Practice Areas & Industries: Kilpatrick Stockton LLP

Practice/Industry Group Overview

Kilpatrick Stockton's Toxic Tort Litigation Group ("TTLG") has actively been invovled in nationwide toxic tort litigation for more than 25 years and has been responsible for the defense of several hundred significant claims in federal and state forums throughout the United States. The TTLG also has assisted and advised clients in international projects involving toxic materials in Asia, Europe, and Latin America.

Prior to joining Kilpatrick Stockton, lawyers in the TTLG have had a wide variety of related experience, including significant responsibilities for the United States Department of Justice, Environmental Protection Agency, United States Congress, and various state and local regulatory agencies. Richard Horder, the Chair of the TTLG, served for several years as chief environmental counsel to Georgia-Pacific, one of the largest forest products companies in the world. These varied experiences give the TTLG unusually broad perspective on such litigation.

The TTLG has significant experience in class actions and other private litigation, including the litigation of cancer and other disease claims, contamination of air, water, and soil, and other forms of property damage. Products involved have included PCB's, EDB, MTBE, DDT, dioxin, benzene, lead, asbestos, warfarin, formaldehyde, phenol, perchloroethylene, vinyl chloride, chlorine gas, coal tar pitch volatiles, benzo(a)pyrene, and various other pesticides, fungicides, and herbicides. The TTLG also has substantial experience in pursuing related insurance coverage and other indemnification claims.

Representative KS clients in toxic tort litigation include Raytheon Corporation; Abex Industries; E.I. du Pont de Nemours and Company ("DuPont"); Georgia-Pacific Corporation; Nestlé North American Waters, Inc.; National Gypsum; W.R. Grace; U.S. Gypsum; Lynchburg Foundries; Intermet Foundries; Williams Industries; Gold Kist; Refractory Ceramics Fiber Coalition; Woolfolk Chemical Company; The City of Atlanta; Augusta-Richmond County; Ralston-Purina; LPS Laboratories; Abatement Technologies; and Wachovia.

Representative matters in this area are outlined below and include our substantial knowledge in representing policyholders in disputes with their insurance carriers in matters arising out of the release of contaminants.

