Strategies for Defending Conspiracy Claims in Mass Tort Litigation

Wynn M. ShufordLightfoot, Franklin & White, LLC

Birmingham, Alabama

Strategies for Defending Conspiracy Claims in Mass Tort Litigation

Wynn M. ShufordLightfoot, Franklin & White, LLC

Birmingham, Alabama

Why Do Plaintiffs’ Lawyers Love Conspiracy Claims?

Why Do Plaintiffs’ Lawyers Love Conspiracy Claims?

• Creates Therapeutic Opportunities to Leave Leaving Threatening Voicemails for Defense Counsel

Therapeutic VoicemailsVoicemail to Wynn

“… And let me assure you of one thing, the fact that ya’ll have accomplished a couple little things, don’t think that’s not goin’ go without some retribution, son.”

Therapeutic VoicemailsVoicemail to Wynn

“… And let me assure you of one thing, the fact that ya’ll have accomplished a couple little things, don’t think that’s not goin’ go without some retribution, son.”

Allows Plaintiffs Counsel to Use The “Word of the Day” in Correspondence

Words used to refer to me by plaintiffs’ counsel in mass torts cases:

Allows Plaintiffs Counsel to Use The “Word of the Day” in Correspondence

Words used to refer to me by plaintiffs’ counsel in mass torts cases:

• Mendacious• Disputatious• Audacious• Nefarious• Disengenuous

Why Do Plaintiffs’ Lawyers Love Conspiracy Claims?

• Creates Therapeutic Opportunities to Leave Leaving Threatening Voicemails for Defense Counsel

• Admissions of Co-conspirator Exception to the Hearsay Rule

Why Do Plaintiffs’ Lawyers Love Conspiracy Claims?

• Creates Therapeutic Opportunities to Leave Leaving Threatening Voicemails for Defense Counsel

• Admissions of Co-conspirator Exception to the Hearsay Rule

• Broadens the Scope of Defendants that Can Be Sued

Conspiracy Law Basics

• Under the law of most states, liability for civil conspiracy depends upon the existence of an actionable, underlying tort.

• Most states agree that a negligence cannot be the underlying tort.

Concealment as the Underlying Tort

• In most states, there is no cause of action for concealment from the public. Rather, there must be a duty to disclose in order to have liability for fraudulent concealment.

Cool Hand Luke Defense

[C]laims that a cigarette manufacturer has not warned of known product dangers are generally not cognizable as fraudulent concealment claims under Kansas law. Rather, they are cognizable as failure to warn claims. To hold otherwise would convert all product manufacturer's duty to warn claims into fraud claims. We do not believe Kansas courts would intend such a result.

Burton v. R.J. Reynolds Tobacco Co., 397 F.3d 906, 913 (10th Cir. 2005).

Does a Plaintiff Have to Prove the Elements of an Underlying Tort Against Each Defendant?

• YES - Chavers v. Gatke Corp., 107 Cal. App. 4th 606 (2003).

• NO - Nicolet v. Nutt, 525 A.2d 146 (Del. 1987).

Proof Required of Conspiracy• “[M]ere presence at the commission of a wrong, or

failure to object to it, is not enough to charge one with responsibility for conspiring to commit the tortious act.”

• “[I]f circumstantial evidence supports equal inferences of lawful action and unlawful action, then the claim of conspiracy is not proven.”

• Evidence of conscious parallel conduct is not enough to prove conspiracy.

Practical Application to Proof Normally Offered

• Similar warnings not enough to prove conspiracy

• Presence at a meeting does not prove conspiracy

• Ambiguous evidence does not prove conspiracy

Why Do Plaintiffs’ Lawyers Love Conspiracy Claims?

• Creates Therapeutic Opportunities to Leave Leaving Threatening Voicemails for Defense Counsel

• Admissions of Co-conspirator Exception to the Hearsay Rule

• Broadens the Scope of Defendants that Can Be Sued

• Puts the Focus on the Conduct of the Defendant, Rather Than On the Plaintiff

Why Plaintiffs’ Lawyers Want to Direct Attention Away From the Individual Plaintiff

Why Plaintiffs’ Lawyers Want to Direct Attention Away From the Individual Plaintiff

Jury Research: Knowledge and Control

Jurors compare plaintiffs and defendant’s knowledge and control. When a defendant is perceived to have had more knowledge and control than the plaintiff, the plaintiff is seen as more deserving and the defendant more blameworthy…It may seem counterintuitive, but knowledge and control contribute more to jurors’ decisions to punish than sympathy for the plaintiff, inflammatory documents, and poor witness behavior at trial.

Strategies for Defending Conspiracy Claims

• Early Dispositive Motion

Strategies for Defending Conspiracy Claims

• Early Dispositive Motion• Smoke Out the Conspiracy Allegation Early

Strategies for Defending Conspiracy Claims

• Early Dispositive Motion• Smoke Out the Conspiracy Allegation Early• It's Not a Small World After All

Strategies for Defending Conspiracy Claims

• Early Dispositive Motion• Smoke Out the Conspiracy Allegation Early• It's Not a Small World After All• Focus on the Scene of the Crime

The Distribution of InformationThe Distribution of Information

BASF Green Mountain Sub-Technical USM

Just Because You Are a Defendant Doesn’t Mean You Always Have to Be on the Defensive

“The best defense is a good offense.”

- Vince Lombardi