopter near Kandahar Airbase on July 2, 2006. The case was filed in the U.S. District Court for the Western District of Tennessee. We recently obtained a dismissal of the entire case based on the Combatant Activities Exception to the FTCA.
• Paullus/Grizzly Mountain Aviation et al v. McTurbine, et al. Representing SKF USA Inc., a bearing manufacturer, in two cases arising out of a K-Max helicopter crash on March 17, 2006 during logging operations in Dayville, Oregon. The cases have been consolidated and are pending in Nueces County, Texas.
• Chinook Helicopter Crash off Greece. Representing Honeywell International Inc. in a lawsuit arising out of the crash of a Boeing Chinook helicopter that crashed off the coast of Greece into the Aegean Sea on November 9, 2004. Lawsuits are filed in the Greek courts in Chalkidiki, where the accident occurred, as well as in Chicago and Philadelphia. We are defending claims against Honeywell involving alleged defects in the helicopter’s engines FADEC and AFCS.
• Gol Airlines Flight 1907 Litigation. Representing Honeywell International Inc. in a lawsuit involving a mid-air collision between a Boeing 737-800, operated as Gol Airlines Flight 1907, and an Embraer Legacy 600, operated by ExcelAire Services, over the Amazon jungle, Brazil, on September 29, 2006. Cases have been brought in several jurisdictions and we obtained centralized MDL treatment of the cases in the U.S. District Court for the Eastern District of New York. In late July 2008, the motion to dismiss the cases to Brazil for forum non conveniens was granted. The dismissal will result in the settlement of the cases on the basis of Brazilian level damages - a great benefit to the client and the aviation insurance market.
• Flash Airlines Flight 604 Litigation. Representing Honeywell International Inc. in a lawsuit arising out of the crash of a Boeing 737-300 operated as Flash Airlines Flight 604, into the Red Sea off Sharm-El Sheikh, Egypt, on January 3, 2004. Cases initially were filed in the U.S. District Court for the Central District of California by some of the decedents’ estates. The defendants were successful in dismissing those cases on grounds of forum non conveniens in favor of a French forum. Approximately 600 plaintiffs seeking compensation for the deaths of approximately 130 decedents then filed actions in Bobigny, France where the cases are currently on appeal regarding jurisdiction.
• West Caribbean Airways Flight 708. Representing Honeywell International, Inc. in a lawsuit arising from an accident that occurred on August 16, 2005 when West Caribbean Airways Flight 708 crashed near Machiques, Venezuela. The aircraft was a Boeing-manufactured MD-82 allegedly equipped with Pratt & Whitney JT8D-217A engines. Plaintiffs are descendents of the dead crewmembers and have sued, inter alia, Honeywell for negligence and strict liability based on component parts that were allegedly part of the JT8D-217A engines on Flight 708. In conjunction with the other named defendants, Honeywell intends to file a forum non conveniens motion within the next few months and request that the Court transfer these crew cases to either Colombia (where all of the crew members lived and worked) or Martinique.
• Epic Aviation (Air BP Products North America Fuel Contamination Litigation). Representing Epic Aviation, an affiliate of British Petroleum, in property damage claims to aircraft as a result of allegedly contaminated aviation fuel sold by a California fixed base operator. The case was filed in Butte County, California. Recently, we negotiated a settlement for one of the claims, providing for a full and final release of our client, with 100% of the settlement sum to be paid by the co-defendants.
• Cessna Caravan Crash, Washington State. Representing Cessna Aircraft Company in a lawsuit arising out of the crash of a Cessna 208B series aircraft near Naches, Washington on October 7, 2007. Lawsuits are filed in the US District Court for the Western District of Washington.
• Little v. Piper Aircraft. Representing Piper in a wrongful death case arising out of the crash of a Seneca V on November 6, 2005 in Tomball, Texas. Despite the National Transportation Safety Board’s conclusion that the crash was the result of pilot error, the decedents’ family members sued alleging engine failure. The case was filed in the U.S. District Court for the Central District of California. The case is scheduled for trial in March 2009.
