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Toxic Substances and Other Torts WHEN IT COUNTS

Barnes & Thornburg's skilled litigators and trial lawyers have experience in defending claims involving a wide range of chemical substances in all types of cases, including environmental contamination, product-related mass torts and putative class actions, individual personal injury claims, property damage claims and crop loss cases. We have defended chemical manufacturers in all 50 states and have experience in state and federal trial and appellate courts across the country.

An Experience-Based Approach

Our firm has unique experience in managing chemical exposure and products liability cases and projects on a national basis. For the past 15 years, we have devoted a significant portion of our litigation practice to serving as regional and national counsel for numerous manufacturing clients. Over all or portions of that period, we have represented Dow AgroSciences LLC, The Dow Chemical Company, Georgia Pacific Corporation, 3M Corporation, Trinity Homes and Valspar Corporation in toxic tort and chemical product liability litigation pending throughout the U.S.

A Result-Driven Approach

Results for clients in product liability and toxic tort litigation include an array of favorable legal rulings, including rulings excluding medical causation and technical experts under Daubert and Frye on a variety of alleged health effects from a “toxic” exposure to other product liability claims. Our litigators understand the medicine and science involved in complex chemical product liability litigation and have extensive experience working with expert witnesses from multiple disciplines to forge focused and deliberate trial themes.

In addition to favorable rulings excluding purported expert testimony, we have also obtained favorable rulings on various dispositive motions involving sophisticated issues of substantive state law. Representative results are available here.

A Tailored Approach

Our litigators and trial lawyers are aware of the diverse substantive state product liability law, evidentiary doctrines, and procedural rules that differ markedly among various jurisdictions. Accordingly, the cost effective defense of toxic tort suits includes applying jurisdiction-specific rules to assess the potential early elimination of claims and issues that fail at the pleading stage. By narrowing the claims and issues that may properly be asserted in the first instance, the scope of discovery that the client must endure or undertake may be narrowed in equal measure.

Then, tailored discovery can be directed to the elements of the remaining claims to determine what a plaintiff must prove, but cannot; and into the elements of the client’s affirmative defenses to determine what a plaintiff must disprove, but cannot. In that fashion, early and potentially dispositive motion practice objectives can be identified and promptly proposed. And, should such early motion practice not prove successful, the issues remaining for further discovery and trial are clearly identified.

A Scientifically Informed Approach

ThemeVision, Barnes & Thornburg’s in-house jury research and settlement analysis service, supports our litigators and trial lawyers. Their team of social-science Ph.Ds and other professionals provide litigation consulting services aimed at reducing the risks and uncertainties of litigation by informing case strategies with empirical data and social-scientific analyses. The toxic tort litigation teams have worked with ThemeVision to conduct mock hearings and bench trials, focus group research, jury simulation research, community attitude surveys, demonstrative exhibit development testing and theme development in high-stakes toxic tort cases across the country. Where the decision is made to proceed to trial, we can provide empirically based, case-specific guidance regarding which themes, exhibits, and issues to emphasize to achieve the greatest persuasive impact on the jury. Where appropriate, we also can provide empirically based guidance during the jury selection process. Additionally, a nurse medical analyst supports our litigation efforts.

A Cost-Effective and Communicative Approach

We take special pride not only in the results we have achieved for our clients, but also in the cost at which those results were delivered. Our experience and expertise have resulted in significant savings to our clients over many years, driven by the concept that each project begins with the end in mind. In addition, we work hard to create a seamless integration between all members of our teams and in-house counsel, focusing on transparent and open relationships.

