Practice Strengths

Prevention and Defense
Our firm strives to protect the integrity of a client's product and reputation. Our product liability and toxic tort attorneys resolve and litigate cases from manufacturing defects and product misuse to individual chemical exposure and class action claims.

We understand that in today's climate, nearly every matter in this area of law can threaten a company's core business. Regardless of the size or scope of a matter, we address the scientific, technical and medical issues of product liability and toxic injury cases. We also, as preventive measures, develop claim prevention plans and assist clients with product design and warning programs.

Our goal is to provide ongoing, seamless communications with our clients, utilizing extranets, document banks, secure online discussion tools and other methods to maximize efficiency. At the earliest stages of our relationship with a client, we discuss litigation-minimization and cost-saving strategies such as: alternative dispute resolution, early case analysis, and post-matter assessments to review successes, outcomes and lessons learned.

Product Liability
We litigate product liability cases across the country resolving claims of design defect, duty to warn, product misuse, post delivery product tampering and other allegations. These claims involve such injury claims as psychological, neurological, chemical hypersensitivity, immune system disorders and fear of future injuries due to chemical exposure.

Additional Resources
We supplement legal counsel with technical, medical and other scientific support to defend clients in the simplest to the most complex cases. We're resourceful, using not only our national team of attorneys, but also highly regarded witnesses with significant understanding of the products involved in claims against our clients, including:

after-market automotive products building materials chemical products construction equipment construction failures consumer products farm machinery foods hazardous materials	heating and cooling vessels industrial machinery manufacturing and processing medical devices motor vehicles (autos, tow motors, trucks) oilfield equipment and gas pipelines paints	prescription drugs pressure vessels roofing products small appliances solvents swimming pool and pump accidents theme park rides tobacco products water slides

Toxic Tort
Baker Hostetler lawyers have extensive experience defending mass tort cases. Our lawyers have served both as national counsel--advising clients on and implementing overall strategies, and as regional and local counsel—handling the day-to-day work and trying cases for dozens of clients in tens of thousands of cases in numerous jurisdictions and trying cases all over the country.

Our experience places us among the nation's top toxic tort law firms. Due in part to our asbestos work for GAF, the Asbestos Claims Facility and the Center for Claims Resolutions, we are current with the most recent legal theories and practices for managing significant mass tort cases.

We have served as a "National Coordinating Counsel" as well as regional and local counsel for clients in their defense of many different products. Our nearly 40 years of toxic tort experience includes environmental disasters, such as the Exxon Valdez oil spill, and tragedies, such as the Beverly Hills Supper Club fire. In these and other matters we serve clients as local, regional and national counsel.

Our Toxic Tort team, which incorporates attorneys and paralegals from all of the firm's offices, handles every size of case, from individual actions regarding single exposures, to mass individual filings, to nationwide class actions.

Additional Resources
We work daily with medical and scientific experts who provide cutting-edge consultation crucial to toxic tort litigation. We have called on these experts to assist us in cases involving dozens of substances, including:

acids and tailings  "Gulf War Syndrome" aluminum wire anhydrous ammonia asbestos asbestos containing products "BTEX" benzene benzopyrene beryllium butadiene chlordane	coal tar DES DPT vaccine fiberglass formaldehyde hydrogen sulfide isocyanates lead L-tryptophan maleic anhydride	methylene chloride NORM PCBs PCE peroxides pesticides petroleum hydrocarbons Phosgene printing ink PTFE radioactive waste	silica silicone/saline solvents styrene sulfur dioxide TCE TDI Tetracycline TMA (trimethylamine) vinyl chloride

Our cases concerning these and other toxic materials have helped us develop important technical experience and contacts in the medical and scientific communities. This is invaluable in understanding how to communicate complex matters concerning the cardiovascular and central nervous systems and related dysfunctions, including: multiple chemical sensitivity, connective tissue disorders, cancer, diseases of the lungs, toxic encephalopathy, organic brain disease, polyneuropathy and multiple other neurological, physiological and psychological disorders.

Emergency Response
Our Emergency Response Team serves clients nationwide.  Lawyers in each of our offices are on call 24 hours a day and dispatched to an incident site immediately following our notification of a mishap.

In an emergency response situation, clients need to focus on bringing a situation under control and moving toward the resumption of normal business operations. In furthering that goal, our Emergency Response Team can establish and maintain productive working relationships with investigatory agencies, insurance companies, legitimate claimants, employees and other stakeholders.

