Product Liability & Mass Tort

Weil represented Bovis Lend Lease, Inc. in the World Trade Center Disaster Site Litigation, a mass tort action in the U.S. District Court for the Southern District of New York. Weil played a lead role in the passage of legislation by the U.S. Congress to provide coverage for health care costs and compensation to 9/11 first responders, and to limit liability for Bovis and other construction management companies.

Weil represents CIT Group Inc., a lessor of rail cars, in connection with wrongful death and bankruptcy litigation in the United States and Canada arising out of a train derailment outside of Quebec, Canada. Weil recently succeeded in transferring more than a dozen wrongful death claims to the bankruptcy court in Maine overseeing the liquidation of the railroad operator.

Weil has successfully represented Dometic Corporation in a series of putative class actions in the Southern District of Florida alleging that the gas absorption refrigerators manufactured by Dometic for use in recreational vehicles and boats are defectively designed and manufactured. Plaintiffs in these cases have sought certification of a nationwide class of consumers, as well as a number of state sub-classes, consisting of all purchasers of the gas absorption refrigerators. In August 2017, the Court granted Dometic’s motion for summary judgment and dismissed the lead case in its entirety, holding that, among other things, the Plaintiffs had failed to establish that there is any “inherent defect that is manifest in all Dometic cooling units.” Subsequently, in a related consolidated set of cases that Dometic successfully transferred to the same court, in July 2019, the Court denied plaintiffs’ motion for class certification and dismissed the case in its entirety.

Weil serves as lead trial counsel for ExxonMobil in a number of disputes in state and federal courts relating to the use of MTBE as an additive in gasoline. The actions have been brought by various States, including New Hampshire, Vermont and New Jersey, seeking to recover for alleged groundwater contamination at sites throughout those states. Most recently, we won a significant victory before the Vermont Supreme Court on an interlocutory appeal by the State of Vermont in a case it commenced in 2014, approximately seven years after the State prohibited the use of MTBE in gasoline. In the lower court, Weil secured a partial victory in January 2015 on a motion to dismiss based on Vermont’s six-year statute of limitations for civil litigation, and the Vermont Supreme Court affirmed in May 2016.

Weil served as lead trial counsel for Johnson & Johnson in the mass tort talc litigation brought in New Jersey state court. After a four-week trial, Weil secured a complete defense jury verdict in October 2018. The plaintiff alleged that J&J’s baby powder contains asbestos and causes cancer. This lawsuit is one of many similar cases currently pending in courts around the United States, in which plaintiffs allege that the use of talcum powder caused lung cancer or ovarian cancer, but this is the first defense verdict for J&J in a talc case in New Jersey courts. The American Lawyer awarded Weil lead trial partner Diane Sullivan “Litigator of the Week” honors for securing the verdict. Law360 also highlighted the win as a landmark victory of 2018. CVN showcased the win as the most impressive defense verdict of the year.

Weil subsequently served as co-lead trial counsel for Johnson & Johnson in a similar case in New Jersey state court alleging that exposure to asbestos in J&J’s baby powder contributed to him developing cancer. Following four weeks of trial, in March 2019, the jury returned a unanimous, 6-0 verdict after deliberating for less than 25 minutes. As a result of the victory, Weil was named a “Legal Lion” by Law360.

Following closely on the heels of this victory, in May 2019 Weil served as lead trial counsel in a separate lawsuit in the mass tort talc litigation in South Carolina state court alleging that exposure to asbestos in J&J’s baby powder contributed to the plaintiff developing a rare form of cancer. Following one week of trial, the jury returned a unanimous, 12-0 verdict in favor of J&J on every question.

Weil represented Nortek Global HVAC LLC (NGHL), a subsidiary of Nortek and a leading manufacturer of heating, ventilation, and air conditioning (HVAC) systems, as lead counsel in defense of putative state and nationwide consumer class actions pending in Florida and Tennessee federal courts. Plaintiffs are purchasers of residential HVAC systems manufactured, distributed and sold by NGHL that allegedly contained defective copper evaporator coils. In 2016, Weil defeated plaintiffs’ motion to certify a class in the Florida case, as well as won a motion to dismiss with prejudice in the Tennessee case.

Weil secured a complete defense verdict for Philip Morris USA in a class action tried to a jury in Boston federal court. The plaintiffs brought a medical monitoring class action on behalf of allegedly over 30,000 Massachusetts smokers who smoked Marlboro cigarettes, seeking to have Philip Morris USA fund a screening program for the early detection of lung cancer. Plaintiffs sought a comprehensive program that would have included yearly low-dose CT scans, which are now the standard of care for the early detection of lung cancer for certain patients. Plaintiffs’ legal theory was design defect, alleging that our client could have made a safer cigarette that would have decreased their risk of subcellular injuries caused by smoking. Originally filed in 2006, the case was certified as a class action in 2010. Weil was brought in as lead trial counsel in 2012. After 10 years of litigation and three-week jury trial, our client won a unanimous verdict on the first question on the verdict sheet – Marlboro cigarettes are not defective and unreasonably dangerous. Subsequently, based on the record at trial, the judge entered judgment in favor of Philip Morris on the remaining claim – an unfair trade practices claim which would have led to treble damages, or over $600 million in damages plus attorney fees.