Practice Leaders

Joseph Eaton

Joseph G. Eaton

Toxic Torts Co-Chair


P 317-231-7705

F 317-231-7433

Denise Lazar

Denise A. Lazar

Toxic Torts Co-Chair


P 312-214-4816

F 312-759-5646

  • 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.
  • A Barnes & Thornburg attorney acted as liaison counsel for a group of national and international companies in a class action property damage lawsuit brought by several hundred landfill neighbors; plaintiffs allege that vinyl chloride from the landfill contaminated private drinking water wells and created a vapor intrusion risk. (This matter occurred prior to joining Barnes & Thornburg LLP.)
  • A Barnes & Thornburg attorney assisted in the defense of class action brought by homeowners as a result of a chemical plant explosion allegedly causing toxic exposures and property damage.
  • A Barnes & Thornburg attorney defended client against 126 personal injury cases coordinated under West Virginia’s Mass Litigation Panel rules. The plaintiffs alleged numerous and various injuries as a result of exposure to Perchloroethylene (“PCE”), which was used in a coal mine operation known as “float-sink” that tested the quality of coal samples by determining the relative density of the coal as compared to the density of PCE. After Plaintiffs completed a court-ordered fact questionnaire, a defense motion for summary judgment resulted in the dismissal with prejudice of all 126 cases. In Re Float-Sink Litigation, C.A. No. 11-C-5000000
  • A Barnes & Thornburg attorney defended client in five coordinated cases wherein plaintiffs alleged personal injuries after exposure to groundwater contaminated with trichloroethylene (“TCE”). After a Summary Jury Trial with two separate juries reaching verdicts, a global settlement was reached. Stites, et al. v. Sundstrand Corporation, United States District Court for the Western District of Michigan. (*This matter occurred prior to joining Barnes & Thornburg.)
  • A Barnes & Thornburg attorney defended five chemical suppliers in coordinated cases arising out of Plaintiff’s discharge of contaminated waste water. The Plaintiffs and neighboring property owners asserted personal injury and property damage claims as a result of the contamination. After four years of litigation, including an interlocutory appeal, reached a settlement of all claims favorable to clients. Gelman Sciences, Inc. v. The Dow Chemical Company, Circuit court for Washtenaw County, Michigan. (*This matter occurred prior to joining Barnes & Thornburg.)
  • A Barnes & Thornburg attorney is currently defending an Illinois municipal client against more than 19 lawsuits, including two class actions, arising from alleged contamination of a municipal water supply. The lawsuits involve several hundred plaintiffs and assert theories of wrongful death, fraud, fear of injury and negligence.
  • A Barnes & Thornburg attorney represented a chemical distributor in a class action product liability case filed in Alabama federal court. Plaintiffs were coal miners who sought to have the case certified as a national class action, including numerous state sub-classes. They alleged that they were exposed to isocyanates contained in mine roof stabilization products, and that the alleged chemical exposure caused a variety of respiratory ailments and other injuries. Class Certification claims were defeated and individual claims were resolved favorably on client’s behalf. (This matter occurred prior to joining Barnes & Thornburg LLP.)
  • A Barnes & Thornburg attorney represented a major agricultural chemical distributor in multiple class actions involving the herbicide atrazine, which was allegedly present in surface water of multiple municipal water districts. (This matter occurred prior to the attorney joining Barnes & Thornburg LLP.)
  • A Barnes & Thornburg attorney represented a manufacturer of caulks and sealants in defense of lawsuit filed by residents of nearby subdivision, whose wells were contaminated by vinyl chloride emanating from manufacturer's old release of PERC. The firm assisted the client with bringing suit against the client's insurers, enforcing insurance coverage and resolving residents' claims.
  • A Barnes & Thornburg attorney represented over fifty agricultural chemical retailers relative to the atrazine litigation.
