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Overview
Vinson & Elkins is a leader in handling and defending mass tort litigation. Handling and trying cases involving hundreds, thousands or even hundreds of thousands of claimants requires a degree of coordination, management and resources that is unique to mass tort litigation. Mass litigation often involves large numbers of individual cases (including multi-plaintiff cases) pending in different courts across the state and across the country, multiple and overlapping trial settings in different venues, duplicative and uncoordinated discovery directed at the company and its witnesses, novel legal theories and duplicative and possibly conflicting legal rulings. Without counsel experienced in handling these types of issues, a company can very quickly find itself overwhelmed by mass litigation. We have a group of experienced and tested first chair trial lawyers with experience and track records in handling and trying mass tort litigation, and our clients have entrusted us with mass litigation and cases that involve "bet the company" exposure and the glare of media attention.
Vinson & Elkins has successfully handled and tried many of the most high profile and complex litigation matters involving mass torts in recent history. In Texas and across the country, Vinson & Elkins has handled mass litigation involving claims arising from toxic emissions and from product liability, brought by plaintiffs alleging both personal injury damages and property damages. Vinson & Elkins was named the "World's Leading Energy Law Firm" in Euromoney's 2003 Guide to the World's Leading Energy and Natural Resource Lawyers, and our energy expertise is particularly invaluable in handling mass toxic torts. Our clients have included refineries; industrial plants; pipelines; chemical manufacturers; building component manufacturers; pharmaceutical companies; and consumer goods manufacturers. In product-based litigation, we have defended claims arising from automobile tires, polybutylene resin, prescription drugs, non-prescription drugs, building components such as siding and stucco and medical implants. In toxic tort-based and occupational disease litigation, we have defended multitudes of claims arising from alleged exposure to arsenic, benzene, dibromochloropropane, silica, hexavalent chromium and hydrocarbons, among other substances. We have challenged novel damage theories, including claims for fear of future disease, medical monitoring, and stigma diminution of property value. Often the events leading to mass tort litigation can also lead to parallel proceedings such as regulatory agency investigations and threatened criminal investigations. We have successfully coordinated the defense of civil mass tort actions with pending or threatened regulatory or criminal investigations.
Vinson & Elkins has the expertise and the resources to aggressively defend clients targeted by mass tort plaintiffs. The defense begins with the creation of a team of lawyers experienced in handling mass tort litigation. Next we will assess whether pretrial coordination of the litigation, which has the potential to lessen some of the immediate and long term pressures, is advisable. This is followed by the development of litigation themes and core company evidence. Individual case work-up continues by experienced litigators skilled at mastering the particular science or product area involved, and who have cultivated and maintained relationships with top experts in areas routinely involved in mass litigation. Appellate lawyers experienced in mass litigation are involved in identifying key legal issues that will shape the litigation, and will assist in formulating a strategy for resolution of those issues in the proper forum. The appellate lawyers will also handle mandamus petitions and interlocutory appeals, and will error preserve before and during trial. After the trial is over, our appellate lawyers will prepare post-trial and post-judgment motions and briefing in the trial court, and briefing in the appellate courts. Lawyers in related practice areas at V&E;, including environmental, administrative and regulatory law will also be consulted as necessary. We also have the in-house resources to handle the day-to-day logistics of large mass tort litigation, including sophisticated databases and other tools for internal management of files and information, and web-based extranets for sharing critical data with the client and affiliated counsel.