Representative Transactions

• Responsible for all toxic tort personal injury and property contamination claims and litigation at a large pulp, paper, and wood products company for ten years. Responsible for managing and setting up procedures and methods for handling approximately 10,000 asbestos personal injury cases, including attending, taking, and defending numerous depositions of lay and expert witnesses, arguing motions before state and federal courts and trying two personal injury claims. Also responsible for setting up a nationwide "stable" of local trial counsel and expert witnesses. Responsible for implementing strategy for obtaining coverage from primary and excess insurance carriers for defense costs and indemnity, with result that 80% of all indemnity and expense costs were covered by insurance.
• Representing DuPont in defending and coordinating over 40 suits and over 150 individual claims involving property damages and contracts in Florida, Georgia, and Hawaii; dispositive motions in favor of DuPont granted by district courts in Florida and Georgia; affirmed in the Eleventh Circuit in the Georgia case, applying Georgia law; affirmed in the Eleventh Circuit in the Florida case, applying Florida law; dispositive questions certified to three separate state supreme courts.
• Representing DuPont in defending trace benzene cases alleging leukemia and aplastic anemia in the Southeastern Region. Attended, took, and defended numerous lay and expert witness depositions. Prepared and set to argue several motions for summary judgment on various issues, including scientific and medical causation and federal preemption.
• Representing DuPont as appellate counsel on various matters nationwide.
• Developed and implemented strategy for defense of personal injury litigation involving formaldehyde claims for manufactured housing (e.g., mobile homes). Implemented strategy for handling serial cases. Additionally, responsible for negotiating insurance coverage for defense and indemnity costs regarding formaldehyde litigation.
• Responsible for overseeing defense of class action of over one million individuals in the Baton Rouge/New Orleans corridor alleging personal injury for exposure to drinking water contaminated with phenol from the discharge of allegedly contaminated process water into the Mississippi River. Class was certified, and the litigation lasted approximately nine years. Successfully negotiated insurance coverage for a portion of said defense and indemnity costs and supervised litigation of claims against remaining carriers.
• Co-counsel in case in Iberville Parish brought by minority residents of historic African-American town alleging personal injury and property damage from emissions from chemical plant immediately adjacent to town. Developed strategy for negotiating with town leaders and, in particular, town minister. Successfully negotiated settlement of multi-million dollar personal injury and property damage claims including relocation expenses for reconstruction and relocation of entire historic black town. This not only resolved the claims but removed the possibility of future claims regarding emissions. Successfully negotiated with insurance carrier for contribution of over 50% of above costs of defense and indemnity in settlement.
• Served as primary counsel with outside counsel in defending and settling approximately 42 personal injury property damage claims arising out of explosion of pressure vessel from formaldehyde plant in Ohio and alleged exposure to emissions from plant in a primarily minority neighborhood. Allegations, in addition to air emissions from explosion, also related to groundwater contamination and other ambient exposures. Case took approximately eight years to successfully bring to conclusion with settlement substantially under $1,000,000. Attended, took, and defended numerous expert and lay witness depositions and successfully developed and managed strategy for settling cases.
• Defended numerous dioxin litigation matters including large class action alleging property damage to riparian owners for dioxin sediment contamination from discharges into river from manufacturing plant. Negotiated successfully with insurance carriers for substantial contribution to settlement and defense costs.
• Served as primary counsel for defendant in claims from 35 individuals from exposure to chlorine gas released by manufacturing plant. Took and defended numerous expert and lay witness depositions, argued two motions, obtained dismissals in a substantial number of cases, and favorably settled remaining claims after approximately one year of litigation. Negotiated with insurance carriers for coverage of 100% as defense and indemnification costs.
• Defended class action by 2000 residents in relation to release of chlorine gas from pulp and paper mill. Obtained dismissal of most claims. Settled remaining claims. Successfully negotiated insurance coverage for indemnity and defense costs.
• Successfully defended California OSHA claim for PCB exposures at plant in California to employees and negotiated significant narrowing of remedial activities required by California OSHA.
• Represented client, along with two other PRPs, in multi-million dollar remediation effort along the shores of Lake Superior in the Upper Peninsula of Michigan regarding wood treatment and charcoal facility contamination. Successfully developed and implemented strategy for dealing with state and federal regulators, local municipality, and county regarding remediation issues, local university regarding contamination on university property, and successfully prevented any significant individual personal injury claims.
• Participated on behalf of client with three other PRPs in claim brought by State of Michigan and United States involving remediation of 57 miles of Kalamazoo River in Michigan from alleged PCB contamination from discharges from pulp and paper mills. Developed and implemented a strategy to prevent class action from being filed. Negotiated resolution with numerous riparian property owners for property damage and personal injury claims.
