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OVERVIEW

Joseph G. Eaton
Partner

Indianapolis

11 South Meridian Street
Indianapolis, IN 46204-3535

P 317-231-7705

F 317-231-7433

OVERVIEW

Joseph G. Eaton
Partner

Indianapolis

11 South Meridian Street
Indianapolis, IN 46204-3535

P 317-231-7705

F 317-231-7433

Joseph G. Eaton is a partner in the Indianapolis office of Barnes & Thornburg and co-chair of the firm's Toxic Tort Practice Group.

OVERVIEW

Joseph G. Eaton Partner

Indianapolis

11 South Meridian Street
Indianapolis, IN 46204-3535

P : 317-231-7705

Joseph G. Eaton is a partner in the Indianapolis office of Barnes & Thornburg and co-chair of the firm's Toxic Tort Practice Group.

Product Liability: Toxic Tort, Chemical Product Liability and Environmental Litigation

Joseph has represented clients in litigated matters throughout the United States involving chemical product liability actions, including plaintiffs' personal injury and property damage litigation relating to alleged toxic products. He presently assists several national defense counsel teams representing industrial, chemical and pesticide manufacturers in toxic tort and chemical product liability claims across the country. He also assists other clients in chemical product liability actions, in which capacity he has litigated in more than 35 state and federal courts. His court appearances include challenges to expert testimony and Daubert and Frye hearings.

Joseph also represents clients in environmental exposure and contamination matters, including cases arising under federal and state environmental statutes.

Joseph regularly advises clients regarding recent developments involving the exclusion of expert witnesses under state and federal standards. Joseph is a frequent speaker at local and national seminars on issues relating to expert witnesses and is currently on the advisory board of the Bureau of National Affairs' Expert Evidence Report.

Product Liability: Medical Device and Pharmaceutical Litigation

Joseph also devotes his practice to the defense of medical device product liability personal injury actions. He assists on a team as national coordinating counsel team for a major Indiana-based medical device manufacturer and, as such, works extensively with expert witnesses on cases throughout the United States. Joseph's experience also includes coordinating and managing litigation involving surgical instruments, shoulder, ankle, spine, knee and hip products. In 2015, Joseph obtained a defense verdict for a medical device manufacturer after a six day jury trial in a product liability matter pending in New Jersey state court.

He also has extensive experience litigating product liability matters involving pharmaceutical products including consolidated litigation involving a prescription antibiotic.

Since 2008, he has been included in The Best Lawyers in America in the field of product liability litigation and is also included on the Indiana Super Lawyers list. Joseph has also been listed as a Recognized Practitioner in Chambers USA: America's Leading Lawyers in Business since 2016.

Complex Commercial Litigation, Class Actions and False Claims Act

Joseph has also represented industrial, chemical and medical device manufacturers as well as release of information providers in complex commercial litigation, UCC litigation and class action litigation. He also has experience in defending military/government contractors and related aerospace industries in matters involving qui tam litigation and the False Claims Act.

He is admitted to practice in the state of Indiana, United States District Courts for the Northern and Southern Districts of Indiana, and the U.S. Courts of Appeals for the Fourth, Seventh, Eighth and Eleventh Circuits.

Joseph received his B.S. from Butler University in 1988 and his J.D., cum laude, from Indiana University Robert H. McKinney School of Law in 1991, where he served as associate editor of the Indiana Law Review. Joseph previously served as president of the Butler University Alumni Board of Directors and a member of the ButlerRising Capital Campaign Cabinet. He is very active in his community formerly serving on the board of directors of the Hamilton Southeastern Schools Education Foundation for eight years and subsequently as chair of the Foundation Advisory Council. He currently serves as President of TigerONE, a non-profit organization, and serves on the Board of Directors of Launch Fishers.

EXPERIENCE
  • Barnes & Thornburg client Dow AgroSciences LLC (“DAS”) recently obtained a dismissal in a wrongful death action filed in the Superior Court of New Jersey against DAS and other defendants.

    The plaintiff’s state-court complaint alleged strict liability, negligence, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, and loss of consortium relating to the manufacturing and sale of certain pesticides. Plaintiff also brought a survivor’s action which included claims of negligence and loss of consortium. On October 1, 2012, DAS filed a motion to dismiss arguing that the statute of limitations for the plaintiff’s claims against DAS had long expired. When filing her initial Complaint, the plaintiff had utilized New Jersey’s fictitious defendant rule and named ABC Company and John Does 1-100 as defendants, among others. Because Plaintiff failed to comply with the requirements of New Jersey’s fictitious defendant rule, DAS also argued that the plaintiff was not entitled to relate her addition of DAS back to the date of the original Complaint.