We understand and manage reporting obligations and responses to citations and enforcement actions with OSHA, U.S. and state environmental protection agencies, USCG, and other authorities. We provide assistance with safety, health and environmental compliance issues involving the Code of Federal Regulations, such as process safety, hazardous materials and other environmental regulations.

Baker Hostetler also assists clients prior to the onset of a crisis. We perform environmental and related audits, develop regulatory compliance plans, conduct risk management, litigation and insurance coverage analyses, and advise companies on the preparation of their own emergency response plans.

We are among the nation's top toxic tort law firms, with experience ranging from asbestos exposure to environmental disasters.

Baker Hostetler's Emergency Response and Crisis Management team can be contacted toll-free, 24 hours a day, at 216.621.0200.

Consumer Products Safety
The Consumer Product Safety Commission (CPSC) governs the safety of thousands of types of consumer products in the United States, and has far-reaching impact on many industries. The CPSC enforces numerous federal safety laws, which make up federal consumer product safety regulation today. These laws include:
 

• Children's Gasoline Burn Prevention Act (CGCPA)
• Child Safety Protection Act (CSPA)
• Consumer Product Safety Act (CPSA)
• Consumer Product Safety Improvement Act (CPSIA)
• Federal Hazardous Substances Act (FHSA)
• Flammable Fabrics Act (FFA)
• Poison Prevention Packaging Act (PPPA)
• Refrigerator Safety Act (RSA)
• Virginia Graeme Baker Pool and Spa Safety Act (P&SSA)

States, too, have adopted an array of environmental and consumer product safety laws that must meet or exceed federal laws and in many instances create state-specific standards. Baker Hostetler advises clients on the many state and federal laws and regulations involved in consumer product safety compliance. The firm maintains an excellent internal tracking of daily developments at both the national and state levels concerning consumer product content regulation.

We provide counsel on consumer product safety regulation of such products as: toys, children’s products, clothing, shoes, household appliances, furniture, electronics, equipment, cribs and other juvenile furniture and products, giftware, tableware, holiday decorations, personal care products, books, bicycles, ATV's, pool and spa equipment and the packaging, labeling and testing certifications now required.

We have substantial regulatory knowledge of local, state and federal requirements, and our coast-to-coast geographic reach is enhanced by a number of factors, including broad firmwide experience, our presence at the federal level in Washington, D.C., and from our experience with California Proposition 65 in our California offices. We provide real depth and serve clients throughout the country, with particular strength in the Midwest and western United States.

Significant developments in the last few years involving consumer product safety (particularly with children's products) have produced a new highly regulated marketplace. Our lawyers have long had regulatory practices that include Consumer Product Safety Commission work. We combine our litigation skills and our familiarity with presenting underlying scientific and technical data and testimony to help clients address the explosion of new regulation at the federal, state and local levels. Consumer products manufacturing, supplier, distributor and retail clients in particular need these insights because of the complexity of the emerging law and the breadth of covered products: federal law now covers products for children under the age of 13, and several states extend the coverage to 16 years of age and younger.

The new laws are complicated and create many requirements to be met in a short a time frame. Unfortunately, these factors may bring about unintended violations, and the laws can be enforced by states' Attorneys General as well as those private entities operating in the "public interest" and the federal agencies responsible for enforcement—often with greatly increased civil and criminal penalties coming into play. Due to the confusion created by the new federal requirements as well as the patchwork of state and local laws and the failure of Congress to effectively create federal law that pre-empts that patchwork, there is increased marketplace anxiety that can result in inventory wars where retailers want suppliers to take back all inventory whether it is compliant or not. This is posing a major problem for many companies.

Consumer Product Safety Improvement Act of 2008
With the adoption of the Consumer Product Safety Improvement Act of 2008 (CPSIA), the CPSC enforcement functions and budget meaningfully increased. Focusing on the consumer with the goal of creating the most stringent product safety standards and the most developed recall and product safety assurance system, the CPSC strives to ensure that every product under its jurisdiction is literally the safest in the world. It has adopted an import safety strategy that considers four primary areas: design, manufacturing, distribution and consumption. Through the mandatory self-certification of compliance with all applicable laws and regulations that must be available for every product sold to consumers in the United States and specialized testing certifications required for children's products, the process of CPSC policing of product content for lead and phthalates, as an example, is now pervasive throughout the American marketplace. CPSC recently started posting it own inspectors who are responsible exclusively for all consumer product safety compliance at U.S. ports of entry. The CPSC inspectors are able to share electronic manifest information once solely accessed by Customs and Border Protection (CBP) and issue their own notices of detention under their own set of rules and regulations. The CPSIA requires increasingly reduced lead and phthalate levels in the total product content measured in each component part of a covered product. The CPSIA-enhanced CPSC is no longer an agency to be ignored or disregarded. Those in consumer product industries must have stringent compliance programs updated continuously to meet the ever increasing standards enforced by the CPSC.