  • A Barnes & Thornburg attorney represents chemical manufacturers in manganese, vinyl chloride, isocyanates, trichloroethylene, uranium hexafluoride, benzene, silica, and coal tar toxic tort exposure cases alleging personal injury and environmental damages. On behalf of clients, Mr. Lewis has successfully obtained summary judgments and trial verdicts in favor of chemical manufacturers in these matters, which were litigated in federal and state courts throughout the United States.
  • A Barnes & Thornburg attorney served as trial counsel in the jury trial of 26 toxic tort claims consolidated in the State of Maryland. Plaintiffs alleged myriad injuries and diseases as a result of exposure to many difference chemicals used in the production of GoreTex®. After a 13-week trial, the jury returned defense verdicts on all claims. Kennedy, et al. v. Mobay Corp., et al. (*This matter occurred prior to joining Barnes & Thornburg.)
  • As trial counsel, achieved favorable outcomes in a series of eight class action, personal injury, and property damage lawsuits on behalf of a supplier of industrial solvents where plaintiffs alleged contamination of private drinking water supplies in Illinois; successful results in these cases were achieved either through a jury trial, settlement, or a summary judgment motion. (This matter occurred prior to joining Barnes & Thornburg LLP.)
  • Barnes & Thornburg attorneys defended The Valspar Corporation in a case brought by an over-the-road trucker who alleged he developed Reactive Airways Dysfunction Syndrome (RADS) when exposed to fumes from our client’s paint product, which leaked from 55-gallon drums plaintiff was hauling. The defendant proved that the steel drums had been reconditioned by a third-party, which had marked the drum according to its specification under the Department of Transportation’s (DOT) Hazardous Materials Regulations (HMR) implementing the federal Hazardous Materials Transportation Act (HMTA). Granting Valspar’s motion for summary judgment, the Court found, that the defendant was “entitled to rely on the reconditioner’s mark when it accepted the drum in question and is not ultimately liable for any potential defects attributable to the reconditioner.” The Court held that the HMTA preempted all of Plaintiff’s claims. This case could set a precedent for future cases as it addressed and affirmed the preemptive effect of a shipper’s federal right to rely on the DOT specification markings on an allegedly defective container supplied by a third party. Plaintiff has appealed to the U.S. Court of Appeals for the Seventh Circuit. The decision is reported at Noffsinger v. The Valspar Corp., 2014 WL 3705176 (N.D. Ill. July 24, 2014).
  • Barnes & Thornburg attorneys have obtained dismissals and other favorable resolutions for The Valspar Corporation in multiple lawsuits alleging injuries as a result of alleged exposure to Valspar’s products. The alleged injuries in these cases have included acute myelogenous leukemia, myelodysplastic syndrome, non-Hodgkins lymphoma, kidney failure, aplastic anemia, and multiple myeloma, as a result of exposure to defendants’ products. By using a combination of aggressive strategies involving case management, dispositive motion practice and expert discovery, Valspar has secured both voluntary and involuntary dismissals as well as de minimus settlements.
  • Barnes & Thornburg attorneys represented a global ink and chemical manufacturer in a toxic exposure action which was brought against numerous defendants. The plaintiff alleged that her decedent was exposed to benzene in connection with his work as a pressman and that this exposure caused his multiple myeloma and eventual death. Firm client brought a motion for judgment on the pleadings and argued that the action was barred by Minnesota’s statute of limitations because the lawsuit was filed more than six years after the decedent’s alleged exposure to benzene. The trial court agreed and dismissed the claims with prejudice. The plaintiff appealed the ruling and the Court of Appeals for the State of Minnesota upheld the trial court’s dismissal of the action. The Minnesota Supreme Court denied plaintiff’s request for further review.

