In re Zetia (Ezetimibe) Antitrust Litigation
Strategic and trial counsel for Merck in defending antitrust class actions and opt-out actions in MDL in which direct and indirect purchasers claim that Merck’s settlement of a Zetia® Hatch-Waxman patent case violated federal and state antitrust laws resulting in billions of dollars in overcharge damages. Argued dispositive motions and took and defended expert depositions. Argued and won motion to exclude one of plaintiffs’ liability experts.
Gadolinium Retention Contrast Dye Litigation
Lead counsel for Bayer in nationwide litigation regarding Bayer’s Magnevist® contrast dye. Plaintiffs claim that they developed a variety of injuries as a result of retaining gadolinium in their body following use of Bayer’s gadolinium-based contrast agent Magnevist® and other contrast agents during MRI procedures. Secured dozens of voluntary dismissals, in addition to court-ordered dismissals, over the course of the litigation.
IVC Filter Litigation
- In re Gadolinium-Based Products Liability Litigation (J.P.M.L.) Argued for Bayer defendants before the Judicial Panel on Multidistrict Litigation. Defeated plaintiffs’ petition to create an MDL.
- Fischer v. Bayer HealthCare Pharmaceuticals Inc. (D. Ariz.) In bellwether cases, argued and won exclusion of plaintiffs’ four general causation experts resulting in an 85-page opinion followed by full summary judgment. Plaintiffs voluntarily dismissed their appeal to the Ninth Circuit.
- McGrath v. Bayer HealthCare Pharmaceuticals Inc. (E.D.N.Y.) Argued and won motion to dismiss based on a novel preemption theory resulting in a widely-cited published opinion.
- Combs v. Bayer HealthCare Pharmaceuticals Inc. (N.D. Ohio) Argued and won motion to dismiss on statute of limitations grounds based on plaintiff’s statements at an FDA advisory committee meeting.
- Sabol v. Bayer HealthCare Pharmaceuticals Inc. (S.D.N.Y.) Won motion to dismiss based on a novel preemption theory resulting in published opinion.
- Klein v. Bayer HealthCare Pharmaceuticals Inc. (D. Nev.) Won motion to dismiss based on a novel preemption theory not previously accepted by any district court in the Ninth Circuit.
- Goodell v. Bayer HealthCare Pharmaceuticals Inc. (D. Mass.) Won motion to dismiss based on lack of personal jurisdiction over in-state plaintiff’s claims as well as preemption.
Second-chair trial counsel for IVC filter manufacturer Rex Medical in a product liability case set to be tried before a jury in the Pennsylvania Court of Common Pleas. The case settled days before jury selection.
Hurricane Katrina Litigation
Trial counsel for large cement company defending against claims by a governmental entity for over $400 million in alleged property damage. Plaintiff brought these claims under maritime law, alleging that a barge that broke free during Hurricane Katrina caused the failure of a floodwall alongside a New Orleans neighborhood. The case settled on terms favorable to our client days before trial.
In re K-Dur Antitrust Litigation
Second-chair trial counsel for Merck in class action and consolidated opt-out antitrust lawsuits brought by wholesalers and major pharmacy retail chains that directly purchased K-Dur® 20, an extended-release potassium chloride supplement. Plaintiffs sought over $800 million alleging a patent settlement with a generic maker of K-Dur® 20 was anticompetitive. The matter settled shortly before trial.
Haley et al. v. Bayer HealthCare Pharmaceuticals Inc.
Lead counsel for Bayer in California federal court wrongful death action involving alleged birth defects from in utero exposure to prescription calcium channel blocker. The day Bayer’s motion to dismiss was due, plaintiffs voluntarily dismissed Bayer from the case without prejudice for 90 days and with prejudice thereafter.
Pan v. Medtronic, Inc.
Won summary judgment on behalf of Medtronic in product liability and wrongful death case pending in California state court concerning Medtronic’s nerve-monitoring endotracheal tube after successfully moving to exclude plaintiff’s medical causation expert.
Home Depot U.S.A., Inc. v. Lafarge North America Inc.
Lead counsel for defendant in an opt-out MDL antitrust matter brought by the largest direct purchaser concerning an alleged nationwide conspiracy to fix prices in the drywall industry. Argued interlocutory appeal before Third Circuit.
Plumbers and Pipefitters Local 572 Health and Welfare Fund et al. v. Merck & Co., Inc.
Obtained complete pre-discovery voluntary dismissal with prejudice for Merck in a putative class action brought by health benefit payors alleging Merck’s co-pay subsidy programs violated RICO and antitrust statutes and tortiously interfered with contracts. With only the tortious interference claim remaining, unearthed the key contracts at issue through online research and filed a dispositive motion that ended the case days before the first pretrial conference.
Pro Slab Inc. v. Argos North America Corp.
Lead counsel for defendant in antitrust putative class action involving alleged conspiracy to fix prices, rig bids, and allocate territories and customers in certain markets for ready-mix concrete.
Tula Foods v. Kroger et al.
Trial counsel for plaintiff Tula Foods, the maker of Better Whey of Life® Greek yogurt, in a 6-week jury trial in Ohio state court. Tula Foods asserted claims of fraud, breach of contract, and misappropriation of trade secrets in suit against The Kroger Co. and Weber Flavors.