• Participated on behalf of client with three other PRPs in claim brought by State of Michigan and United States involving remediation of 57 miles of Kalamazoo River in Michigan from alleged PCB contamination from discharges from pulp and paper mills. Developed and implemented a strategy to prevent class action from being filed. Negotiated resolution with numerous riparian property owners for property damage and personal injury claims.
• Represented client as plaintiff in property damage and lost profit litigation against major U.S. corporation in North Georgia obtaining $20,000,000 verdict after 3-week jury trial regarding PCB damage to client's property.
• Litigated as primary counsel numerous (more than 20) toxic tort claims involving hazardous waste or solid waste disposal sites wherein surrounding residents were alleging property damage and personal injury from materials disposed at sites. Defense groups consisted of as few as four other parties and as many as 200. Attended, took, and defended numerous depositions of expert and lay witnesses, negotiated with plaintiffs' attorneys, successfully resolved hundreds of claims on favorable basis for client.
• Successfully defended $10,000,000 property damage case involving alleged perchloroethylene release to shopping center property from client's delivery activities. Attended, took, and defended numerous lay and expert witness depositions. Prepared and argued three motions for partial summary judgment on various issues. Obtained defendant's verdict after one-week trial.
• Represented client in $200,000,000 penalty case brought by United States alleging vinyl chloride releases from large chemical plant in Louisiana. Attended, took, and defended numerous depositions of lay and expert witnesses. Supervised massive discovery response. Successfully negotiated resolution with government for penalty under $10,000,000. Successfully developed and implemented plan to prevent claims by surrounding property owners regarding vinyl chloride releases.
• One of two primary outside counsel for multi-defendant global environmental insurance coverage litigation for major pulp and paper manufacturer against 18 primary and excess carriers. Took and defended numerous lay and technical depositions. Involved in negotiations with numerous carriers and successful settlement of claims on behalf of client resulting in multi-million dollar award to client.
• Represented defendant in a toxic tort lawsuit filed in Salisbury, North Carolina, against numerous defendants alleging claims of air and ground contamination resulting in a cancer cluster in a nearby neighborhood. Sought contractual indemnification from Chevron USA, Inc., and insurance coverage from Cincinnati Insurance Co., UTICA Insurance Co., and the Guaranty Trust for Reliance Insurance Co.
• Represented a group of 11 oil production and distribution companies in a toxic tort action involving a petroleum tank farm. In the course of this representation, defeated a motion for class certification, obtained an order dismissing the plaintiffs' 300+ individual claims for medical monitoring and strict liability, and ultimately settled the matter.
• Representing a group of 9 oil production and/or distribution companies in a proposed state-wide class action lawsuit involving the use of the gasoline additive methyl-tertiary butyl ether, otherwise known as MTBE. The Firm successfully defeated class certification and settled the matter.
• Supervised the defense of numerous personal injury cases involving exposure to vinyl chloride, including development of the defense to claims that participation in trade association activities constituted a conspiracy in furtherance of the acts leading to exposure to the chemicals.
• Defended a large herbicide manufacturer in 2000 cases relating to alleged auxin contamination by the client's tobacco fertilizer.
• Represented a major oil company in a lawsuit filed by approximately 100 plaintiffs against the owners and operators of a Road King Truck Stop in Laurinburg, North Carolina. The plaintiffs alleged numerous personal injury claims, including cancer, increased risk of cancer and fear of cancer, as well as property damage claims.
• Represented defendants in an action filed by approximately 40 neighboring property owners for alleged personal injury and property damage resulting from the construction and operation of a coal-fired cogeneration facility in a residential area.
• Represented a national friction products manufacturer in responding to thousands of asbestos cases nationwide involving toxic tort, products liability, and conspiracy claims. Successful motions practice resulted in favorable dispositions. Insurance coverage successfully litigated.
• Defended personal injury and property damage claims against a pesticide company in multiple cases involving the application and use of pesticides.
• Defended building materials manufacturers in Georgia property damage litigation by building owners. This case established the principle that the statute of limitations for property damage claims in Georgia is four years from the date of the injury, rather than from the purported discovery of the injury, resulting in dismissal of all such claims with prejudice.
• Served as co-counsel in a toxic tort suit currently pending in Louisiana in which approximately 400 contract workers filed suit against our client, a large chemical manufacturer, alleging harmful exposures to toxic chemicals accidentally released at the client's plant in Louisiana.
• Served as coordinating counsel to manufacturers of solvents and cleaning products in toxic exposure claims and developing an internal risk management program for those clients.
• Defended a foundry owner against several hundred silicosis exposure claims.
• Defended a foundry owner against several hundred lead exposure claims.
• Represented a world-wide chemical manufacturer and its Georgia subsidiary against claims that workplace chemical exposures in a circuit board facility caused severe birth defects in children.
• Represented exterminating companies in cases in which claims that personal injury resulted from, and homes were rendered uninhabitable by, the illegal spraying of chemicals.