Mass Toxic Torts
Leaders in energy and chemical industries have trusted V&E; with high-risk and high-profile cases involving allegations of personal injury and property damage stemming from emissions or chemical releases claimed to have been toxic. Recent experience includes:
- Defense of over 17,000 claims against a major pipeline company related to the rupture of two pipelines and resulting major petroleum products spill; our work included a twelve-week trial resulting in a defense verdict selected as one of the top overall defense verdicts for 1997 by The National Law Journal
- Defense of a major petrochemical manufacturer in litigation filed by tens of thousands of banana plantation workers allegedly rendered sterile by application of a pesticide to the plants; representation includes supervision of defense of actions filed in multiple non-U.S. venues
- Defense of a class action filed by several thousand named plaintiffs on behalf of a purported class in excess of 100,000 individuals, involving claimed injuries allegedly caused by Gulf War exposure to certain chemical and biological weapons components allegedly sold by our major chemical manufacturing client
- Defense of approximately 8,000 claims against the parent company of a chemical refinery alleged to have released certain chemical contaminants near Corpus Christi, Texas; our work included a ten-week trial resulting in a jury verdict of no liability against our client
- Defense of an international chemical company against tens of thousands of claims related to alleged arsenic contamination of surface water, ground water and air; plaintiffs included families of babies born with severe neural tube defects
- Defense of one of nine refineries near Corpus Christi, Texas alleged by several thousand nearby residents to have collectively contaminated air and groundwater over a 60 year period and to have resulted in personal injury and property damages
- Defense of the parent company of an industrial chrome-plating facility sued in several multi-plaintiff personal injury and property damage suits alleging hexavalent chromium contamination of area ground water; in two years, V&E; took six of the cases to trial, with defense verdicts rendered in three cases and settlement of the remaining three cases before verdict; our work also included development and execution of a value protection plan for area residents
- Defense of several clients in thousands of claims alleging personal injury and property damage due to alleged emissions of toxins from various Superfund sites
- Defense of thousands of occupational exposure cases involving asbestos, silica, and benzene, among other substances
Mass Product Liability Torts
V&E; has been involved in many of this generation’s major mass product liability actions. In Texas and venues across the country, we have defended litigation brought by consumer and commercial users of tires, medical implants, building product components, and pharmaceutical drugs, both prescription and over-the-counter. Our representation has specifically included:
- Texas counsel for Bridgestone/Firestone, Inc. in litigation of hundreds of claimed tire failures allegedly related to a product recall, including the first case to be tried in the United States; representation includes defense of actions filed in Texas by residents of Mexico and Venezuela involving accidents alleged to have occurred in Mexico or Venezuela
- Joint primary Texas counsel for a major pharmaceutical manufacturer in mass litigation relating to prescription diet drugs
- Joint primary Texas counsel for a major pharmaceutical manufacturer in mass litigation relating to over the counter drugs
- National counsel in nationwide litigation by hundreds of thousands of homeowners against the manufacturer of resin used to make polybutylene pipe for plumbing systems alleged to have been defective
- National counsel for a northwest U.S.-based siding manufacturer in mass products cases, including eight statewide class actions, three national class actions and three state Attorney General’s inquiries
- National counsel for a major medical center research hospital in thousands of individual cases and one nationwide class action alleging defects in material used in temporal mandibular joint [jaw] implants
- Regional counsel for a major building materials supplier in hundreds of products cases relating to synthetic stucco
Experience in Developing and Coordinating Key Aspects of Mass Litigation As National or Texas Counsel
Vinson & Elkins has the experience and the resources to manage mass litigation on a statewide level and a nationwide level. In addition to the usual defense of each individual case, mass litigation requires a comprehensive strategy to address discovery issues, factual development of the cases, analysis of key legal issues, and trial preparation. The ability to call on seasoned trial lawyers to try multiple cases in different venues simultaneously, the ability to staff teams of lawyers experienced in preparing mass tort cases for trial, the ability to obtain pretrial coordination of the litigation before one or more courts, the ability to identify legal issues and form a strategy for addressing those issues at a time and place most favorable for the litigation, and the capacity to organize and manage information, are all critical to the defense of a client involved in mass tort litigation. V&E; is well-positioned to develop, coordinate, and execute all aspects of mass tort litigation.
Efficient Handling of Large Volumes of Data
At the outset, effective management of mass litigation requires the ability to organize, track, and retrieve large volumes of data, both in electronic and paper form. V&E; has developed sophisticated databases that permit customized handling of information in accordance with the needs of our client and to further the efficiency of our representation. We can create databases tailored to the particular litigation, and have previously done so in cases involving a pipeline catastrophe, pharmaceutical products, and automobile tires. On more than one occasion, our system has been proffered by our client as an example of how its litigation should be managed in other regions by other counsel. We also have the resources to organize and maintain large volumes of non-electronic data. In the transfer of hundreds of asbestos cases to V&E;, we systematically and efficiently absorbed large volumes of files and data from other law firms.
Team Approach to the Defense of Mass Litigation
V&E; has developed a team-based method for handling multiple individual cases as well as global issues, including discovery and preparation of factual evidence, expert evidence, written discovery and motion practice, administration of activity among teams and between national and local counsel, pretrial activity, and trial preparation and execution. The various members of our teams are veterans of mass tort litigation, and that gives us a perspective on mass litigation that can only come from experience. V&E;’s defense of mass litigation will involve first chair trial lawyers with track records in handling and trying mass litigation, other litigators familiar with factual development of cases in mass litigation, appellate specialists with experience spotting and analyzing key legal issues, and lawyers from other practice areas of the firm as needed for the particular litigation. V&E;’s teams will work seamlessly to provide a strong, coordinated defense of the litigation.