Federal Trade Commission v. Staples, Inc. and Office Depot, Inc.
Represented Staples, Inc. in its proposed $6.3 billion acquisition of Office Depot, Inc., which the Federal Trade Commission moved to enjoin in D.C. federal court.
Represented Merck & Co., Inc. in litigation concerning Fosamax®, a prescription drug used for the treatment and prevention of osteoporosis and other bone disorders.
Nephrogenic Systemic Fibrosis Contrast Dye Litigation
- Su v. Merck Sharp & Dohme Corp. Represented Merck in New Jersey state court in the first Fosamax® trial based on an alleged atypical femur fracture. A mistrial was declared midway through the trial due to the plaintiff’s unrelated medical problems.
- Secrest v. Merck & Co., Inc. Represented Merck in federal MDL case in New York. Plaintiff claimed she developed a bone condition known as osteonecrosis of the jaw as a result of taking Fosamax®. Three-week jury trial ended in defense verdict for Merck. Represented Merck on appeal, where the Second Circuit affirmed the judgment for Merck rejecting plaintiff’s many evidentiary and jury instruction challenges.
- Hester v. Merck & Co., Inc. Represented Merck in Fosamax® federal MDL case to be tried in New York. Plaintiff alleged she suffered jaw bone injuries from using Fosamax®. Within one month of trial and days after Merck filed for summary judgment, plaintiff voluntarily dismissed the case with prejudice.
- Carballo v. Merck & Co., Inc. Represented Merck in Fosamax® case to be tried in Miami. Plaintiff alleged she suffered jaw bone injuries from using Fosamax®. With about a month left until trial and days after Merck filed for summary judgment and moved to exclude testimony from plaintiff’s key experts, plaintiff voluntarily dismissed the case without prejudice.
- Halperin et al. v. Merck Sharp & Dohme Corp. et al. Represented Merck in three-plaintiff consolidated case in Illinois state court. Plaintiffs each alleged atypical femur fractures from use of Fosamax®. Took key fact and treating physician depositions. Secured voluntary dismissals from two plaintiffs during discovery. Shortly before trial and after Merck successfully opposed a continuance, last remaining plaintiff voluntarily dismissed the case with waiver of right to refile in Illinois.
Represented Bayer in federal litigation regarding Bayer’s Magnevist® contrast dye. Plaintiffs claim that they developed a progressive, incurable disease known as nephrogenic systemic fibrosis (NSF) as a result of exposure to Bayer’s gadolinium-based contrast agent Magnevist® and other contrast agents during MRI procedures.
In re Ethicon, Inc., Pelvic Repair System Products Liability Litigation
- Gaillard v. Bayer Corp. Argued and won motion for judgment on the pleadings on behalf of Bayer in negligence and product liability case based on allegations exposure to Bayer’s contrast dye caused nephrogenic systemic fibrosis. The Eastern District of New York district court ruled in Bayer’s favor on statute of limitations grounds.
- Dent ex rel. Dialyn Rae v. Bayer HealthCare Pharmaceuticals Inc. Represented Bayer in Middle District of Florida federal district court in negligence, product liability, and wrongful death case based on allegations that Bayer’s contrast dye caused nephrogenic systemic fibrosis. After deposing plaintiffs and key treating physicians, plaintiffs voluntarily dismissed the case with prejudice.
- Regal v. Bayer HealthCare Pharmaceuticals Inc. Represented Bayer in Northern District of New York federal district court in suit asserting negligence, product liability, warranty, and other claims based on allegations that Bayer’s contrast dye caused nephrogenic systemic fibrosis. After completing depositions and with Bayer’s motion for summary judgment pending, plaintiffs voluntarily dismissed the case with prejudice.
Represent Johnson & Johnson and Ethicon in federal MDL concerning prescription pelvic mesh products used for the treatment of pelvic organ prolapse and stress incontinence. Deposed over a dozen plaintiffs.
Golden Archer Investments, LLC v. SkyNet Financial Systems, LLC
Achieved complete pre-trial victory for software development company SkyNet Financial in a commercial lawsuit filed by investment firm Golden Archer in Southern District of New York. Following oral argument, won summary judgment that dismissed Golden Archer’s multi-million dollar contract claim and awarded SkyNet Financial substantial damages on its counterclaim for overdue development fees and punitive damages on its counterclaim for violation of Illinois eavesdropping statute.
Discovery Clothing Co. v. Priceless Clothing Co.
Represented plaintiff Discovery Clothing, the largest independently owned chain of women’s clothing stores in Chicago, in a trade dress infringement and unfair competition suit filed in federal court in the Northern District of Illinois. Shortly after our client moved for a preliminary injunction, Defendant agreed to settle the case on favorable terms for Discovery. In the stipulation dismissing the case, Defendant conceded that Discovery is the prevailing party, acknowledged the validity of Discovery’s trade dress, agreed to dramatically change the appearance of its retail stores, agreed to pay our client’s lost profits and attorneys’ fees, and dismissed all counterclaims with prejudice.