California Proposition 65—The Safe Drinking Water and Toxic Enforcement Act of 1986
Cal. Prop. 65, as it is frequently referred to, was enacted as a ballot initiative in 1986 intended by its authors to protect California citizens and the state's drinking water sources from chemicals known to cause cancer, birth defects and other reproductive harm, and to inform citizens about exposures to such chemicals. The Proposition requires the Governor to publish the list of chemicals known to cause cancer, birth defects and other reproductive harm annually. Today the list contains more than 400 substances including Phthalates and lead. Cal. Prop. 65 imposes labeling requirements on individual products and at points of sale. These requirements are enforceable by both the California State Attorney General and private individuals working on behalf of the California Attorney General. Suppliers of goods believed to violate Prop. 65 are notified of the alleged violation with a 60-Day Notice. The issuer can be the State Attorney General or one of the private individuals acting on behalf of the Attorney General. Settlements that include both labeling and product reformulation requirements are frequently entered into by suppliers in order to avoid litigation that may be filed after the expiration of the 60-Day Notice. Our Product Safety group's familiarity with this chemical list enables us to assist clients in avoiding violations of Cal. Prop. 65. Our lawyers are knowledgeable about preventative measures as well as the best practices to manage Cal. Prop. 65 60-Day Notices and litigation.

Safety and Regulatory Compliance Counseling
We counsel our clients on compliance with testing, labeling and reporting requirements for toy and game advertisements. The CPSC maintains extensive reporting requirements; we help our clients maintain best practices in meeting these requirements. We draft company compliance programs. We assist our clients in managing investigations, government agency proceedings and prosecutions, release of goods detained at ports of entry, and litigation brought by states' Attorneys General, those private individuals working on behalf of attorneys general when authorized and anyone in the supply chain harmed by the sale or purchase of a non-compliant consumer product.

Motor Vehicle Safety Law
All motorized vehicles that travel on federal United States highways must comply with more that 200 separate safety regulations covering everything from bumpers to windshields enforced by the National Highway Traffic Safety Administration (NHTSA). Manufacturers and suppliers are required to certify before sale or import that each VIN-numbered vehicle complies with each effective regulation based on testing and self-certification.

Baker Hostetler lawyers regularly advise motor vehicle and automotive parts manufacturers. We counsel clients with NHTSA-related matters, including:
 

• Auditing compliance with federal motor vehicle safety standards
• Designing compliance programs
• Defect and recall planning and notification
• Reporting and compliance for the Transportation Recall Enhancement, Accountability, and Documentation Act, including early warning reporting and foreign recall reporting
• Lobbying Congressional committees on motor vehicle safety matters
• Representing clients in administrative proceedings and litigation, including product liability litigation

Leadership in Action

Product Liability: Establishing an effective strategy for pesticide litigation defense

Client: Pesticide Manufacturers

Type of Matter: Product liability defense

Our Client's Challenge: Numerous lawsuits have been brought against our clients for alleged injuries and damages involving use of pesticide products.

The Goal: Demonstrate that federal law shields our client from product liability allegations.

Our Strategy: Baker Hostetler was a leader in developing the argument that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) preempts the claims based directly or indirectly on products warnings.

Results: We have won numerous cases with this defense and written amicus briefs in the Texas Supreme Court and the United States Supreme Court on this issue.