    Walsh v. Flint Group, Inc. - Fourth Judicial District, Hennepin County, State of Minnesota - Case No. 27-cv-12-15823.
  • Barnes & Thornburg attorneys represented chemical manufacturer in liver cancer case involving vinyl chloride exposure and obtained summary judgment on failure to warn, fraud, and conspiracy claims. Taylor v. Airco, Inc., 503 F. Supp. 2d 432 (D. Mass. 2007), aff’d,#576 F.3d 16 (First Circuit 2009).
  • 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 trial counsel for an international aerospace industry manufacturing company defending against class action property damage lawsuit arising from alleged TCE and PCE contamination of a municipal water supply in Ohio. (This matter occurred prior to joining Barnes & Thornburg LLP.)
  • Barnes & Thornburg attorneys successfully defended a major manufacturing company in a lawsuit where more than 1,000 individual plaintiffs allege personal injuries and property value diminution arising out of lead dust emissions from the operation of a smelter in Detroit, Michigan. (This matter occurred prior to joining Barnes & Thornburg LLP.)
  • 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.
  • Barnes & Thornburg represented a refining technology company in a wrongful death/professional negligence action involving the death by mesothelioma of an inspector and engineer at a foreign oil refinery for which our client allegedly specified the use of asbestos-containing products. After three weeks of trial before a jury, the L.A. Superior Court granted non-suit in favor of our client due to a lack of evidence presented by the plaintiff.
  • Barnes & Thornburg represented Dow AgroSciences LLC (DAS) in a significant personal injury case pending in Federal District Court in Pittsburgh, Pennsylvania. The Court granted DAS’ motion to exclude the expert testimony of plaintiffs’ medical causation expert, Dr. Bennet Omalu, M.D., who opined that exposure to Dursban® pesticide products manufactured and sold by DAS caused a pesticide applicator, Robert Pritchard, to develop a form of non-Hodgkin’s lymphoma (“NHL”). More specifically, Mr. Pritchard alleged that from 1982 through 2000 he repeatedly applied various forms of Dursban® in and around buildings and lawns, and was diagnosed with NHL in 2005. Plaintiffs proffered Dr. Omalu, a pathologist and medical examiner, to offer an expert opinion that Dursban® and its active ingredient, chlorpyrifos, can cause NHL (i.e., general causation) and did in fact Mr. Pritchard’s NHL (i.e., specific causation). DAS filed a Daubert motion to exclude Dr. Omalu’s opinions on medical causation, with extensive evidentiary materials, including affidavits from several defense experts. After extensive briefing and a day-long Daubert hearing on November 12, 2009, the Court granted DAS’ motion to exclude Dr. Omalu’s expert opinions. In a lengthy opinion that provided several alternative grounds for Dr. Omalu’s exclusion, Specifically, the Court ruled: (1) that Dr. Omalu’s opinions on general causation were inadmissible because Dr. Omalu’s reliance on and “reinterpretation” of a single epidemiology study was unreliable; (2) that Dr. Omalu’s opinions on specific causation likewise were unreliable and inadmissible due to his flawed methodology and inadequate analysis of other potential causes of Mr. Pritchard’s NHL; and (3) Dr. Omalu’s opinions were so speculative that they did not meet Daubert’s “fit” requirement. Since admissible expert testimony was required to meet the essential element of medical causation, Plaintiffs stipulated to entry of summary judgment so that they could move forward with an appeal. The Third Circuit affirmed on appeal. Pritchard v. Dow AgroSciences, LLC, 705 F. Supp. 2d 471 (W.D. Pa. 2010), aff'd, 430 Fed. Appx. 102 (3d Cir. 2011), cert. denied, 132 S. Ct. 508 (2011).
  • Barnes & Thornburg represented firm client, The Dow Chemical Company, in a multi-plaintiff lawsuit alleging that manufacturing workers developed Parkinson's Disease as a result of alleged exposure to Dow's trichloroethylene (TCE). To avoid the expiration of the statute of limitations, Plaintiffs alleged that Dow fraudulently withheld information about TCE and did not learn that Dow manufactured TCE at the workers' manufacturing plant until shortly before filing suit against Dow. The district court rejected these arguments, held the Plaintiffs' claims were time-barred, and granted Dow's motion to dismiss. Abney et al. v. Univar USA, Inc. et al., No. 5:10-cv-00303 (E.D. Ky. 2012).
  • Daniel Murchison purchased several containers of Dow’s “Great Stuff Gap & Crack Filler” for use in the renovation of his mother’s utility room, but did not read or follow the label instructions to extinguish all sources of ignition before using the product. The propellant vapors accumulated, were ignited by the water heater’s pilot light, and the resultant explosion and fire substantially damaged the residence. The Murchisons assigned their claims to State Farm who then sued Dow under the Louisiana Product Liability Act and the local fire department in negligence. Dow moved for summary judgment based on the express preemption provision of the Federal Hazardous Substances Act and one additional state law ground. Rather than oppose the motion, State Farm dismissed its claims against Dow with prejudice.
  • DC Farms, a large commercial potato grower, alleged that aerial applications of Dow AgroSciences’ ForeFront® herbicide on nearby pastures in 2008 caused damages to its potato crops in 2008 and 2009 and prevented plaintiff from planting potatoes in 2010. Plaintiff alleged that ForeFront® was defectively designed for use in Southeast Idaho where potatoes are a prevalent crop and that Dow AgroSciences breached its duty to conduct appropriate testing of ForeFront® for use in that region. The Bingham County District Court granted Dow AgroSciences’ motion for judgment on the pleadings and held that plaintiff failed to allege a true design defect cognizable under Idaho law and that plaintiff’s claim of negligent testing is not recognized as a separate basis for products liability. Thereafter, the Court denied plaintiff’s motion for leave to amend its complaint to cure its pleading defects.
