Toxic Torts

Toxic tort claims are on the rise as an aggressive crop of plaintiffs’ attorneys develop novel approaches that pose risks even to companies that comply with all laws and regulations. Protecting yourself from claims of illegal conduct is a key concern for many American businesses today, and from both a legal and public relations standpoint, toxic tort cases pose a serious threat to your organization and its officers. Alston & Bird’s Toxic Tort Team has the necessary tools and experience to ensure that your business isn’t the next casualty in the toxic tort wars.

Through careful monitoring and assessment of regulatory and legislative activity, we help you anticipate and prepare for a toxic tort litigation risk. By watching similar cases, the media’s response to high-profile litigation, and the work of the plaintiffs’ bar and related activist and public health groups, we glean important insight about the ways the legal ground is shifting. When a case is filed, we are able to make determinations based on this data to create the best and most far-reaching strategies while addressing questions like whether to include public relations experts, which arguments to test with jury research consultants, and how to properly prepare you for likely outcomes in the case.

We have represented clients, including Fortune 500 companies, across the U.S. as trial counsel, national and regional coordinating counsel, and appellate counsel. Toxic tort cases span a spectrum of claims, and we’ve handled defense of air, ground, and drinking water contamination litigation, citizen suits, class actions, and government enforcement, as well as complex environmental, toxic exposure, and products liability litigation before federal and state courts.

By bringing together leading legal minds from a range of disciplines, Alston & Bird provides comprehensive, responsive legal defense to companies of all sizes in high-stakes toxic tort litigation.

Asbestos Litigation

• Serving on the national trial team for a Fortune 50 chemical company in the defense of its asbestos matters. We have tried cases in a number of jurisdictions around the country, where we lead virtual trial teams comprised of lawyers from top-tier national and local firms. For this same client, we act as regional counsel, supervising local counsel in the management of dockets comprising hundreds to thousands of cases; and we serve as local counsel in Georgia.
• Serving as co-national counsel to a major auto parts supplier of friction products in its asbestos litigation. In that capacity, we also serve on the national trial team and manage local counsel nationwide.

Chemical Exposure Cases

• Served on the trial team in an ecological toxic tort lawsuit against Lockheed Martin involving more than 800 plaintiffs who claimed personal injuries and property damage from alleged exposure to chemicals in drinking water. The first group of 50 plaintiffs was litigated to a dismissal of all claims, following the exclusion of the plaintiffs’ medical experts. The remaining cases were later settled on terms favorable to the client. In re Redlands Tort Litigation.
• Represented Lockheed Martin in federal and state litigation involving alleged community exposure to contaminants released into the air and groundwater during 50 years of aircraft manufacture at the Burbank Skunk Works and related facilities. The cases settled for nominal amounts (less than plaintiff counsel’s hard costs). In re Burbank Environmental Litigation.
• Following the largest fish kill in Georgia history in 2011, we represented the only industrial discharger on the river in defense of hundreds of property damage claims alleging ammonia, formaldehyde and other chemical contamination. Our litigation strategy included removal of a putative class action to federal court, motions practice in a related Clean Water Act citizen’s suit brought by a local environmental organization, and successful settlements with the majority of claimants.
• Defended more than 1,000 personal injury claims in Birmingham, Alabama, and elsewhere, related to alleged exposure to various isocyanate products in the coal mining industry.
• Defended a public power entity in mass tort litigation involving more than 150 plaintiffs who live in the vicinity of the client’s coal-fired power plant and who assert personal injuries and property damage allegedly caused by air emissions and groundwater contamination.
• Defended a major defense contractor against 270 toxic tort claims based on historical rocket-testing and present-day groundwater contamination. Obtained a successful resolution and de minimis settlement after demonstration of fate and transport, and statute of limitation issues.
• Successfully resolved 900 plaintiff air contamination toxic tort cases for an oil refinery after obtaining dismissals of all but 78 plaintiffs.
• Counseled a leading engineering and architectural firm in the defense of mass tort litigation brought by more than 400 plaintiffs stemming from an alleged historical contamination at a petroleum tank farm facility.
• Represented a major aerospace client in toxic tort actions brought by more than 300 plaintiffs claiming exposure to contaminated drinking water supplies. Through demurrers, motions to dismiss and aggressive discovery, we reduced the plaintiff pool to less than 30 before settling the case on favorable terms.
• Defended a national building products company in a mass tort action brought by more than 1,300 plaintiffs in nine lawsuits alleging personal injury claims caused by air and surface water emissions from a former wood treatment site. The principal chemicals of concern are dioxin, arsenic, creosote and chromium, which allegedly resulted in cancers, birth defects and other diseases. We obtained a significant early victory with the successful removal of all of the cases to federal court on fraudulent joinder grounds and successfully settled all claims in a two-day mediation following the close of fact discovery for less than ten percent of plaintiffs’ pre-litigation demand.
• Representing a major manufacturing client on a confidential basis in preparing defenses to a putative class action for personal injury and property damage caused by alleged air emissions of dioxin, arsenic and other metals, dating as far back as three decades. We have worked closely with the client in retaining national experts on dioxin and arsenic, as well as developing a community relations program to erode public support for the lawsuit.
• Served as lead Daubert counsel on behalf of ConocoPhillips and General Atomics to challenge claims that exposure to natural uranium ore dust caused 18 different types of cancers among 53 plaintiffs in Texas. Our briefing and argument at the Daubert hearing resulted in the exclusion of the plaintiffs’ epidemiologist and summary judgment for defendants.
• Our toxic tort attorneys formulated a unique strategy resulting in the removal of a putative class action of more than 5,000 personal injury and property damage claims for the alleged release of lead and other toxins to federal court and obtained a successful order from the Eleventh Circuit affirming removal in the first published Court of Appeals opinion to interpret the “local controversy” exception in the Class Action Fairness Act.
• Represented a national manufacturer in three lawsuits filed in San Francisco Superior Court concerning alleged perchloroethylene (PCE) contamination in the soil, sewer system and drinking water supplies in California. The plaintiffs collectively sought $150 million in damages. Based on our experts’ reports and testimony, we resolved the matter on very favorable terms for less than one percent of the damages sought.

Daubert Victories

• Uranium Exposure: Cano v. Everest Minerals Corp., et al., No. SA-01-CA-610-XR (W.D. Tex.); excluded the plaintiffs’ epidemiologist and obtained summary judgment in a case alleging cancer was caused by uranium exposure.
• Airborne Exposure: Alvarez v. Sequoyah Fuels Corp., No. CJ-94-230, District Court in and for Muskogee County, Oklahoma; excluded expert testimony that airborne nitrogen fertilizer caused skin cancer.
• Cell Phones: Newman v. Motorola, Inc., 218 F. Supp. 2d. 769 (D. Md.), aff’d 78 Fed. Appx. 292 (4th Cir); complete Daubert victory resulting in the exclusion of six experts who asserted that nonionizing radiation emitted by cell phones caused brain cancer.
• Diesel Exhaust: Missouri Pacific RR Co. v. Navarro, 90 S.W.3d 747 (Tex. Ct. App.); reversed admission of expert testimony that diesel exhaust caused cancer and rendered judgment for defendants.