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Product Liability MVP: Kirkland's Andrew McGaan

16 December 2011

Kirkland & Ellis LLP's Andrew McGaan has won over juries in emotionally charged cases against tobacco giants, winning wrongful death disputes and a 12-year battle waged by Missouri hospitals, earning him a place among Law360's Product Liability MVPs.

McGaan, who has also worked on restructuring and other commercial litigation, loves trying cases, he told Law360. He enjoys taking complex facts and constructing compelling narratives for juries, who can have preconceived notions about cigarettes.

"There is some significant drama that influences how the story gets told. Adversaries have a view that they can be more persuasive with juries because my client has been accused of causing harm to somebody," he said. "That presents a huge challenge."

McGaan has tackled this challenge by admitting weaknesses in his cases, being prepared — and thinking on his feet.
In the suit brought by 37 Missouri hospitals, McGaan turned a potentially embarrassing moment into an opportunity to drive home a key point for his clients, tobacco makers R.J. Reynolds Tobacco Co. and Brown & Williamson.

The hospitals sued major tobacco companies in 1998 to recoup money they allegedly spent on uninsured patients' smoking-related illnesses. In 2011, a jury ultimately sided with the tobacco companies in the high-stakes suit, which sought $455 million.

While the hospitals contended that uninsured smokers cost them millions, McGaan's team contended that the hospitals had never really believed that those patients hurt their bottom lines.

"We were arguing that this was cooked up the lawyers after the fact," he said.

At the long-awaited trial, McGaan displayed a hospital's financial statements on a large screen only to be told by that hospital's chief financial officer that one of the numbers was off by millions — an apparent typo.

"He kind of gleefully pointed it out" during his testimony, McGaan said.

McGaan asked the CFO to tell him the correct figure and then emphasized the fact that the executive noticed the mistake right away.

"You're the kind of CFO that would see that immediately," McGaan recalled saying. "What are you claiming for damages? How many times did you tell that to the board of directors? How many times did you walk in and say, 'Because of smoking, we're losing $2 or $3 million'?"

A typo had given McGaan a chance to bolster his point that lawyers had cooked up the damages.

"It was just one of those serendipitous things," he said. "It's a high-wire act. ... You just can't freak out about things."

McGaan had a chance to respond to another 11th-hour surprise representing McDermott International Inc. in a case brought by Citgo Petroleum Corp. over a 2001 oil refinery fire in Chicago.

Citgo had claimed that a defective pipe made by McDermott had caused the fire. And not long before trial, McGaan's team learned that the evidence was showing that the McDermott-made pipe had indeed caused the fire, he said.

"It looked pretty dire, having to admit upfront that the product was defective, it failed, [and] it caused the fire," McGaan said.

However, McGaan's team forged ahead with a case based on the premise that Citgo, which owned the refinery, had not adequately maintained and inspected its own facility.

"The owners of these refineries have huge responsibilities," he said. "They did a terrible job, and we went on and kept a case that was about that."

In 2006, a Cook County jury found that McDermott was less than 50 percent liable for the fire and apportioned the remaining liability to Citgo and ex-refinery owner Unocal Corp.

While Citgo sought more than $600 million, the jury knocked off roughly $250 million, according to McGaan. That trial allowed McGaan to devise a new defense strategy based on a last-minute change of events.

"All trial practice is about managing stress and surprises," McGaan said

McGaan's team encountered "enormous drama" in another product liability case in 1999 that required his team to parachute into Ellisville, Miss., a town of roughly 4,300. In that case, nonsmoking barber Burl Butler had died of lung cancer, and his estate blamed secondhand smoke for his death.

Butler's wife testified at trial, and her grandchildren ran up to the witness stand to comfort her, McGaan said. The trial risked emotionally slanting the jury against defendant Philip Morris, according to McGaan.

"We got a defense verdict there because we stuck to our knitting and showed what the science was and showed what the exposure levels really were," McGaan said. In emotionally charged trials, it's best to "shoot straight," have integrity and stick to the facts, he said.

"Then, you have got the chance to take the emotion out of the room and turn it back into a discussion about ... the facts," he said.

Andrew R. McGaan, P.C.

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