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2022 Product & Mass Torts Summit – Product Liability & Safety


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Winston & Strawn LLP held its second-annual Product &
Mass Torts Summit on June 7. The Summit harnessed the collective
experience of Winston’s Product Liability & Mass Torts
group as well as esteemed in-house counsel guest speakers to
explore effective strategies to capitalize on the changing legal
landscape and combat common plaintiff tactics. The Summit included
six panels spanning topics on understanding regulation and
compliance changes, developing scientific and epidemiological
defenses, managing plaintiff maneuvers in MDLs, preparing corporate
witnesses for trial, maximizing appellate success, and
understanding how outside counsel can partner with clients to
defend against mass torts litigation. In case you missed it, below
are our key takeaways from the Summit.

How EPA, FDA, and Federal Regulation Drive Mass Tort

Federal regulatory agencies, such as the EPA and FDA, are
assessing the health and safety risks associated with chemicals and
products in many commonly used industrial, consumer, and food
applications. These assessments are generating private-party mass
tort and product liability litigation. Companies should understand
what these agencies are doing, how proposed changes may impact
them, and what steps to take to minimize and mitigate mass tort and
product liability exposure.

Challenges and Opportunities in Developing a Scientific Defense
to Causation

Epidemiological evidence typically plays an important role in
product liability and toxic tort proceedings. Properly analyzing
the strengths and weaknesses of relevant epidemiological evidence
is therefore a key aspect of asserting a robust causation

Strategies for Addressing Plaintiff Evolving Tactics in MDLs:
Public Nuisance and Beyond

Plaintiffs seek to extract settlements from defendants by filing
a large number of cases where there are low barriers to entry.
Defense counsel should look for opportunities to point out
plaintiffs’ weaknesses, ensure credibility with the court, and
communicate frequently with their clients to define success in a
challenging landscape.

Preparing and Presenting Corporate Witnesses at Trial

Properly preparing and presenting corporate witnesses for trial
is critical to successfully defending the corporate client. This
requires ensuring enough time is set aside in advance to thoroughly
prepare the witness by mock direct and cross-examinations based on
the key facts, documents, deposition testimony, and other relevant
trial issues.

Appeals and Critical Motions: Laying the Groundwork for a
Successful Outcome

To maximize the chances of ultimately succeeding on appeal, it
is essential that one identify and preserve legal issues from the
very outset of litigation. One way to do that is to have appellate
attorneys work with trial attorneys to draft dispositive motions,
motions in limine, and proposed jury instructions.

The Realities of Mass Torts: In-House Perspectives

The responsibilities of in-house counsel for product liability
and mass tort litigation go far beyond supervising wins and losses
in the courtroom and extend to partnering with the business to
defend against brand attacks, crisis management, media and public
relations activities, enlisting third-party allies in a global
defense, and considering the impact of litigation on regulators and
the business. Our distinguished in-house panel explained how the
best outside counsel will be a strategic and business partner
advising on all these aspects of mass torts litigation.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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