  • Decedent's executor and individual plaintiffs asserted wrongful death and personal injury claims allegedly caused by application of Dursban® TC at condominium. Summary judgment granted and affirmed with the Appellate Court holding that plaintiffs' "fraud on the EPA" claims were barred and holding, "The insecticide in question is toxic, but that doesn’t make it defective[.]"
  • Dowd’s widow claimed that his fatal Non-Hodgkin’s Lymphoma was caused by his exposure to a number of “harmful and deleterious” chemicals at his workplace, including Dursban® L.O. Dow’s motion for summary judgment was granted over plaintiffs’ motion to conduct additional discovery and despite her experts’ medical causation opinions. The trial court was affirmed on appeal and the New Jersey Supreme Court denied certiorari.
  • Fifty (50) plaintiffs living near citrus groves in Hidalgo County, Texas, asserted claims for trespass, nuisance, negligence, and strict liability against a pesticide crop applicator and numerous product manufacturers and sellers, including Dow AgroSciences LLC, alleging real property damage and numerous personal injuries, including brain damage, seizures, birth defects, and leukemia allegedly caused by pesticides drifting from applications on the groves. On defendants’ motion, the court entered a “Lone Pine” order requiring plaintiffs to set forth the medical and scientific bases for their claims. After plaintiffs failed to comply with the court’s order, the defendants moved to dismiss the case. In response, plaintiffs amended their complaint to dismiss all claims against the manufacturers and suppliers. The court eventually granted the defendants’ motion and dismissed the case in its entirety, with prejudice. Pina, et al. v. Rio Queen Citrus, Inc., Cause No. C-1945-02-B (Tex. Dist. Ct. May 20, 2009).
  • 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.
  • Mr. Dockery was a commercial pesticide applicator and plaintiffs claimed he suffered a stroke, a heart attack, eye maladies, memory loss and multiple surgeries caused by his use of Dursban® TC. The court dismissed plaintiffs’ claims for "fraud on the EPA," excluded plaintiffs' expert evidence on product defect and medical causation, and granted summary judgment.
  • Mr. Gorenberg serves as National Coordinating Counsel for several defendants in asbestos personal injury litigation. He represents clients in various industries including automotive parts, plumbing equipment, and petroleum refining technology. Each client has different types of litigation risks and defenses. Mr. Gorenberg regularly works with each client to develop creative strategies suited to the particular circumstances of each specific client and every case.
  • Over 350 plaintiffs brought wrongful death and personal injury claims allegedly caused by the contamination of the air, water, and soil of Oahu by soil fumigants used decades before to control infestations of destructive nematodes in Oahu’s pineapple plantations. The court granted Dow’s motion to dismiss plaintiffs’ claims that making and selling the soil fumigants was an “ultra-hazardous activity” justifying imposition of strict or absolute liability, holding that “the manufacture of a product or substance will not be considered, as a matter of law, an ultra-hazardous activity.” Id. at 1144 (collecting authorities).
  • Over 350 plaintiffs brought wrongful death and personal injury claims allegedly caused by the contamination of the air, water, and soil of Oahu by soil fumigants used decades before to control infestations of destructive nematodes in Oahu's pineapple plantations. Dow moved for summary judgment. The court rejected plaintiffs' "fraud on the EPA" claims raised in opposition to Dow's motion and granted partial summary judgment, later amended to complete summary judgment.
  • 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.
  • Plaintiff alleged that she moved into a house recently treated with Dursban® TC and suffered acute and chronic effects including nausea, vomiting, asthma, reactive airways disease, visual problems, loss of hearing, loss of memory and intellectual impairment, muscular impairment, pain, scars, neurologic, pulmonary, hematologic, immune system, gastrointestinal, dermal, emotional and mental injuries caused by her alleged exposures. During the time she lived in the house, her dog died, which she also attributed to exposure to Dursban TC. The district court granted Dow’s motion for summary judgment against plaintiff’s “fraud on the EPA” claims. And, beyond applying an express federal preemption analysis later superseded by Bates v. Dow AgroSciences LLC, 544 U.S. 431 (2005), the court sustained Dow’s objections to plaintiff’s expert opinion evidence and alternatively held “that Plaintiff’s claims of unreasonably dangerous design... fail based on an utter lack of admissible evidence,” adding, “Based on the utter lack of admissible evidence brought forth on this issue, this claim must fail.” The Fourth Circuit affirmed, holding, “There is insufficient evidence that Dow failed to meet government standards, industry standards, or consumer expectations in its production and sale of Dursban.” The Supreme Court denied certiorari.
  • Plaintiff alleged that Wilson Air applied Grandstand® R, a Dow AgroSciences herbicide, to rice fields near plaintiff’s tree plantation, that the product drifted onto its plantation, and that it destroyed over 130 acres of cottonwood and 54 acres of hardwood trees. Plaintiff sued Dow AgroSciences alleging negligent failure to provide “detailed and specific cautions, instructions and warnings . . . for the safe application of the product to rice fields adjacent to, or near, tree plantations,” negligence in “designing, researching, testing, formulating and inspecting Grandstand R before marketing same,” “fraud on the EPA,” “misbranding” in violation of FIFRA, strict product liability for design defect and warning defect, breach of express warranty, absolute liability for selling “an inherently dangerous and ultrahazardous product,” and for punitive damages “in the amount of at least $500,000.00.”