• Alaska Airlines Flight 694. Representing Alaska Airlines in a case brought by a group of Egyptian first class passengers who were removed from a flight from Vancouver to Las Vegas after the plane was diverted to Reno. We obtained summary judgment base don the Warsaw Convention and the Tokyo Convention. The case is on appeal before the Ninth Circuit.
• Polinger v. Honeywell. Representing Honeywell International Inc. in a claim by a seriously injured airline baggage handler for personal injuries suffered on November 1, 2003 when he was loading cargo onto a Delta Airlines B-767 at the Ontario International Airport in California. According to the complaint, one of the containers jammed in the conveyor system. While attempting to free the container, the conveyor system engaged and a floor lock pinned plaintiff’s foot to the floor. A motion for summary judgment was filed on behalf of Honeywell and Telair. The motion was granted and plaintiff appealed to the California Court of Appeals. A settlement offer was presented to plaintiffs but rejected. The case is expected to reach settlement before the appellate briefing is completed.
• Boeing Vertol 107-II Accident near Bella Coola, British Columbia. Representing Honeywell International Inc. in two wrongful death cases and a related hull loss claim arising out of the crash of a Boeing Vertol 107-II during logging operations near Bella Coola, British Columbia. The case is currently pending in federal court in Pennsylvania and the courts of British Columbia. The accident aircraft was originally manufactured as a military helicopter for the Swedish military and later remanufactured for commercial use by a codefendant.

Consumer Products

• Battery Replacement Program Litigation. Counsel to a cellular telephone manufacturer in a consumer class action challenging the adequacy of its disclosures regarding the life of the phone's battery, the fact that the battery was not user replaceable, and the cost of replacement. The court granted our motion for summary judgment on all claims.
• Rand International, Inc. v. Lucasfilm, Ltd. Representing Lucasfilm Ltd. in its dispute regarding a cancelled license agreement due to product manufacturing defects that tested harmful for children. The toys were imported by Rand International and used trademarks owned by Lucasfilm. As a result of the cancelled license agreement, Rand International filed suit against Lucasfilm for a restraining order, breach of contract, interference of contract, and several other contract issues. The case was filed in the Northern District of California and is set to go to trial in March 2009.
• Palm Treo 600 and Treo 650 Consumer Class Actions. Representing Palm in multiple class actions alleging false advertising and product defects with respect to the Palm Treo 600 and 650 “smartphones.” Class certification has not yet been sought.
• Cellular Phone Manufacturer Litigation. Lead counsel for a cellular telephone manufacturer in consumer class action lawsuits in federal and state courts in Alabama, Arkansas, California, New York and New Jersey alleging various product defects.
• Adapter Litigation. Representing a computer manufacturer in a class action filed in the Northern District of California alleging misrepresentations and product defects with respect to an adapter sold with the computer. Class certification has not yet been sought.
• Digital Music Player Litigation. Representing a digital music player manufacturer in multiple class actions (federal MDL actions and coordinated California state actions) alleging that the music player develops cosmetic defects in use and asserting false advertising, product defect, breach of warranty and other claims. Class certification has not yet been sought.
• Cytec Industries. Serving as national coordinating counsel for Cytec Industries in asbestos-containing product cases pending in California, Delaware, Illinois, Michigan, Minnesota, Mississippi, Missouri, New York, Maryland, Texas and Wisconsin; as well as the multi-district proceedings in Philadelphia. The cases include personal injury and wrongful death claims by persons alleging exposure in the workplace to asbestos fibers.
• Billon v. Coca-Cola Company; Billion v. PepsiCo. Representing Coca-Cola Company in class actions challenging the use of aspartame as a food additive in defendants’ products, asserting violations of California consumer statutes and common law.
• Environmental Law Foundation v. Birds Eye Foods, Inc. Representing all defendants in citizen suits by the Environmental Law Foundation against manufacturers of potato chips for failure to warn about carcinogen in their products.