Weil successfully represented Procter & Gamble (P&G) as lead counsel in a high-profile MDL in U.S. District Court for the Southern District of Florida in which plaintiffs allege that they were injured through their use of the popular denture cream, Fixodent. Specifically, plaintiffs allege that zinc contained in the denture creams manufactured by P&G and others caused neurological problems. Plaintiffs filed numerous Florida state law claims, including strict product liability, negligence, intentional misrepresentation, breach of express warranty, implied warranty, and violation of Florida’s Deceptive and Unfair Trade Practices Act. In 2014, Weil won a significant victory before the Eleventh Circuit that affirmed the trial court’s Daubert and summary judgment orders in the lead case, which excluded plaintiffs’ expert testimony and resultantly found that plaintiffs could not sustain their burden of proof. While the Chapman case was on appeal, the remaining plaintiffs in MDL 2051 were granted an opportunity to proffer new experts and any new science in support of their causation theory. P&G again challenged plaintiffs’ new experts and purported new science through the submission of additional Daubert motions. In January 2015, the trial court granted P&G’s motion to exclude all of the plaintiffs’ general causation experts, a decision that led to the dismissal with prejudice of 62 plaintiffs’ complaints in April 2015.  In June 2016, the Eleventh Circuit once again affirmed the trial court’s Daubert order and orders of dismissal. Plaintiffs’ petition for certiorari to the U.S. Supreme Court was denied on October 25, 2016. P&G then moved for summary judgment in approximately six cases in which plaintiffs argued that they were not subject to the district court’s Daubert ruling. The district court granted summary judgment in all of these cases, bringing seven years of litigation to a close on October 25, 2016.The Eleventh Circuit dismissed subsequent appeals by five of these six plaintiffs in November 2016 and January 2017.

Weil also served as lead trial counsel for P&G in a consumer fraud class action in federal court in Ohio. Prior to our retention, the five-state class of purchasers of P&G’s best-selling probiotic dietary supplement, Align, had been certified, and subsequently upheld by the Sixth Circuit. Plaintiffs alleged that P&G’s marketing of Align was misleading, and sought a full refund, with total damages totaling hundreds of millions of dollars. In early October 2017, on the eve of trial, P&G was able to settle the seven-year litigation on very favorable terms.

Weil serves as lead trial counsel for Spanish energy company Repsol in litigation that involves allegedly billions of dollars of liabilities in connection with pollution of the Passaic River in New Jersey, which was dismissed in its entirety on summary judgement on the eve of trial. After a series of settlements between the parties and the state in 2013 and 2014, the Weil team achieved a number of important victories. First, in a February 2015 order granting Repsol’s motion to dismiss, Weil eliminated nine of OCC’s eleven cross claims, leaving only OCC’s claims for recovery based on an alter ego theory of contract liability. Second, in a series of January 2016 recommendations from the Special Master granting Repsol’s motion for summary judgment and denying OCC’s summary judgment motion, Weil eliminated OCC’s remaining claims for recovery based on alter ego and retained its counterclaim under the New Jersey Spill Act against OCC for recovery of the $65 million Repsol paid in clean-up costs in its settlement with the state departments. Those recommendations were entered in toto by the New Jersey Superior Court after several days of oral argument in April 2016. The court agreed with our argument and interpretation of alter ego law, finding OCC could not, as it argued, pierce the veil directly to Repsol. Instead, under its theory of alter ego liability, which included claims against several entities in a multi-layered corporate chain, OCC was required by law to pierce the veil of each intervening corporate entity in that chain. Weil was successful in presenting a number of reasons why OCC could not meet this legal requirement, including OCC’s failure to link any domination by Repsol to its alleged harm, as well as the existence of a solvent entity that stood as an insurmountable barrier between Maxus and Repsol that was able to pay for any obligation allegedly owed to OCC, thereby eliminating any potential of harm or injustice. All claims against Repsol have been resolved, and the court allowed Repsol to pursue its counterclaim against OCC for recovery of the $65 million in clean-up costs it paid in settling with the New Jersey state departments, which was set for trial in June 2016. On the eve of trial, Maxus Energy Corp. filed for bankruptcy. In October 2017, the Superior Court of New Jersey adopted the recommendation of the Special Master and granted Respol’s motion for summary judgment to recover the $65 million from OCC, thereby bringing nearly a decade of litigation to a successful close.

Weil secured the dismissal of a high-profile consumer class action in which Plaintiffs alleged that Starbucks stores throughout Manhattan – the Company’s largest market in the U.S. – have for many years been permeated with a toxic pesticide called Dichlorvos, contradicting their marketing claims that their products are prepared in a safe and natural environment. The plaintiffs sought to represent all individuals who purchased a product in the last three years from a Starbucks location in Manhattan that was using the pesticide.

Weil served as lead counsel overseeing the defense of Toyobo, a major Japanese fiber manufacturer, in connection with False Claims Act litigation brought by the U.S. DOJ, class action litigation, multiple personal injury suits, and claims by multiple state attorneys general and foreign states, among others, relating to the performance of Toyobo’s Zylon fiber in bullet-resistant vests used by thousands of law enforcement agencies worldwide. In 2018, Weil negotiated a settlement of all remaining claims after securing a number of successful outcomes in the various lawsuits.

Weil represented Walgreens Boots Alliance, Inc., operator of the nationwide drugstore chain, in several high-profile consumer class actions filed against it and Theranos, Inc. The complaints allege that Theranos’ finger-stick blood tests, which used its proprietary “Edison” blood-testing device, were inaccurate, placing tens of thousands of customers at risk for incorrect medical diagnosis and/or testing. Walgreens and Theranos moved to dismiss plaintiffs’ complaint. In June 2017, U.S. District Judge H. Russel Holland dismissed the majority of plaintiffs’ claims, allowing plaintiffs to amend some, but not all, of the claims. Among the claims dismissed with prejudice were claims all claims asserting that Walgreens is jointly and severally liable with Theranos. Plaintiffs sought reconsideration of this ruling, which the court denied. Subsequently, Weil secured a settlement for Walgreens from Theranos that mitigated Walgreens’ exposure.