They Represent Companies That Land in Court
Palmieri, Tyler, Wiener, Wilhelm & Waldron, Irvine
Education: UC Berkeley; admitted in California, 1972
Age: 52
Family: Wife, Pat; 28-year-old daughter, a ballroom dance teacher; 16 year-old son attending St. George’s Boarding School in Rhode Island
Hobbies: Running, 30-40 miles per week; skiing
“In this business, you eat a lot of humble pie,” says Frank Rothrock. He specializes in the area of pharmaceutical and medical-device product liability.
The case in which the pie tasted especially humble was a dental-appliance case he tried against Tustin plaintiff attorney Clifford Roberts. The claimant said the company Rothrock represented didn’t disclose that its product burned people’s mouths. In the end, Roberts “gave me a whipping,” he said. “He thrashed me for a $3.25 million verdict in the early ’90s, that included over $2 million in punitives.”
But sometimes the verdict goes in favor of the defense.
Rothrock represented San Diego Gas & Electric in a controversial case that was decided by the California Supreme Court in 1996.
“Winning that case before the Supreme Court was a big victory,” he said.
The plaintiffs claimed that electromagnetic fields (EMFs) from electric power lines cause cancer. “No studies have validated that,” he said. He successfully argued that the case should be resolved by the Public Utilities Commission, not the trial courts. He later handled several EMF cases,ultimately dismissed,brought by OC plaintiff attorney Wylie Aitken.
Rothrock squared off with OC plaintiff attorney Mark Robinson in the breast-implant litigation but he mostly battled Joe Dunn, now a state senator. Dunn worked for Robinson’s firm.
“Mark and Joe are both tough litigators,” Rothrock said.
Rothrock began practicing law for a Los Angeles firm in 1972. His earlier practice in workers’ compensation law gave him some of the medical background he needed in later product-liability cases. When he moved to Orange County in 1974, he was given the Shiley heart-valve case, going up against OC plaintiff attorney Jim Capretz and others.
“I sort of learned on the run,” he said.
Rothrock went on to represent McGhan Medical Corp. in the national breast-implant case. There was a global settlement but some cases are still being fought individually, he said.
Rothrock also represents Norplant, the maker of a birth-control implant. The claimants alleged a host of problems, from adverse reactions to the hormone causing cosmetic problems, he said.
“There was a large wave of litigation, and the plaintiffs have not prevailed,” he said, though some cases are still pending. He tackled that case by showing Norplant underwent very extensive testing. Essentially, his job was to illustrate the company’s safety record. Mass tort cases like the Norplant or the breast implant suits have a life span, he said. “They’re born, and then they die.”
ART GREENFIELD
Snell & Wilmer, Irvine
Education: University of Arizona; admitted in California, 1964
Family: Wife, Sue; three children (son is a plaintiff attorney), five grandchildren
Hobbies: Grandkids, skiing, working out, surfing (when his son talks him into it)
“There aren’t too many people crazy enough to get into it,” says Art Greenfield. He’s talking about his niche as a defense attorney for auto manufacturers.
Many of the cases he handles are catastrophic, involving serious injuries, even death, and all of the cases are complex and time-consuming, he said. Greenfield devotes 40% to 60% of his practice to product liability, trying about two cases per year and well over 100 during his career.
He says the number of product-liability cases against carmakers hasn’t risen, but the complexity of litigation has increased and the plaintiffs’ attorneys have become more sophisticated. The potential awards in the cases are also high, reaching into the billions. (Greenfield was one of the attorneys representing GM when it was hit in July with a $4.9 billion award,later reduced to $1.1 billion,in a case involving OC’s Mark Robinson on the plaintiffs’ side.)
Greenfield started practicing product-liability law 30 years ago, defending clients like Ford and General Motors, who are still clients today.
He recently handled a case for GM that involved a high-speed collision between a GM model and another car. Some of the passengers in the GM car died. The plaintiffs claimed that the occupants died as a result of a fuel fire in the engine, which was defective because it didn’t contain a shut-off device. Greenfield successfully argued that the fire could have been the result of other combustible fluids in the engine,such as engine oil, transmission fluid even the polyglycol in the car’s cooling system,and the burden of proof was on the plaintiffs.
ROBERT “HOOT” GIBSON
Education: University of Arizona; admitted in California, 1977
Age: 54
Family: Wife, Leslie; 29-year-old son, a lawyer in San Diego
Hobbies: Scuba diving and underwater photography (he likes Santa Barbara Island because “the sea lions come out and play with you”)
Gibson,tagged Hoot in the Army, after a silent-film cowboy,got into the product-liability field as a natural offshoot of work in medical malpractice.
He is representing Gate Pharmaceuticals in the fen-phen litigation, although there’s not much to do in that case right now since the plaintiffs,represented by OC attorney Mark Robinson,have chosen to focus their case against the makers of “fen,” American Home Products.
Like his colleague, Art Greenfield, Gibson does automotive-defect cases and primarily defends Ford.
“I don’t particularly get gratification out of winning particular cases,” he said.
Instead, he likes a good fight with a competent plaintiff’s attorney. Generally, that means there will be better, nationally known experts on both sides, he said. For instance, when Robinson is the plaintiff’s counsel, cases are more challenging and flow better, he said.
“If you have him on the other side, it’s actually pretty easy to sit down with the attorneys on the other side,” Gibson said. “Instead of posturing, you can get right to work.”
DON RUSTON
Of Counsel, Lewis, D’Amato, Brisbois & Bisgaard, Costa Mesa office
Education: UCLA; admitted in California, 1955
Family: Wife, Joyce; six children, 11 grandchildren
Hobbies: Limited skiing (he was injured when he was hit by a snowboarder, and his wife says he skis “too damn fast”)
Ruston may be the oldest attorney of the product-liability group. He is also still one of the feistiest.
