Winston & Strawn LLP held its second-annual Product & Mass Torts Summit on June 7. The Summit harnessed the collective experience of Winston’s Product Liability & Mass Torts group as well as esteemed in-house counsel guest speakers to explore effective strategies to capitalize on the changing legal landscape and combat common plaintiff tactics. The Summit included six panels spanning topics on understanding regulation and compliance changes, developing scientific and epidemiological defenses, managing plaintiff maneuvers in MDLs, preparing corporate witnesses for trial, maximizing appellate success, and understanding how outside counsel can partner with clients to defend against mass torts litigation. In case you missed it, below are our key takeaways from the Summit.
How EPA, FDA, and Federal Regulation Drive Mass Tort Litigation
Federal regulatory agencies, such as the EPA and FDA, are assessing the health and safety risks associated with chemicals and products in many commonly used industrial, consumer, and food applications. These assessments are generating private-party mass tort and product liability litigation. Companies should understand what these agencies are doing, how proposed changes may impact them, and what steps to take to minimize and mitigate mass tort and product liability exposure.
Challenges and Opportunities in Developing a Scientific Defense to Causation
Epidemiological evidence typically plays an important role in product liability and toxic tort proceedings. Properly analyzing the strengths and weaknesses of relevant epidemiological evidence is therefore a key aspect of asserting a robust causation defense.
Strategies for Addressing Plaintiff Evolving Tactics in MDLs: Public Nuisance and Beyond
Plaintiffs seek to extract settlements from defendants by filing a large number of cases where there are low barriers to entry. Defense counsel should look for opportunities to point out plaintiffs’ weaknesses, ensure credibility with the court, and communicate frequently with their clients to define success in a challenging landscape.
Preparing and Presenting Corporate Witnesses at Trial
Properly preparing and presenting corporate witnesses for trial is critical to successfully defending the corporate client. This requires ensuring enough time is set aside in advance to thoroughly prepare the witness by mock direct and cross-examinations based on the key facts, documents, deposition testimony, and other relevant trial issues.
Appeals and Critical Motions: Laying the Groundwork for a Successful Outcome
To maximize the chances of ultimately succeeding on appeal, it is essential that one identify and preserve legal issues from the very outset of litigation. One way to do that is to have appellate attorneys work with trial attorneys to draft dispositive motions, motions in limine, and proposed jury instructions.
The Realities of Mass Torts: In-House Perspectives
The responsibilities of in-house counsel for product liability and mass tort litigation go far beyond supervising wins and losses in the courtroom and extend to partnering with the business to defend against brand attacks, crisis management, media and public relations activities, enlisting third-party allies in a global defense, and considering the impact of litigation on regulators and the business. Our distinguished in-house panel explained how the best outside counsel will be a strategic and business partner advising on all these aspects of mass torts litigation.