    After filing the motion to dismiss and threatening plaintiff’s counsel with a motion for sanctions for their continuous pursuit of a frivolous cause of action in violation of New Jersey law, the plaintiff agreed to dismiss DAS with prejudice three days before the motion hearing in late October.
  • Barnes & Thornburg attorneys represented a chemical manufacturer allegedly supplying defective technology to a toll manufacturer in a chemical plant explosion case involving personal injury and property damage; pursued counterclaim through lengthy jury trial resulting in pre-verdict settlement.
  • Barnes & Thornburg attorneys represented Marathon Petroleum Co. LLC and its subsidiary, Speedway SuperAmerica LLC, in obtaining dismissal in a class action brought before the U.S. District Court of the Southern District of Indiana. The class action was brought on behalf of more than 5,000 service station dealers who alleged violations of the federal antitrust statutes and multiple state laws. Plaintiffs alleged that Marathon illegally tied credit card processing fee services to the contracts that granted plaintiffs the right to operate a Marathon-branded service station, and that it conspired with banks to fix the cost of processing fees. The Court rejected both claims. The 7th Circuit affirmed in an opinion written by Judge Posner, holding that plaintiffs' tying claim failed because Marathon did not have market power in an adequately defined product market, and because there was no "tie" between two products. Judge Posner rejected plaintiff's conspiracy claim "for failure to plead a plausible theory of antitrust illegality under Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Sheridan v. Marathon Petroleum Co., LLC, 2007 WL 290056 (S.D. Ind. 2007), aff’d 530 F.3d 590 (7th Cir. 2008).
  • Barnes & Thornburg attorneys represented mobile home manufacturer and obtained summary judgment based on order excluding causation evidence, and specifically, expert opinion evidence regarding exposure levels based on unreliable extrapolation. Summary judgment was affirmed on appeal. Wallace v. Meadow Acres Mfd. Housing, Inc., No. 02A03-9907-CV-265 (Ind. Ct. App. 2000).
  • Barnes & Thornburg attorneys served as coordinating counsel for Johnson & Johnson's DePuy Orthopedics Inc. in an eight-week bellwether trial before a federal jury in Dallas. DePuy prevailed and was cleared of the allegations that it manufactured a dangerous and defective metal-on-metal hip implant. This was the first trial in the litigation in which more than 7,000 cases are consolidated in a multi-district litigation (MDL) pending in Dallas. Barnes & Thornburg is coordinating counsel for the MDL.
  • Barnes & Thornburg LLP represented Speedway SuperAmerica LLC in an action by Charles Andrews alleging that Speedway wrongly refused to sell him a Hoosier Lotto ticket on Feb. 13, 2008. According to Andrews, he entered Speedway's store shortly before the Hoosier Lottery-mandated cut-off time for Hoosier Lotto ticket sales. Andrews claimed that he filled out a play slip using numbers from his birth date and presented the play slip to Speedway's employee, who then refused to sell him a lottery ticket. Andrews alleged that the numbers from his play slip, which he attached to his amended complaint, matched the winning numbers for the February 13, 2008, Hoosier Lotto drawing and that because Speedway refused to sell him a ticket, he lost out on what would have been an $11.5 million jackpot.

    Andrews asserted five claims against Speedway: (1) breach of contract; (2) fraud; (3) breach of fiduciary duty; (4) negligence; and (5) intentional interference with prospective business or economic advantage. Speedway filed a motion for judgment on the pleadings on all counts, and Andrews filed a cross-motion for judgment on the pleadings on his breach of contract and breach of fiduciary duty claim.

