National Coordinating Counsel

Representative Matters

Benzene, Solvents, and Welding Fumes

• Class I Freight Railroad Diesel, Benzene and Solvent Litigation. Crowell & Moring was retained by a Class I Freight Railroad as NCC for litigation arising out of alleged exposure to benzene and several other chemical substances, including cases arising under the Federal Employers Liability Act (FELA), state-law-based tort claims, and class actions. Our representation includes advising the Class I Freight Railroad on its overall litigation strategy, developing its expert case, coordinating discovery, monitoring legal and scientific developments, briefing key legal issues such as removal and class certification, and preparing dispositive motions. We also served as counsel of record in a FELA medical monitoring class action case filed in a Florida state court, two environmental exposure cases pending in Florida and Michigan courts, and a class action suit filed in an Illinois state court. We successfully represented the Railroad in a putative class action filed in New Orleans, which involved a residential evacuation resulting from a leaking tank car. In a FELA case brought in West Virginia state court by former railroad workers who alleged that they suffered neurological injuries stemming from exposure to chlorinated solvents, we represented the Railroad in a four-day Daubert hearing.  Our flexible approach to coordinating these dockets has allowed us to tailor our response—and involvement—to each particular litigation, maximizing our effectiveness as well as that of the client's network of local counsel. 
• Welding Fumes Litigation. We served as NCC for a Fortune 100 construction and engine manufacturer in welding fume litigation involving thousands of individual and class action suits filed in both federal and state courts from Pennsylvania to California. Plaintiffs in these cases typically asserted claims against manufacturers and sellers of welding consumables (such as welding rods), alleging actual or potential neurological injury as a result of exposure to components of welding fumes. Plaintiffs sued the company for its involvement in an alleged conspiracy with a trade association to conceal the potential dangers of exposure to welding fumes. The Crowell & Moring team achieved numerous successes on motions to dismiss in individual cases, culminating in a global summary judgment order from the MDL court dismissing all claims against the company in every pending federal lawsuit.  In addition, one of our partners served as national coordinating and trial counsel in this MDL for another company charged by plaintiffs with a civil conspiracy to conceal and suppress historical knowledge about the purported link between welding fumes and disease, ultimately obtaining summary judgment and dismissal from all MDL cases. That attorney also served in an identical capacity for the company in its national asbestos and silica litigation.

Asbestos

• Multinational Telecommunications Company Litigation. We have served as national coordinating and trial counsel to a Fortune 100 multinational telecommunications company in asbestos litigation since 2008. In the past eight years, we have managed asbestos cases for the company's entities in more than 25 states. In collaboration with our client, we have built a network of state counsel and identified and prepared a new team of industrial hygiene, state-of-the-art and medical experts, in addition to corporate designee witnesses on a variety of topics. Because of the size and complexity of the company, we have defended the company against a number of novel parent company and successor liability claims (in addition to more traditional premises liability claims), such as "assumption of duty" and "direct participant" liability. In our capacity as coordinating counsel, we manage strategic issues, investigate historical products and work practices, coordinate all discovery responses, prepare or oversee the preparation of all significant motions, take or defend many of the key expert and fact witness depositions, and serve as co-trial counsel.
• Heavy Equipment Manufacturer Litigation. We have represented this Fortune 100 manufacturer and its related entities since 2002 as national coordinating and strategic counsel for the company's asbestos litigation, including premises matters.  We assist the company in developing long-term strategy, managing a stable of "national experts" for use across the country, and working with the company's regional counsel to implement trial and motions strategy. Our strategic effort has focused in part on defeating the "any exposure" theory plaintiffs use to support current litigation; our successes include the first ruling excluding well-known plaintiff expert Dr. Sam Hammar in 2007. We have pursued other plaintiff experts aggressively, and we know the law and defenses needed to litigate the spontaneous mesothelioma, take-home, and incidental exposure cases that dominate today's docket.
• Chemical Company Litigation. Since 1992, we have served as NCC for a major chemical company in its asbestos litigation. The bulk of the cases involve premises liability claims by employees of contractors that worked on the company's sites, although we also handle a number of product liability claims. The cases are filed largely in state court in nearly 20 states and litigated as individual cases or, in some instances, as large consolidations. As national counsel, we are responsible for developing long-term national strategy, overseeing a large network of firms, and serving in a lead, co-trial counsel role.  We are also responsible for identifying and preparing experts, developing legal issues (including sophisticated motions and appellate practice), managing discovery, conducting factual investigations and fact witness development, and developing trial strategy. Over the years the company has tried 15 cases, and has won seven defense verdicts, with dismissals during trial in four cases.