Contacts with Texas Counsel and Lawyers Outside Texas
Mass litigation is seldom confined to one venue, and as a result, mass litigation counsel must collaborate with counsel in other areas of the country. We partner with lawyers and litigation resources in all corners of the country, and our national practice and reputation enable us to make reliable contacts with premier local counsel. Our trial lawyers have considerable experience and knowledge in the selection of local counsel throughout the state of Texas, particularly in difficult venues.
Pretrial Coordination of Multi-District Mass Litigation and Class Actions
Pretrial coordination can be of real benefit to a mass tort defendant, and can greatly assist in managing mass litigation, particularly if undertaken in the beginning stages of the litigation. V&E; has extensive experience in successful pretrial coordination of multi-district litigation in both state and federal court. We have been at the forefront of pretrial coordination of cases in Texas under Rule 11 of the Texas Rules of Judicial Administration. Rule 11 allows for assignment of cases with common questions of fact and law to a single judge, on a region-by-region basis, for ruling on all pretrial matters. Most recently, as Texas counsel in tire litigation, V&E; lawyers achieved the first instance of de facto Rule 11 state-wide coordination of litigation in all judicial regions of Texas. We are also familiar with the new Texas multi-district litigation procedure enacted by the Texas Legislature in 2003 (effective September 1, 2003). The Texas MDL statute created a MDL panel with authority to transfer cases with common questions of fact and law to a single judge, creating the potential for true statewide coordination of mass litigation by one single judge in Texas. We have also handled multi-district coordination in federal court, pursuant to the federal MDL statute. We can initiate coordination proceedings under any of these procedural mechanisms, but coordination efforts do not end there. We will continue to monitor newly-filed cases to identify new candidates for coordination, and file appropriate motions to add new cases to the coordination effort throughout the pendency of the litigation. V&E; will also work to implement a litigation-wide case management order and other orders so that the parties are operating under identical timelines and guidelines for all the cases. In the Texas tire litigation, for example, V&E; led the effort to implement a single case management order governing all tire cases coordinated in Texas, as well as a litigation-wide protective order and other orders.
Class Action Issues
Vinson & Elkins handles class action litigation in state and federal court. Our trial lawyers have defeated certification of mass tort plaintiff classes in both product liability and toxic exposure cases. We have successfully prosecuted contested fairness hearings in Texas, Florida, Oregon, and Tennessee for the settlement of class actions involving product liability and toxic exposure claims.
Early Development of Themes and Discovery
Strong defense of mass litigation begins with development of litigation themes and of core company evidence, and for maximum effectiveness, this needs to occur early in the litigation — before much discovery has been sought from the defendant and before extensive briefing has occurred. V&E; will work toward developing themes and evidence early in the litigation, followed by dissemination of the strategy and core evidence to regional and local counsel. This will ensure that the defense of the client is a coordinated effort, and will assist in reducing the potential for inconsistent arguments and pleadings filed in the litigation.
Industry Knowledge
To defend mass litigation, it is important to understand the client’s business, and in product liability cases, to thoroughly understand the product at issue. Through mass litigation defense, we will become intricately knowledgeable about our clients’ businesses. Industries involved in our prior mass representations have included:
- chemical manufacturing
- tire design and manufacture
- pipeline design and operation
- drug research and development
- medical implant research and development
Scientific and Technical Evidence
V&E; trial lawyers recognize the importance of understanding and mastering the science that is critical to most mass tort cases. We have immersed ourselves in various areas of science involved in our prior mass litigations, including epidemiology, hydrology, toxicology, pharmacology, and air emissions. We have developed relationships with top experts in areas routinely involved in mass litigation, and maintain valuable relationships with experts in these disciplines.
Expert Challenges
Expert witness testimony is key in mass litigation and can significantly affect the outcome of the litigation. The qualifications of an expert witnesses and the reliability of an expert’s methodology are issues that must be closely examined, and challenged where appropriate. Our mass litigation lawyers have extensive experience and success in the identification, preparation, written briefing, and oral argument of challenges to expert witness qualifications and opinions.