    On July 27, 2010, Judge Lawrence of the Southern District of Indiana denied Andrews' cross-motion and granted Speedway's motion on all of Andrews' claims. The Court held, among other things, that Andrews was not a third-party beneficiary under the lottery contract between the Hoosier Lottery and Speedway and that there was no agency relationship between Andrews and Speedway for the sale of lottery tickets. The Court also found that Andrews' negligence claim, which was based on an Indiana Administrative Code regulation, failed as a matter of law because the duty element of a negligence action cannot rest solely upon an administrative regulation.
  • Barnes & Thornburg LLP represents Dow AgroSciences LLC and The Dow Chemical Company (Dow Defendants), in a personal injury lawsuit filed by the Gresser family in Tippecanoe Superior Court, Indiana, against the Dow Defendants and Reliable Exterminators, Inc. The Gressers purchased a home located in West Lafayette, Indiana, from New Chauncey Foundation, Inc., into which they moved in May 2001. Reliable Exterminators, Inc. is alleged to have treated the home with Dursban TC for termites in February 2000. Plaintiffs allege that they suffered from numerous personal injuries including attention deficit hyperactivity disorder, sensory processing disorder, cognitive dysfunction and brain damage as a result of the alleged pesticide exposure, and were forced to vacate the home in June 2002. Plaintiffs’ causes of action include negligence and products liability claims alleging failure to warn and defective design and also punitive damages.

    The case was set for trial in October 2011 before Special Judge Robert Hall in Tippecanoe County, Indiana. On August 15, 2011, the Court granted the Dow Defendants’ motion for partial summary judgment on Plaintiffs’ failure to warn claims based on the Indiana Product Liability Act. On September 28, 2011, the Court granted the Dow Defendants’ motion for partial summary judgment on Plaintiffs’ claim for punitive damages and also granted summary judgment based on preemption on the Plaintiffs’ claims pursuant to PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2011 WL 2472790 (June 23, 2011), reh’g denied, 2011 WL 3557247 (Aug. 15, 2011).

    On October 4, 2011, the trial court entered a final judgment under Rule 54(B) on behalf of the Dow Defendants. The case was appealed before the Indiana Court of Appeals and the clients prevailed.
  • Defended client in small claims bench trial where plaintiff alleged injuries by a product distributed by client's store. Judge found for client.
  • In chronic myelogenous leukemia wrongful death case alleging long term exposure to diesel fuel used to dilute Dow herbicides, summary judgment granted and affirmed because plaintiffs' circumstantial evidence of decedent's exposure was insufficient to satisfy West Virginia substantive state law proximate cause requirements.
  • In putative nationwide RICO/product liability class action brought on behalf of all children allegedly exposed to Dursban® and all persons who suffered personal injuries or business or property damage from alleged exposures to Dursban, the principal allegation was that Dow had obtained and maintained the federal registration of its Dursban products through a pattern of fraud on the EPA. The court dismissed on the pleadings plaintiffs' RICO mail fraud, wire fraud and conspiracy claims, and dismissed plaintiffs' Lanham Act, "fraud on the EPA," fraudulent concealment, fraudulent omission, failure to warn, and express warranty claims.
  • Peter Rusthoven, Joe Eaton and Paul Jefferson of the Indianapolis, Indiana office of Barnes & Thornburg LLP represented Speedway SuperAmerica LLC in Speedway SuperAmerica LLC v. Gerald and Madeline Holmes.