Groundwater Contamination and Air Emissions

• Hazardous Material Site Litigation. Together with Louisville co-counsel, we defended thousands of claims brought by workers and neighbors at a Superfund site in southeastern Kentucky over the course of 17 years.  After a month-long jury trial, the team won a defense verdict against three coal mining companies that sought $140 million in lost profits as a result of their proximity to the site. The National Law Journal recognized the victory in its annual list of the country's top defense verdicts. The next year, the team defended bellwether claims of multiple myeloma, childhood leukemia, and other illnesses in a 52-day jury trial that led to a mass settlement of more than 550 plaintiffs' cases.  Later, they won a week-long arbitration of a tort of outrageous conduct action, achieved decertification of a state court class action, and, in another bellwether plaintiffs' case, won summary judgment after excluding all of the causation experts under Daubert. In addition to successfully litigating claims, the team also assisted in settling claims, which included setting up a process to allocate a settlement fund. Under this process, pre-determined criteria were used to create a matrix to value claims. The criteria selected ensured that settlement funds were appropriately allocated.
• Tallevast Litigation. We represented a leading defense contractor in five high-profile lawsuits in state and federal court in Florida involving groundwater contamination with chlorinated solvents and occupational and environmental exposure to beryllium. In two cases, more than 300 plaintiffs asserted personal injury, emotional distress, and diminution of property values as a result of alleged exposure to groundwater contaminated with TCE, vinyl chloride, and 1,4-dioxane. Related cases sought damages for chronic beryllium disease from occupational, environmental, and "take-home" exposure, as well as medical monitoring for the neighboring community's alleged exposure to airborne beryllium. We defeated class certification in the medical monitoring case, after a four-day evidentiary hearing; that decision was affirmed on appeal and ultimately resulted in voluntary dismissal of the named plaintiffs' claims. In a related case that went to trial for 11 days before an administrative law judge, we successfully defended the client's site investigation and remediation plan against a challenge brought by a community group. That decision was recently affirmed per curiam on appeal. The site and the litigation were the subject of more than 550 articles in Florida newspapers, approaches to then-Governor Jeb Bush, and environmental justice claims to EPA Region 4.
• Gulf Coast Refinery Work. Working with a real estate appraisal firm, we assisted with a property buy-out plan to create a green space between the refinery and neighboring residents. The purchase of homes resolved class action claims for property devaluation allegedly caused by ground water contamination and air emissions. We have also defended claims alleging community exposures to chemicals as a result of refinery explosion releasing hydrofluoric acid.  The defense team tried a series of bellwether cases to defense verdicts and settled the remaining cases. In settling the cases, a fund was administered to over 10,000 people to settle personal injury and property damage claims. A claims administrator allocated the funds based on a predetermined formula after extensive negotiations with plaintiffs' counsel.
• Climate Change Litigation. Crowell & Moring led the defense effort on behalf of ten coal companies in the highly publicized global climate change litigation. Two appellate wins in 2013 crown the remarkable success in stopping this litigation. Crowell & Moring obtained one key appellate win in 2013 in the Comer v. Murphy Oil USA, Inc. litigation involving a group of Mississippi property owners. Those owners claimed that damages from Hurricane Katrina were caused by the greenhouse gas emissions of over 50 oil, energy, coal, and chemical companies. Crowell & Moring obtained dismissal on lack of standing and political question doctrine in the district court, and the case proceeded through years of appellate reviews, including in the U.S. Supreme Court, concluding when the Fifth Circuit upheld the district court's dismissal on res judicata grounds. In the other appellate win, the U.S. Supreme Court denied certiorari in an appeal by the plaintiffs, an Alaskan village, in Kivalina v. Exxon, on May 20, 2013. The village claimed that its loss of Arctic sea ice was caused by the greenhouse gas emissions of the defendant companies. After the district court granted a motion to dismiss on standing and political question grounds, the Ninth Circuit affirmed the dismissal in 2012. 