“He’s one tough guy,” said OC plaintiff attorney Mark Robinson.
Ruston has worked in just about every area in trial law. He represented the County of Orange for 15 years and got involved in asbestos litigation. While Robinson was earning his reputation in the Ford Pinto case, Ruston was busy winning in the Orange County dragstrip defective-rail case.
BF Goodrich was also a big client of Ruston’s. He went all over the U.S. defending Goodrich against claims that their “space saver” tires were blowing people up.
“People would lose body parts blowing them up with a hose,” Ruston said, but they were putting too much air in the tires. Most of those cases were settled, he said.
One of his most interesting and highly publicized cases Ruston had was defending Holiday Health Spa, a gym, against a woman who claimed she turned into, among other personalities, a nymphomaniac and a religious freak because she was trapped in the gym’s sauna bath for five hours. She alleged a defective door, he said. The case became notorious, and former “Tonight” show host Johnny Carson picked up on the story and included it regularly in his nightly shtick. Ruston won that case.
His biggest loss was a whopper,a bad-faith case brought by OC plaintiff attorney Wylie Aitken.
“He clobbered me and clobbered me bad to the tune of $15 million,” Ruston said.
Not good for his ego, he added, but the case eventually settled.
About Robinson, he recalled, “He and I got in a big argument once, and the judge threatened us if we both didn’t shut up and sit down.”
He considers Aitken and Robinson two of the better plaintiffs’ attorneys.
“I would much rather work with an excellent attorney,” Ruston said. With a good plaintiff’s attorney “we can cut through the BS.”
Ruston is winding down his career and had planned to retire this year. However, he took on another case he thought was intriguing, representing the territory of Guam in a water-rights case set to go to trial in March.
PATRICK DUFFY
Cooksey, Howard, Martin & Toolen
Education: University of Arizona; admitted in California, 1966
Age: 61
Family: Wife, Cindi; three boys, including a 35-year old son who is an engineer, a 4-year-old and a 5-year-old
Hobbies: Rough water swims, taking care of the kids
“I tried quitting 15 years ago,” said Patrick Duffy. “It kind of drove me nuts. I love practicing law.”
He also has two young children to put through college.
His area of specialization within product liability is “toxic torts”: cases involving the release of toxic chemicals from a client’s property. In Orange County, he represents Fluor Daniel, which was involved in litigation after a Texaco refinery explosion, because the company had built the area where the explosion took place. But Texaco assumed all liabilities because it was their equipment, he said. Each of the 12,000 plaintiffs received approximately $4,000 in settlements.
“You pay a lot of these claims off because it costs too much to defend them,” he said.
He is representing Fluor Daniel in a chemical-exposure case. Fluor works with several toxic chemicals, including benzene and arsenic. About 140 plaintiffs have alleged that they became ill or got cancer because of exposure to the chemicals.
“We don’t deny these chemicals exist,” Duffy said. “But just because you have those chemicals doesn’t mean people are going to get injured or sustain illness.”
Duffy is trying the case against a plaintiff’s attorney teamed up with two small law firms. They’re asking upward of $25 million in settlement.
“He hasn’t received one cent,” Duffy said.
Considered a “switch gear” expert, Duffy is called in on most cases involving the switch-gear box on the outside of a house that reduces voltage and routes power inside.
Switch-gear cases often involve a death because the operator is working with high voltage. The plaintiffs typically allege design and installation defects. “The theory against us is if we could’ve designed a better-mousetrap type of thing.”
“I know the formula you need to use to defend these cases,” he said.
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Other notable local product-liability defense attorneys include:
n Bob Thompson, managing partner with Callahan, McCune & Willis
The majority of Thompson’s practice is representing auto dealerships. For instance, someone buys a car, the brakes fail, then the owner sues the dealer “because we put it in the stream of commerce.” But in defending these cases, the end manufacturer has ultimate liability for the product, he said.
Thompson has also worked on defective tire, garage-door, and water-heater cases.
n William Ginsburg, partner with Cotkin, Collins & Ginsburg
Best known as the lawyer accused of being in over his head as counsel to Monica Lewinsky, Bill Ginsburg is really a noted medical-malpractice and product-liability attorney. He recently joined Cotkin Collins, based in Los Angeles with an office in Orange County.
Ginsburg specializes in medical-device defense. For instance he is working on a case on behalf of an OC firm that makes oxygenators. Used in hospitals, an oxygenator puts oxygen into blood.
“If the oxygenator fails or is defective the patient will die,” he said. While the complainant is arguing the product is defective, Ginsburg is arguing the hospital didn’t use the product in the correct manner.
One of his most recent cases, which he lost but is appealing, involves the National Spa & Pool Institute. The trade organization writes guidelines on how products should be manufactured, he said. A user, who was following the “suggested” guidelines, ultimately became paralyzed and filed suit against the association, he said.
The case was tried in Kennewick, Wash., a small town, and Ginsburg said, “It wasn’t surprising that we would lose to the son of the high school football coach.”
Ginsburg said his client is not liable because “they’re providing a service.”
“The issue is not sympathy or empathy, it’s who’s at fault,” he said.
n Bruce Cleeland, managing partner of Haight, Brown & Bonesteel, Santa Ana office
Bruce Cleeland deals with “planes, trains and automobile stuff,” generally from the electrical component end. Many of his initial contacts for cases come through the insurance industry, he said. Insurance carriers hire attorneys that specialize in certain areas.
Cleeland also represented Bristol Meyers Squibb in the breast-implant class-action case, as well as one of the manufacturers of “phen,” in the fen-phen diet drug class action. n