• Ortiz v. Coca-Cola. Representing Coca-Cola Company in a consumer class action alleging that the Hick product label is unlawful, unfair and deceptive, breach of implied and express warranty violates the California consumer legal remedies act and constitutes negligent and intentional misrepresentation.
• People v. Coca-Cola, City of Los Angeles v. Coca-Cola. Representing the Coca-Cola Company against numerous claims including product liability/design defect, unfair competition, false and misleading advertising, and public nuisance.
• People v. Frito Lay et al. Representing defendants in an action alleging failure to warn about chemicals in foods. This case has been heavily litigated, including numerous motions. The defendants defeated a summary judgment motion.
• Japanese Product Recall Matters. Representing a major Japanese product manufacturer in the worldwide recall of an allegedly defective thermostat used in industrial furnaces. We assisted the client in structuring and managing the recall program, identifying and tracing the products at issue, including developing external communications with vendors and customers, designing the financial and logistical procedures for the recall, and working with counsel in Europe, Africa, and South America.
• Digital Music Player Battery Cases. Represented a digital music player manufacturer in coordinated consumer class actions alleging product defects, false advertising, violations of California Business and Professions Code § 17200 and § 17500, violations of the Consumer Legal Remedies Act, and other claims regarding the battery. The cases settled on a nationwide class basis prior to class certification.
• Computer Display Litigation. Represented a computer display manufacturer in a consumer class action filed in Los Angeles Superior Court (Complex Division) alleging false advertising and product defects with respect to certain flat panel displays. The case was resolved by a nationwide class action settlement.
• Software DVD Player Class Action. Represented a software DVD player manufacturer in consumer class actions alleging false advertising and product defects respecting software DVD player. This case settled in favor of our client.
• Zeppetellav. Toyobo. This case arose out of a brutal murder of an Oceanside police officer who was shot thirteen times. Three of the bullets impacted his bullet resistant vest, one of which penetrated several layers. This firm, along with Weil Gotshal & Manges, represented Toyobo, the Japanese manufacturer of the fiber used in the bullet resistant vest. The case was tried to a jury after which a favorable settlement was obtained for Toyobo.

Consumer Product Counseling

• Office Furniture Manufacturer. Coordinating the recall of client's office chair products under Consumer Product Safety Commission's regulations, and coordinating comprehensive recall plan.
• Lithium Ion Car Battery Manufacturer. Advised client regarding applicable warnings, instructions and risk assessment for lithium ion batteries for “green” cars.
• Battery Manufacturer. Advised component parts manufacturer on liability associated with recall efforts for product.
• Medical Device Manufacturer. Advised client regarding medical device component part and potential liability.
• Toy Manufacturer. Advised client regarding proper testing, standards, safety standards, warning labels and age requirements for toy products.
• China-based Manufacturer. Advised overseas client on product liability risks associated with aviation fleet management agreement.
• LucasFilm Ltd. Advised client on revised licensing agreement for product liability concerns.
• Baby Stroller Manufacturer. Advised client regarding limitation of warranties in distributor contract for its baby strollers, as well as the provision of warranties to the company’s international customers.
• Medical Device Manufacturer. Advised client regarding inclusion of warning language in video regarding medical product.
• Upscale Home Goods Store. Advised client regarding use of warehouse setting for selling returned goods.
• Toy Manufacturer. Advised client regarding toy manufacturing and labeling standards in U.S. and Europe.
• Component Flooring Manufacturer. Advised client regarding a risk assessment of their product, associated product warnings, product liability insurance, and the provision of product warranties and disclaimers of warranties.

Pharmaceuticals and Medical Devices

• Pain Pump Matters. Serving as national counsel for a major pharmaceutical company in product liability litigation filed in numerous jurisdictions around the nation. The plaintiffs in these matters allege that our client's local anesthetic products used in pain pumps contribute to the development of a post-surgical chondrolysis, degenerative condition of the shoulder.