    In a decision handed down on May 15, the Indiana Supreme Court vacated an earlier judgment in favor of the plaintiff who claimed he was injured by slipping on diesel fuel at a Speedway gas station in 2000 because of a pair of jeans introduced as evidence on the first day of trial. Those jeans, which the plaintiff said he was wearing the day of the accident, were introduced by the plaintiff without communicating the discovery to the defendant. Post-trial testing, ordered after Speedway filed a Motion to conduct it, determined not only that the stain on the jeans was not diesel fuel, but that the jeans were not manufactured at the time of the fall. The trial court denied Speedway's post-trial motions. Speedway appealed the trial court decision and Indiana Court of Appeals' affirmation denying Speedway's motion to correct the error and for relief from judgment under Indiana Trial Rules 59 and 60 and its request for relief under T.R. 60(B)(2) alleging newly discovered evidence. The Indiana Supreme Court has reversed the order of the trial court and the case has been remanded with instructions to vacate the judgment and conduct a new trial.
  • Plaintiff alleged that her claimed brain damage, neuropathies, and other personal injuries were caused by regular applications of a Dursban®-containing product at her workplace. Plaintiff and her medical causation experts, however, could not distinguish between her alleged personal injuries which she sustained outside the statute of limitations and those which were allegedly timely asserted. Summary judgment granted and affirmed.
  • Plaintiffs alleged that a child's cerebral palsy, neurodevelopmental delay, and neurological deficits were allegedly attributable to multiple in utero and post natal exposures to Dursban® L.O. Notwithstanding these allegations, Court granted summary judgment for Dow, finding no design defect and holding "Balancing the utility of the product against its risks, the Court finds that its benefits outweigh its risks." Court also excluded the exposure/dose opinions of Richard Fenske, Ph.D., MPH, and the specific medical causation opinions of Dr. Cynthia Bearer because they relied on Dr. Fenske's opinions; granted summary judgment because plaintiffs lacked admissible evidence of medical causation; excluded evidence of 1995 settlement of EPA civil administrative complaint regarding adverse effect reporting and evidence of June 2000 agreement with EPA to phase-out certain uses of chlorpyrifos-based products; and denied plaintiffs' motion for reconsideration and confirmed that plaintiffs' medical causation evidence was inadmissible. See 2008 WL 5191865 (S.D. Iowa Nov. 3, 2008); 2008 WL 5142193 (S.D. Iowa Nov. 3, 2008); 2008 WL 51421788 (S.D. Iowa Aug. 15, 2008); 2008 WL 5383845 (S.D. Iowa Dec. 22, 2008).
  • Plaintiffs alleged that Mr. Romah’s aplastic anemia, respiratory problems, partial paralysis and other injuries were caused by long-term exposure to Dursban® 2E regularly applied at his workplace. Court excluded the medical causation expert testimony of Plaintiffs’ forensic toxicologist and their oncologist/hematologist and granted summary judgment. Romah v. Hygienic Sanitation Co., No. G.D. 87-22370 (Pa. Ct. Com. Pls. Sept. 10, 2001).
  • Represented appellee in appeal of dismissal of toxic tort claim for want of prosecution.
  • Represented Marathon Petroleum Company LLC (MPC) in a purported national class action, alleging violations of various States’ consumer protection statutes and unjust enrichment. The plaintiff claimed that MPC conspired with certain other major refiners to cause retail gasoline prices to be unfair and misleading. The court denied the plaintiff’s motion to certify an Illinois-only class of retail gasoline purchasers, agreeing with MPC and the other defendants, that individual questions predominated over any issues common to the class.
  • The Indiana Supreme Court denied a petition to transfer jurisdiction in a class-action suit over medical records fees involving firm client HealthPort Technologies, LLC, a medical records company based in Georgia. In 2014, Garrison Law Firm, a personal injury firm in Indianapolis, requested copies of several of its clients' medical records from a health care provider, who outsourced the services to HealthPort. After conducting a search, HealthPort did not locate any records and thus had nothing to produce to Garrison. HealthPort sent Garrison a $20 invoice to cover the labor costs incurred responding to each request, which Garrison paid. In August 2014, Garrison filed a class-action complaint against HealthPort alleging that the $20 labor fees violated Indiana law as part of a coordinated effort by several plaintiffs' firms that filed multiple class-action complaints against HealthPort in numerous states under similar theories. After deciding to make a stand in Indiana, HealthPort prevailed at the Indiana Court of Appeals, which reversed the trial court and ordered it to enter judgment in HealthPort’s favor on all of Garrison’s claims. The Indiana Supreme Court then denied Garrison's petition to transfer jurisdiction, effectively closing the issue in Indiana. HealthPort Techs., LLC v. Garrison Law Firm, LLC, 51 N.E.3d 1236 (Ind. Ct. App. 2016).
  • This product liability case involved a prosthetic hip stem that fractured more than 13 years after it was implanted. Two days before the Alabama statute of limitations expired, plaintiffs filed suit against client DePuy Orthopaedics, Inc., and Johnson & Johnson, alleging strict liability, failure to warn and breach of warranty. Though plaintiffs filed the complaint prior to the expiration of the statute of limitations, a summons was not issued until more than six weeks later – well after the statute of limitations had run. DePuy Orthopaedics moved for summary judgment, arguing that Alabama law required a plaintiff to not only timely file a complaint, but also timely serve (or have the intent to timely serve) it as well. On May 13, 2016, the District Court for the Southern District of Alabama granted summary judgment on all counts. On Nov. 28, 2016, in affirming the district court’s ruling, the U.S. Court of Appeals for the Eleventh Circuit applied Alabama law to determine whether the action commenced before the statute of limitations period had run and concluded that under controlling Alabama precedent, withholding service means that the action did not commence when the plaintiffs filed the complaint and the plaintiffs offered no proof demonstrating that they had the requisite intent to timely serve the complaint prior to the running of the statute of limitations.
  • Where child's fatal malignant ependymoma (a malignant brain tumor) was allegedly caused by multiple in utero and postnatal exposures to Dursban®, trial court excluded plaintiffs' medical causation expert evidence. Summary judgment granted and affirmed.
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