Product Liability Experience

• Settled more than 50 cases concerning post-collision fuel tank fires.
• Defended 300 breast implant cases.
• Won summary judgment summary judgment ruling and rejection of a client's market share liability in 500 DES cases in a state Supreme Court.
• Won three consecutive trial victories for clients concerning medical devices and pharmaceuticals.
• Defended client in temporomandibular joint implant litigation (in excess of 5,000 claims), with dismissal of client from the litigation which was upheld on appeal.
• Defended client in litigation involving sensitivity to latex gloves, including numerous claims and MDL.
• Won a jury verdict in favor of the equipment manufacturer we defended in a case concerning the explosion of a cam lock coupling.
• Won a defense verdict in a case involving a solvent product that exploded and burned the user's face and body.
• Gained dismissal on technical and procedural issues of several hundred cases relating to diethylstilbestrol, which involved the earliest application of market share liability.
• Resolved of multiple UST exposures for major oil company, including ancillary regulatory liabilities.  
• Won summary judgment for client in thousands of community exposure cases related to refinery and plant emissions.
• Won dismissals of lawsuits involving inhalation of toxic solvents.
• Resolved numerous death cases resulting from the misdelivery of gas products to a nursing home; and the successful management of the defense of the company in the unprecedented criminal prosecution that resulted from the incident.
• Earned dismissal of a lawsuit involving claims of lung damage from alleged inhalation of fumes from flat-tire repair products.
• Won a defense verdict in favor of an appliance manufacturer in a case concerning a fire that destroyed a residence.
• Defended a client accused of selling food products containing salmonella.
• Won de minimis settlement of claims for seven deaths related to alleged failure of electrical appliance in mobile home.
• Won de minimis settlement of eight figure liability for warehousing of hazardous chemicals destroyed by fire allegedly caused by improperly compounded batch rubber.
• Defended client in cases involving an underwater ladder pump for a dredge, aerial lift bucket, cranes, downhole oil field drilling equipment, natural gas recovery, petroleum pipeline valves, tank cleaning solvent and an underground crude oil spill.

Toxic Tort Experience

• Defended a client who had a water fountain on its grounds that was found to be the source of Legionella bacteria responsible for contaminating guests with Legionnaire's disease.
• Won dismissals and summary judgments of more than 10,000 asbestos personal injury cases.
• Defended against 30 cases of alleged exposure to methylene chloride and isocyanates.
• Won a favorable state Supreme Court ruling that a client's warning was adequate in defense of alleged injuries caused by the client's vaccine.
• Won summary judgment and dismissals in favor of clients in mass tort/class action/community exposure cases related to landfills and Superfund sites.
• Defended against class certification and assisted clients in structuring favorable class designations in instances where class action treatment was the most efficient means of case management and resolution.
• Defended clients in toxic exposure cases and management of OSHA and USCG investigations.

Emergency Response Experience
Our emergency response experience includes plant explosions, workplace fatalities, oil spills and chemical releases. Specific examples include:

• Tank Farm Release – A large release of petroleum and aviation jet fuel forced the evacuation of homes in a nearby community. Baker Hostetler was part of a crisis management team coordinating the company's response. Our assistance included client communications and negotiations with the EPA (federal and state), the city and the county, while later defending the company in a series of suits filed by commercial entities and homeowners.
• Chemical Plant Disaster – A chemical plant explosion killed three workers, destroyed several one-million-gallon storage tanks, and reportedly contaminated the nearby Ohio River. We managed all environmental investigations and litigation matters. The court denied a motion for class certification and the plant was rebuilt without any legal or regulatory delays.
• Plastic Catalyst Plant Explosion – Explosions at a plastic catalyst plant and surrounding buildings forced the evacuation of nearby homes. Dozens of local residents went to area hospitals for treatment of respiratory conditions and other potential health problems allegedly related to the explosion. Members of our Emergency Response Team were soon on the scene of the incident and assisted in dealing with OSHA, the EPA (federal and state) and the local emergency response commission. We also responded to multiple toxic tort class action suits filed after the incident.
• Oil Spill – Baker Hostetler represented the time charterer of a tanker that was involved in an oil spill of 400,000 gallons of crude oil off Huntington Beach, California. For several weeks, the firm helped staff the client's emergency response office and represented the client in all aspects of the spill litigation, including a natural resources damage claim under state law and the Clean Water Act, and the resultant class action litigation.
• Phosphogypsum Tailings Release – Our attorneys represented one of the major oil companies in managing the immediate environmental crisis and in resolving property damage claims and personal injury claims after a 40 million gallon acidic spill in the Houston Ship Channel.
• Structural Failure – Emergency site management, reporting and coordination of OSHA investigation after the collapse of steel framing for a major hotel under construction, as well as coordination of indemnities and subrogation interests. Involved property damage and personal injuries.

 

About Baker Hostetler's Litigation Team
When the stakes are bet-the-company monetary damages, potential criminal sentences and intense scrutiny in the court of public opinion, the more than 325 litigators of Baker Hostetler are a team to depend on. We have the kind of credentials you expect from a leading national litigation firm and a client base we have protected in and out of court for decades.

What really sets us apart is our practical experience as trial lawyers. The Baker Hostetler team includes former top prosecutors of the U.S. Justice Department (four of whom received the Attorney General's Distinguished Services Award), former prosecutors for major municipalities, veteran civil trial attorneys and enforcement officials from various federal agencies, from the Department of Energy to the SEC and NASD (now FINRA).