Novel Causation and Damage Theories
Through our mass tort experience, we have gained significant familiarity defending the newer causation and damage theories. For example, claiming fear of future disease, plaintiffs in mass exposure cases increasingly seek from defendants the cost of medical monitoring, and property damage due to alleged stigma. We have contested and defeated these types of claims in catastrophic event as well as toxic emission scenarios.
Depth of Trial Counsel Experience
With large numbers of cases pending throughout the state or nation, a defendant in mass tort litigation often faces simultaneous or overlapping trial settings. V& E is equipped to handle this eventuality, having more than ten senior partners with extensive first-chair trial expertise and mid- and junior-level partners with significant first- and second-chair experience.
Appellate Expertise
Appellate specialists will be involved in V&E; mass litigation defense from the initial stages. Identifying and analyzing key legal issues at the beginning of the litigation and formulating a strategy to resolve those issues at the proper time and in the proper forum is critical to successfully managing mass litigation. Appellate involvement will continue through pretrial preparation of the case, error preservation at trial, preparation of the jury charge and presentation of jury charge objections, post-verdict briefing in the trial court, and appellate briefing and argument. Appellate lawyers are also involved in analyzing potential mandamus issues and prosecuting mandamus actions affecting either a single case or the litigation as a whole. In mass litigation, we have successfully prosecuted and contested mandamus actions involving issues of trade secrets, ex parte contact with treating physicians, and a trial court’s discretion in restricting discovery in multi-plaintiff actions.
Parallel Proceedings
Circumstances giving rise to mass tort litigation can involve parallel proceedings in the form of regulatory agency investigations and threatened or asserted criminal actions against a defendant or its employees. We have coordinated the defense of civil litigation with simultaneous investigations and/or proceedings by the United States Coast Guard, the National Transportation Safety Board, the Department of Transportation Office of Pipeline Safety, the Texas Railroad Commission, the Environmental Protection Agency, the Federal Bureau of Investigation, the Texas Commission on Environmental Quality (TCEQ), a number of state Attorneys General, and the United States Attorneys.
Litigation Involving Foreign Plaintiffs
V&E; trial and appellate lawyers have significant experience handling the unique issues presented when a non-U.S. resident files suit in the United States, such as challenges to the forum, choice of law, and issues relating to discovery outside the United States. In tire and dibromochloropropane litigation in particular, we have had success in prosecuting motions to dismiss on grounds of forum non conveniens on behalf of clients sued in Texas by non-U.S. residents for accidents or occurrences in their home countries. We are also experienced in preparing motions for application of foreign law to cases filed in the United States, which includes working closely with foreign law experts to understand comparative law and preparing affidavits in support of such motions. In addition, we are knowledgeable in the procedures required for conducting discovery and serving process in non-U.S. venues pursuant to the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters and the Inter-American Convention on the Taking of Evidence Abroad.
Web-based Extranet Sites
In order to facilitate communication and coordination among tiers of counsel and between counsel and client, V&E; has successfully directed the institution and development of web-based extranet sites related to various mass litigations. For example, in one mass litigation, V&E; has two extranet websites to facilitate the litigation. Pursuant to court order, the first website is accessible by all counsel (plaintiffs’ and defendants’ counsel) and court personnel in cases assigned to Rule 11 Pretrial Judges in the coordinated litigation. This website contains a library of pleadings, discovery, and court orders relating to the litigation, as well as a deposition and trial calendar for all coordinated cases, and a section for breaking news bulletins. With this website, all parties have immediate access to documents relevant to the litigation, and can keep abreast of court rulings and scheduling issues relating to depositions and trials. The statewide trial calendar also helps prevent conflicting trial settings. The second website is accessible only to designated representatives of our client, members of our staff, and affiliated defense counsel in and outside Texas, and contains a variety of materials readily accessible to allow for more efficient and better coordination of the litigation. Creating an extranet website accessible to the client and affiliated counsel is a cost-effective means of collecting documents and information in an electronic form, and if used to its full advantage, can be an extremely efficient method of coordinating the defense.
Settlement Issues
The settlement of hundreds or thousands of claims can be quite complex in terms of strategy and eventual management of incumbent paperwork. Our databases provide critical support in the calculation of cost associated with particular settlement alternatives and risk analysis, and in the tracking activity related to settlement of each plaintiff or claim. V&E; lawyers and staff are well-versed in this aspect of mass tort litigation, having formulated, negotiated, and documented the settlement of thousands of claims in pipeline, asbestos, diet drug, tire, and toxic exposure matters.
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