• Bayer PPA Litigation. Selected as part of the national trial team for the Bayer Corporation PPA litigation throughout the United States. PPA was an ingredient of Alka Seltzer Plus, and other cough and cold remedies. Hundreds of cases were filed around the country alleging a correlation between the use of PPA and subsequent strokes.
• ELIDEL® Litigation. Representing the German manufacturer of an eczema treatment in a series of cases alleging that the product causes lymphoma. Defendants prevailed in the first Daubert motion, the remaining cases are stayed pending the decision in Wyeth v. Levine.
• In re Eye Drop Class Action Litigation. Defending a large pharmaceutical company in a class action case alleging that one of its ophthalmologic products contained insufficient preservatives and was subject to contamination, resulting in an infectious injury.
• In re Aredia and Zometa Litigation. Representing the drug manufacturer in an MDL proceeding and state consolidated cases where plaintiffs claim the product causes a degenerative condition of the jaw. The litigation is in discovery.
• In re Zelnorm Litigation. Representing major pharmaceutical company in nationwide litigation alleging cardiovascular injuries in connection with irritable-bowel syndrome medication. The cases are in discovery.
• In re PPA Litigation. Serving as national counsel for a major pharmaceutical company in the Phenylpropanolamine (PPA) product liability multidistrict proceeding. We handled all aspects of pre-trial and trial strategy formulation, which included preparing and arguing dispositive motions, and supervising local counsel around the country. After several defense victories at trial, plaintiffs abandoned the litigation.
• Anchor v. Novartis Grimsby Ltd., et al, Civil Action No. 07-0030-CV. A class of plaintiffs affected by a chemical release by the Diaz Chemical Corporation in upstate New York brought suit against a major pharmaceutical company and it affiliates who were allegedly involved in the production of the chemical at issue. The District Court for the Western District of New York granted our motion to dismiss, holding that the allegations failed to establish a tort by our clients, which precluded a finding of personal jurisdiction, and the Second Circuit affirmed.
• Aventis Pharmaceuticals. Represented Aventis Pharmaceuticals in a consumer class action case alleging violations of consumer fraud, violation of the Consumer Confidentiality of Medical Information Act, and Cal. Bus. & Prof. Code section 17200. We successfully demurred to multiple amendments to the complaint leading to final judgment in favor of Aventis.
• Dulin, et al. v. Guidant, et al. Represented a large pharmaceutical company allegedly involved in the production of a drug-eluting stent that plaintiff claims injured him during a clinical trial. Plaintiff also sought to confirm a class seeking medical-monitoring. After filing a motion to dismiss, which raised defenses including preemption, and the requirement of physical injury, plaintiff dropped all claims against our client.
• In re Parlodel Litigation. Served as national counsel for a major pharmaceutical company in nationwide product liability litigation involving a prescription drug used for lactation suppression. We handled all aspects of pre-trial and trial strategy formulation, which included several successful dispositive motions, one of which we successfully defended in the Tenth Circuit. Our client obtained numerous dismissals, and settlements on favorable terms.
• Pelusov. Gambro, Inc. Defended Gambro in a personal injury claim by a man allegedly rendered deaf by the client’s kidney dialyzer. The case was successfully appealed on liability, and a subsequent favorable settlement resulted.
• Sandoz AG. Defended Sandoz in a personally injury claim arising from exposure to chemical product. The case resulted in a favorable settlement.
• Sankyo. Served as nationwide coordinating counsel for Sankyo in the Rezulin product liability litigation and were responsible for Sankyo’s defense strategy in hundreds of claims in state and federal court around the country and the efforts to consolidate cases in federal multi-district litigation (“MDL”).
• Washington University in St. Louis. Represented Washington University in St. Louis in a number of breast implant product liability cases involving triglyceride-filled implants which dealt with liability of academic institutions for defects in products made by their licensees under patented inventions developed at the academic institution.