Top Product-Liability Attorneys Bring The Big Cases
Partner, Robinson, Calcagnie & Robinson, Newport Beach
Education: Loyola University of Los Angeles; admitted in California in 1972
Age: 54
Family: divorced; four children ages 21 to 30; Daniel, his 23-year-old son, works in the Manhattan District Attorney’s office and plans to go to law school
Hobbies: Jogging, tennis, gardening
“I like flowers,” says Mark Robinson.
He is learning about flowers and spends time planting annuals with his gardener, and though he says it’s not a typical guy thing, he finds it therapeutic. That’s his soft side.
But those in the product-liability field know him as one of the most aggressive and sometimes “abrasive” plaintiff attorneys in the country.
He’s also one of the more well-connected. He is president of Consumer Attorneys of California (the former Trial Lawyers Association), was a major contributor to the campaign of Gov. Gray Davis, and scored a local political coup when one of his firm’s attorneys, Joe Dunn, was elected to the state Senate in 1998
Robinson’s biggest judgment,and among the largest product-liability awards ever,came against General Motors for $4.9 billion (reduced to $1.1 billion). The case, which reached a verdict this past July, involved a 1979 Chevrolet Malibu gas tank, which exploded and burned several people. In conjunction with a Los Angeles law firm, he tried the case against GM, which was represented by Art Greenfield of Snell & Wilmer, one of the most prominent OC product-liability defense lawyers. (Robinson notes when an attorney loses a case “it doesn’t necessarily mean that one person is better than the other.” He said he considers Greenfield a “very worthy adversary; a tough opponent.”)
Robinson made a name for himself in the 1970s with the then highest-ever judgment of $128 million in punitive and compensatory damages in the landmark Grimshaw vs. Ford case, involving a gas-tank explosion of a Ford Pinto. He took on the case with his since-deceased partner Art Hews. In fact, it was his first product-liability case.
“That (verdict) shocked the product manufacturing community,” Robinson said, calling it the wake-up call for other companies to pay attention to liability or pay the consequences in litigation costs and punitive damage costs.
“They actually used the Pinto case to justify making seat belts safer,” Robinson said.
Robinson said he believes some companies become so bottom-line focused that they may make a product known to be defective just to save costs. But, he added, when a jury reaches a billion-dollar verdict, the company gets the message: “I’ve seen a definite improvement in Ford Motor Co.”
In fact, Robinson says he now handles more cases against General Motors and Toyota than against Ford.
In addition to automotive defects, Robinson handles machine design, helicopter, and airplane defect cases. With these cases, Robinson typically works on behalf of an individual client. But in the ’90s he became involved in some mass tort cases. Robinson’s firm became the liaison counsel for both the breast implant and the fen-phen class-action suits. (In class action suits, one plaintiff firm and one defense firm are chosen to coordinate the cases before one judge for the state.)
The fen-phen case is still ongoing but the plaintiffs,at this moment,are only going after American Home Products, the maker of fenfluramine, the “fen” in fen-phen. In order to put on an overwhelming case, the plaintiffs have chosen to focus where there is more evidence, Robinson said. That leaves OC Snell & Wilmer attorney Hoot Gibson, who represents Gate Pharmaceuticals, makers of “phen,” sitting on the sidelines in this case.
“But that doesn’t mean (the ‘phen’ makers) are out of the woods,” Robinson said. Since the products were marketed together, the plaintiffs could attack the case from that perspective.
Robinson’s firm is also part of the California team , along with a few Los Angeles law firms and, later, the attorney general , that brought suit against the tobacco companies in 1994. The case settled in California in 1999 for $24 billion.
Still, he says the Pinto case was the most rewarding.
“That got me going and made me aware,” he said.
And, he said, after that case, he didn’t consider himself a product-liability expert but everyone else did.
He said his most disappointing case was a $15 million jury verdict against Hyundai, which the judge upheld but the court of appeals reversed.
“I was very upset by that,” he said.