Products Liability

• Fungicide Litigation and Claims. Crowell & Moring handled a 10-year birth defect litigation involving allegations of serious eye defects and other conditions from use of a home fungicide product.  We litigated multinational (England, Wales, Scotland, New Zealand) cases through full discovery and ultimately prevailed on Daubert motions in two courts. In addition to successfully handling the birth defect litigation, Crowell & Moring helped develop a settlement claims process to resolve blocks of cases in the related crop litigation.  Crowell & Moring valued the crop litigation claims based on a pre-determined matrix of damage categories.
• Plumbing Litigation. We represent a Fortune 100 chemical company in national litigation attacking plumbing products. The litigation spans over 20 years in both state and federal courts and at all appellate levels, including the U.S. Supreme Court, and in the lower and appellate courts of Canada and the U.S. Virgin Islands. These cases include multi-plaintiff actions, as well as attempted national, statewide, and province-wide class actions. We provide national strategy, class action strategy, coordination of all discovery (including the management and production of over two million documents) and management of a network of local firms. We defeated class certification in two attempted national class actions and obtained full faith and credit in a statewide collateral attack on the company's earlier national class settlement, which was upheld on appeal. A claims process was developed early on before class actions were brought, which resulted in the settlement of hundreds of thousands of claims. The claims process would evaluate each claim and, if it met the criteria, offer retrofitting and/or compensation. After a national class action settlement in the United States, we coordinated the administration of a national class settlement claims facility. After a national and two province-wide settlements in Canada, we coordinated the administration of the Canadian settlement claims facility.
• iPhone/iPad Litigation. We have represented a multinational telecommunications provider in various consumer class actions, including two MDL proceedings, with allegations ranging from product defects, to marketing misrepresentations about service features, data plans, product performance, and improper billing practices. Many of these cases include claims under state consumer protection laws, including CLRA and unfair competition law (§ 17200 and 17500). In the original "3G" MDL filed in the Northern District of California, we defended against claims arising from the advertisement of the company's network as "twice as fast" in connection with the introduction of the first iPhone. In the multimedia messaging service (MMS) cases, we defended against claims arising from the advertisement of the availability of the MMS feature on iPhones. In cases involving claims about the iPhone 4 antennas, we steered the cases to an MDL centralizing over a dozen putative consumer class action cases, and achieved voluntary dismissals for the company.  

Health Care and Pharmaceuticals

• Antitrust Class Action Attack on Blue Cross Blue Shield System. Crowell & Moring represents eight Blue Cross Blue Shield companies in an antitrust MDL proceeding centralizing over 20 class action cases across the country. The MDL class action cases are brought by physicians and other health care providers as well as plan members asserting claims that the Blue Cross Blue Shield association and the companies conspired to violate antitrust laws by limiting competition through exclusive service areas and other restraints. The cases are centralized in the U.S. District Court for the Northern District of Alabama.
• Medicaid Overpayment Actions. Served as lead trial and national coordinating counsel for a major international generic pharmaceutical company in nationwide federal and state court litigation against the industry, alleging Medicaid overpayments for prescription drug reimbursements. Crowell & Moring coordinated litigation in 15 states. We were selected as lead trial counsel about five months before a three-week jury trial in Texas against the Texas Attorney General's office. The case resulted in a verdict for plaintiffs but the defense case was sufficiently strong that plaintiffs settled for significantly less than initial settlement demand while appeal was pending. The strong trial performance in Texas led to very favorable settlements in the remaining 14 states.
• Medical Device Hip Implant Litigation. Crowell & Moring represents a manufacturer of a metal-on-metal hip implant system against claims and lawsuits in the U.S. By using the product's regulatory approval, strong performance and the statutory protection afforded to certain medical device manufacturers, we have built a successful national defense strategy that, to date, has protected the company from any liability in the United States.
• Pharmaceutical Consumer Fraud Class Actions. The firm's product liability and torts attorneys represented one of the principal defendants, a medical association, in a highly publicized series of class actions alleging fraud in developing criteria for the diagnosis of a childhood mental disorder (ADHD) and the marketing of a pharmaceutical as the treatment. The litigation consisted of five class actions pending in five state or federal courts, variously alleging state or national classes of up to six million pharmaceutical users and their families. As NCC in the five class actions, we focused on a series of early-strike dismissal motions designed to attack the legal sufficiency of plaintiffs' complaints. We were successful in securing the dismissal of all five class actions.

Advertising and Marketing

• Food Manufacturer Advertising Litigation. Crowell & Moring represents a food manufacturer in defending several lawsuits related to the advertising of their products. One suit brought by the National Consumers League, a consumer advocacy organization, is currently ending in the District of Columbia. The case alleges deceptive and improper marketing practices with respect to the whole wheat content of certain products in order to deceive consumers and drive up sales. The second case, a class action recently filed in California state court, makes similar claims regarding wheat content and also alleges the products were marketed as "All Natural" and contained artificial ingredients. We serve as lead counsel on the cases.
• "Hackability" Litigation. In a case at the intersection of cybersecurity and product liability, our Crowell & Moring lawyers won dismissal of a nationwide class action alleging that computerized hotel locks were vulnerable to hacking and were therefore defective and in breach of warranty. Crowell & Moring also represents a major automobile manufacturer in a lawsuit alleging that a defect exists in motor vehicles because the vehicles are purportedly "susceptible" to being "hacked." Five consumer plaintiffs filed the putative class action lawsuit under California, Washington, and Oregon law, asserting consumer protection, false advertising, fraudulent concealment, warranty, and invasion of privacy claims.