    Dow AgroSciences moved for summary judgment on all claims made against it and plaintiff filed its motion for voluntary nonsuit dismissing Dow AgroSciences shortly after oral argument was heard on that motion.
  • Plaintiff worked as a commercial pesticide applicator and alleged that his exposures to Dursban® caused him to become permanently and totally disabled. Dr. Gunnar Heuser diagnosed his alleged severe chronic fatigue, pain, impaired memory, cognitive function, balance and coordination, abnormal brain scan, low sperm count, and total and permanent disability as caused by his alleged exposures. Trial court dismissed the claims against Dow based on the statute of limitations; the California Court of Appeals dismissed plaintiff's appeal and denied plaintiff's motion to vacate that dismissal. Anstrom v. Dow Chem. Co., No. B198978 (Cal. Ct. App. 2007).
  • Plaintiff, a Kentucky farmer, alleged that the application of Dow AgroSciences' ForeFront® herbicide on his land caused crop losses and other damages in excess of $2.5 million, and alleged that Dow AgroSciences breached its implied warranties of fitness and merchantability with respect to ForeFront®, that the product was negligently and carelessly manufactured, that Dow AgroSciences negligently and carelessly failed to warn the consuming public of the product's risks, and he supported his claims with putative expert opinions. Summary judgment granted in Dow AgroSciences' favor and against the Plaintiff on all of his claims.
  • Plaintiff’s physician diagnosed his toxic neurotropy, nerve damage, leg weakness, liver problems, tremors, and nausea as caused by his alleged prolonged exposure to Dursban®. The district court granted Dow AgroSciences’ motion to dismiss plaintiff’s claims for negligence, breach of implied warranty, fraud and misrepresentation, strict products liability, and his claim for redhibition as to his personal injuries. Barrette v. Dow AgroSciences, L.L.C., 2002 WL 31365598 (E.D. La. Oct. 18, 2002).
  • 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).
  • Plaintiffs alleged that Ms. Weir's hyperactive airways disease, multiple chemical sensitivity, and other injuries were caused by her exposure to Dursban® L.O. applied at her workplace. The trial court excluded the opinions of Plaintiffs' medical causation expert and granted summary judgment, and the Pennsylvania Superior Court affirmed both of those rulings on appeal. Weir v. Dow Chem. Co., No. 1687 WDA 2005 (Pa. Super. Ct. Aug. 23, 2006).
  • Plaintiffs, a husband and wife, alleged that they used various insecticides containing the active ingredient chlorpyrifos, including Dursban® TC manufactured by Dow AgroSciences, to make residential preconstruction termite applications as part of their pest control business. They contended that Mrs. Sanchez was exposed to these termiticides during her pregnancies with her two sons, and that both sons later developed autism and/or autism spectrum disorders as a result of those exposures. After extensive fact and expert discovery, Dow AgroSciences filed an expert-focused motion for summary judgment based on lack of medical causation. In lieu of responding to that motion, the plaintiffs voluntarily dismissed Dow AgroSciences and pursued their claims against remaining defendants. Sanchez v. Dow AgroSciences, Case No. C-1199-09-F (Tex. Dist. Ct. Aug. 17, 2011).
  • Represented appellee in appeal of dismissal of toxic tort claim for want of prosecution.
  • Represented Flint Group North America Corporation, a global manufacturer of ink and printing products, in a toxic tort case in Los Angeles County Superior Court in which the plantiffs’ decedent died of acute myelogenous leukemia allegedly as a result of exposure to benzene-containing products during his work at multiple printing facilities from 1974 through 2009. Flint moved for and was awarded summary judgment on the grounds that plaintiffs had not and could not prove that any of Flint's products contained benzene. In granting summary judgment, the court struck the plaintiffs' expert’s opinion that Flint’s inks "more likely than not" contained benzene, finding that the opinion lacked foundation and was based upon speculation. In addition, the court awarded Flint approximately $83,000 in costs, including nearly $71,000 in expert fees that were only awardable at the court’s discretion based upon plaintiffs’ failure to accept Flint’s offers of judgment made earlier in the case. Both the grant of summary judgment and the award of expert costs are basically unheard of in toxic tort litigation in California superior courts.
  • Represented global manufacturer in the defense of a mass tort action brought against various defendants who disposed of waste in landfill brought by neighbors who alleged property damage; negotiated favorable settlement for client.
  • Sixty-three Arkansas and Missouri cotton farmers sued more than a dozen national and regional formulators/distributors of 2,4-D-based herbicides and the 2,4-D active ingredients used in them alleging, inter alia, that due to the unique geological and meterological features of Northeastern Arkansas and Southeastern Missouri, those herbicides as customarily applied to rice fields had moved from the target application sites and had redeposited on plaintiffs’ cotton crops, causing many millions of dollars in crop losses. Plaintiffs sued under strict products liability, for violations of the Arkansas Deceptive Trade Practices Act, and under theories of negligence in design, testing, and warning and instructions for use, misbranding under the Federal Insecticide, Fungicide and Rodenticide Act, breach of the implied warranties of merchantability and fitness for a particular purpose, and for punitive damages.