JIM CAPRETZ
Capretz & Associates, Newport Beach
Education: Loyola University, New Orleans, La: admitted in California, 1969
Age: 60
Family: Wife, Cindy, a graduate student in public administration and social welfare; children ages 4 to 30; Nicole, the oldest, is an environmental attorney in San Diego
Hobbies: Skiing, biking, travel
Jim Capretz’s Irvine address in the Martindale-Hubbell National Law Directory landed him in the middle of the high-profile heart-valve case against the Irvine-based manufacturer, Shiley (later acquired by Pfizer).
A Canadian law firm working on a product-liability case against Shiley called Capretz for assistance in 1985, simply because of his proximity to the manufacturer. The defendant was “financially worthy,” Capretz said, the liability was there and Capretz had an interest in medicine, so he decided to take the case.
The heart-valve case was settled globally in 1992, though Capretz is still working on a few individual cases that weren’t part of the mass litigation. Some cases stand out and warrant individual attention, he said. Individual contingency-based cases generally yield higher attorney paybacks, as well as more money for the plaintiff. The attorney takes 25% to 40% of the award in individual product liability cases, Capretz said.
Though some attorneys are averse to global settlements and would rather go to trial, Capretz likes them and said his case load is mainly class actions. Attorney fees in class-action cases are awarded by the court and can be as high as 20%, he said.
Capretz furthered his product-liability casework,it now accounts for 60% of his practice,and has represented about 120 people in the class action suits filed against breast implant-manufacturer Dow Corning and the “fen-phen” diet drug maker American Home Products Corp. Those cases were globally settled for upward of $3 billion each.
WYLIE AITKEN
Wylie A. Aitken A Law Corporation
Education: Marquette University; admitted in California in 1966
Age: 59
Family: Wife, Bette; three children, two of whom are lawyers who work at the firm; his daughter is attending USC law school
Hobbies: politics, skiing, travel, photography; has a home in Mexico near Rosarito Beach
As the son of “avid New Deal Democrats,” Wylie Aitken says, “I always saw myself representing the little guy.”
So he says representing plaintiffs is consistent with his personal philosophy.
Aitken says he has crossed over to the defense side but only in cases of “big company eats little company.” About 70% of his work is done in Orange County and his largest judgment was $17 million. But he says he never judges himself on the size of a judgment.
Not wanting to handle mundane legal tasks day in and day out, Aitken decided to get into trial law.
Doing the same thing every day becomes the business of law, he said. “I never saw myself as a business person. I saw myself as a trial lawyer.”
Most of the cases he handles are individual cases and he prefers them to class-action suits. He said he would much rather set the precedent or start a class-action by tackling individual cases. One of his more recent high-profile cases is representing a widow whose husband was killed at Disneyland on Christmas Eve 1998.
The accident happened when a 9-pound metal piece snapped off the Columbia Ship ride, killing one person and injuring two others.
One of his most disappointing cases, Aitken said, involved the Super Stallion military helicopter. Aitken represented the widow of a Marine Corps pilot killed in a crash. He argued that the helicopter had a design flaw, but the defense argued it had been built to government specifications. Aitken said he had to settle for an inadequate amount.
Aitken also is involved in politics.
“I figured if I was going to make a difference I had to represent clients both inside and outside the courtroom,” he said.
He is chair of the Democratic Foundation of Orange County and was campaign chair for Rep. Loretta Sanchez, D-Garden Grove. He was her attorney in the challenge following her first victory over former Rep. Bob Dornan.
Of raising three attorneys he said: “They did it on their own, which is probably the only way it would’ve worked.” They spent summers working around the office but “I was never the driving force.”
Jay Horton, 46, Horton, Barbaro & Reilly, Santa Ana
Horton is one of the better trial attorneys according to his colleagues. He’s handled a few product-liability cases, ranging from automobile-defect cases to a defective-ladder case against Sears. He was up against attorney Bill Ginsburg in a defective pool-slide case several years ago that was settled for $600,000.
Horton also handled about 30 breast implant cases.
One other notable item about Horton is that he’s had the same partners since 1977.
“We’re not afraid to fight with each other,” he said.