• Defended a large chemical manufacturing company from numerous bodily injury and class action claims based on releases of a vesicating agent from a chemical plant.
• Defended a gas pipeline company from property damage claims based on alleged PCB releases from a pipeline.
• Underground Storage Tanks Cases: Represented parties in hundreds of cases alleging property damage and personal injury relating to underground storage tanks used to store gasoline. Clients in these cases include Amoco, Crown, Exxon, Sun, Texaco, Unocal, and various regional petroleum marketers. Many of these cases involve claims for personal injury, increased risk of cancer, fear of cancer, and property damage.
• Represented an international fish meal broker in a suit by Holly Farms poultry for PCB contamination of several million pounds of poultry which had to be destroyed because they contained PCB's above FDA tolerance. Co-defendants were the Port of Wilmington, into which the anchovy fish were imported; the Peruvian government, which supplied the fish; and the feed manufacturer, which used the fish (in ground up form) in making chicken feed sold to Holly Farm growers. After approximately 40 depositions and a great deal of "environmental sleuthing," we established that the contamination came from leaking heaters in the Port of Wilmington warehouse where the fish were processed into fish meal.
• Represented Ralston-Purina, as plaintiff, in a case for substantial damage to turkey flocks in North Carolina as a result of contaminated poultry feed (unrelated to the case above). The contamination was determined to have come from a tank truck that delivered rendered fat which was used in the feed. The tank truck had not been properly cleaned, and thus the fat was contaminated with a chemical from a prior delivery. The case went to trial and was settled favorably to the plaintiff after several days of trial. Chemical detective work was key to the successful outcome.
• Insurance Coverage matter: Abex Corp. v. Maryland Casualty Co., et al. The firm represented the policyholder in this litigation in the federal district court in the District of Columbia in which we obtained favorable rulings on the insurance carriers' duty to defend the plaintiff in thousands of asbestos-related bodily injury claims.
• Insurance Coverage matter: Industrial Indemnity Insurance Co. v. Crown Pontiac, et al. and Federated Mutual Insurance Co. v. Ragatz and Kenyon. The firm represented several policyholders in these consolidated declaratory judgment actions filed by their insurance carriers in federal district court in Florida. The carriers sought a declaration that they owed no duty to defend or indemnify their policyholders for contamination at a Superfund site in Florida. Just before trial, we entered into a favorable monetary settlement on behalf of the policyholders.
• Insurance Coverage matter: M. A. Industries v. Maryland Casualty Co., et al. The firm represented a policyholder against four insurance carriers that sold comprehensive general liability policies to the policyholder from 1974 to 1986. We sought defense and indemnity costs arising out of the cleanup of a Superfund site in Pennsylvania. In July 1993, the district court granted M.A.'s summary judgment motion on the insurers' duty to defend, after which all four carriers quickly settled on terms favorable to our client.
• Insurance Coverage matter: City Insurance Co. v. Lynchburg Foundry Co. The firm represented a policyholder in defending a declaratory judgment action filed in federal court in Virginia. The carrier sought a declaration that under a comprehensive general liability policy, it did not owe a duty to defend underlying toxic tort claims because those claims were governed exclusively by the Virginia Workers' Compensation Act. The court granted our motion for summary judgment, finding that the insurer did owe a duty to defend the underlying claim and ordering reimbursement of the costs of defense.
• Insurance Coverage matter: Tristate America v. Insurance Company of the State of Pennsylvania, et al. In 1995, the firm brought suit in a Georgia federal district court on behalf of Tristate America, a limited partnership, against two insurance carriers seeking coverage for over $2 million in losses resulting from the accidental commingling of warehoused peanuts with a rodenticide. The key issue in this dispute was whether the so-called absolute pollution exclusion in Tristate's first-party property insurance policy precluded coverage for this loss. The litigation recently settled on terms very favorable to Tristate.
• Insurance Coverage matter: Boardman Petroleum, Inc. v. Federated Mutual Insurance Co., et al. The firm represented an oil company in a declaratory judgment action brought in federal court in Georgia against two general liability carriers. The Court ruled in our favor on numerous issues including trigger and the pollution exclusion. This litigation resulted in two decisions from the United States Court of Appeals for the Eleventh Circuit -- one on choice of law in the declaratory judgment context and another, following a decision by the Georgia Supreme Court, on the "owned property" exclusion.
• Other Matters. In addition to the above litigation, the firm has filed friend-of-the-court briefs on behalf of its corporate clients in two important coverage cases in Georgia: Claussen v. Aetna Casualty Co. , in which the Georgia Supreme Court ruled that the qualified pollution exclusion clause does not preclude coverage under comprehensive general liability policies for losses caused by gradually-occurring pollution, and Atlantic Wood Industries, Inc. v. Lumberman's Underwriting Alliance, et al., in which the Georgia Court of Appeals held that the costs of government-ordered cleanups of hazardous waste sites are recoverable "damages" within the meaning of standard-form CGL policies.
• The firm has also represented, or is currently representing, dozens of corporate clients in negotiating settlements of toxic tort insurance coverage disputes with their insurers without resorting to litigation.