    A group of the defendant formulators/distributors filed third-party complaints against Dow AgroSciences as the alleged supplier of the 2,4-D manufacturing-grade active ingredients used in their products, and asserted claims for negligence, breach of express and implied warranties, contribution, and costs of defense. The trial court granted Dow AgroSciences’ motions and dismissed the third-party claims against it.

    Burns, et al. v. Universal Crop Protection Alliance, et al./Nufarm Americas Inc. & Albaugh, Inc. v. Dow AgroSciences LLC, No. CV-2009-51 (Ark. Cir. Ct. Aug. 13, 2010).
  • The widow of a Missouri state court trial judge claimed that his respiratory symptoms, shortness of breath, increased sensitivity to odor, dust and fumes, impaired concentration, fatigue, eye irritation, alleged pesticide poisoning, and ultimately fatal acute myelogenous leukemia were all caused by exposures to Dursban® Pro and another pesticide applied at the Macon County Courthouse. Twelve other courthouse employees alleged similar injuries (except leukemia) plus memory loss, chest pain, muscle aches and weakness, headaches, stomach cramps, diarrhea, nausea and vomiting, burning in mucous membranes, skin irritations, increased sensitivity to sunlight, lupus, tingling and numbness in extremeties, Reynaud’s syndrome, earaches, disrupted sleeping patterns, lethargy, dizziness, depression, neuropathies, excessive urination, blood disorders, muscle spasms, sensory deficits, blurred vision, liver damage, and mental and emotional pain.

    The court granted Dow AgroSciences’ motion for partial summary judgment, and granted Dow AgroSciences’ motion to compel plaintiffs to properly disclose the opinions of their experts, Richard Lipsey, Ph.D., Mohamed Abou-Donia, Ph.D., and Dr. Grace Ziem, and awarded monetary sanctions; Dow AgroSciences thereafter moved for case-terminating sanctions based on Plaintiffs’ failure to comply with the court’s discovery orders. Plaintiffs voluntarily dismissed Dow AgroSciences at the hearing on that motion.
  • 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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