Editor’s Note: This is one in a continuing series of Q&As with Locke Lord lawyers on key legal issues confronting companies engaged in industries that have national and global impact.
What is the key to succeeding for a client in a complex products liability or toxic tort matter?
JT: It’s all in the ‘C’s.’ Command of the facts, command of the law, command of the science, command of the courtroom and credibility. You need to understand in depth the facts that gave rise to the claim or claims. That means getting out ahead of the problem quickly—investigating what happened and pinning that down as quickly as possible through interviews of key witnesses and gathering physical evidence. With regard to science, you need to work with the best in class. We have developed relationships over the years with some of the leading medical, science and other experts in just about every field imaginable. Those relationships are invaluable to providing your client the best defense possible. At the end of the day, all of this is meaningless if you don’t have credibility and a command of the courtroom. You have to be the person that the judge and jury looks to when they want the truth. I was fortunate enough to have that role in the World Trade Center Disaster Site Litigation where I and my team defended the City of New York and its 150 contractors in the In re World Trade Center Disaster Site Litigation against more than 10,000 lawsuits alleging respiratory and other injuries arising from the cleanup of the WTC site following the September 11th attacks. I was not only lead counsel for my clients but was appointed liaison counsel for all defendants by the judge presiding over those suits. Without credibility, the judge never would have been able to place that level of trust in me or my team.
From your experience, what has kept the Products Liability and Toxic Tort practice area so active over the years?
JT: Every time a pharmaceutical or a medical company introduces a new drug or device into the marketplace, there will be a plaintiff’s lawyer waiting for a recall so that he or she can pounce on the opportunity. Combine the financial motivation of the plaintiff’s lawyers with people who truly believe they were injured through the acts of corporate America, and the ability to spread that information to millions of people every day, and the result is a multitude of products liability and toxic torts cases.
Looking into your crystal ball, what shape will the Products Liability and Toxic Tort arena look like in 10, 20 years? What are the forces — legal and otherwise — that are shaping it now and will continue to shape it in the years to come?
JT: Lawsuits over allegedly defective products and exposure to purportedly toxic substances likely will increase over time. Tort reform on a state and federal level often is bandied about and, to varying degrees, has been adopted, most commonly by way of limitations on damages. Much of those limitations have taken place in the medical malpractice arena. The plaintiffs’ bar involved in large scale products liability and toxic tort matters are well-organized and well-funded. They will fight hard to block similar types of reform that affect their business. It is inevitable that as leaps and bounds are made in the pharmaceutical, chemical and technological fields, people will be injured and will believe — right or wrong — that their injuries were caused by a company’s introduction of an unsafe product into the marketplace. Very simply, so long as there are juries and plaintiff’s lawyers, there will be an active products liability and toxic torts practice — for both plaintiff’s and defense attorneys.