In the News The Am Law Litigation Daily

Litigator of the Week: Andrew McGaan (K&E), Kenneth Parsigian (Goodwin Procter), Diane Sullivan (Dechert)

This week's Litigator of the Week honor goes to the triumvirate of lawyers who were central to the successful defense of tobacco companies that were sued by the city of St. Louis and 37 hospitals for $455 million (plus punitive damages) for the cost of treating indigent patients for smoking-related illnesses.

On April 29, after more than 12 years of litigation, three months of trial, and seven days of deliberations, a St. Louis Circuit Court jury returned a complete defense verdict for the tobacco companies, which included Phillip Morris (a unit of Altria Group) and R.J. Reynolds Tobacco Co.

Goodwin Procter litigation partner Kenneth Parsigian, who represented Phillip Morris and has worked on the case for a decade, used pretrial motions to whittle the case down from $7 billion in claims. Andrew McGaan, a partner at Kirkland & Ellis who represented R.J. Reynolds and other defendants, spearheaded the defense argument that the tobacco companies weren't negligent for failing to reduce the nicotine content of cigarettes, and took the lead in jury selection. And Dechert's Diane Sullivan, known for her representation of Merck & Co. in Vioxx litigation, handled arguments that the hospitals didn't suffer any damages.

"It was fractious at times because there were a lot of strong willed people," said McGaan about all the lawyers on the defense side. "But ultimately we were able to work together to divide roles based on people's strength and simplify the case."

That simplification included winning a statue of limitations ruling that shortened the time frame for which plaintiffs could seek damages. Defense lawyers also successfully attacked plaintiffs' efforts to seek recovery of the difference between Medicaid reimbursements and the higher rates that some patients paid for treatments.

"We had this ten year strategy of paring the case down with a whole host of motions," said Parsigian. "The judge was very receptive to good legal arguments to pare down the case, but not receptive to legal arguments that would kill the case."

When the trial got under way, Dechert's Sullivan and Kirkland's McGaan made opening arguments for their clients. As it progressed, the two lawyers focused less on defending their clients and more on attacking the plaintiffs' arguments. McGaan cross examined an expert for the plaintiffs who asserted that cigarettes were defective in part because the companies could have removed nicotine from them in 1963. Dechert's Sullivan questioned an expert witness for the defense who testified that hospitals aren't damaged by treating indigent patients because they receive subsidies and tax breaks.

In the end, the damages issue was moot. A majority of the jury concluded that the cigarettes weren't defective and that the companies weren't negligent in making them. Said Sullivan, "Cigarettes do what everybody expects them to do."