This story was originally published on InWeekly and features a profile on one of our primary hosts Mike Papantonio, America’s Lawyer, discussing the many accomplishments of the law firm Levin Papantonio. In the article, Papantonio talks about how the courtroom is the great equalizer, and therefore, great attorneys do not fear corporate giants.
Last October, Carla Bartlett of Guysville, Ohio was awarded $1.6 million in the trial of a lawsuit that alleged that C8, a chemical used to make Teflon, from a DuPont Co. plant contaminated drinking water and contributed to her contracting kidney cancer.
Some 3,500 people claim they became ill after the company dumped C8 into the Ohio River and their drinking water from its Washington Works plant near Parkersburg, West Virginia. Dupont’s attorneys argued that its plant workers drank the same water as residents. Of its eight employees with cancer in 1989, only one had worked at length with C8.
Arguing Bartlett’s case was attorney Mike Papantonio of the Pensacola-based firm of Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A.
Earlier that same month, the U.S. Department of Justice announced a final settlement with British Petroleum of $20.8 billion for its role in the disastrous 2010 Gulf of Mexico oil spill, raising the total from the initial $18.7 billion settlement announced in July.
The settlement was the largest environmental settlement — and the largest civil settlement with any single entity — in the nation’s history.
One of the four members of the Plaintiffs Executive Committee, as well as class counsel for both the Economic and Property Damages Settlement Class and the Medical Class, was Brian Barr of Levin Papantonio.
In August, Bayer agreed to set aside almost $57 million in a fund to settle Yasmin and Yaz claims outstanding as part of a multidistrict litigation program in Illinois federal court and Yasmin/Yaz lawsuits filed in Pennsylvania, New Jersey and California state courts.
Yaz, Yasmin and Ocella birth control lawsuits filed against Bayer were consolidated in 2009 into a mass tort program in Pennsylvania, a federal multidistrict litigation, and consolidated litigations in New Jersey and California. At its height, more than 12,000 files with multiple plaintiffs per file had been brought in the four jurisdictions, making it the largest multidistrict litigation in the nation.
Bellwether trials in Philadelphia and the MDL were gearing up in 2012, but the litigation was stayed as Bayer began to settle thousands of blood clot claims involving pulmonary embolisms, deep vein thrombosis and/or gallbladder injury. In total, Bayer has paid about $2 billion to settle the claims.
Serving on the MDL Plaintiff Steering Committee and co-chair of the Discovery Committee on the behalf of the victims was Tim O’Brien of Levin Papantonio.
Not a bad year for the Pensacola-based law firm. The type of year that adds to its reputation as the “Giant Killer.”
Stacked Deck
Handling cases against insurance companies was a trial lawyer’s primary role for decades. His client was injured, and the lawyer dealt with an insurance company to make sure that that person got compensated for the wrongdoing that another individual did.
However, over the past 30 years, Corporate America has become more and more empowered.
“They’ve become empowered to the point to where the amount of money they control, the amount of influence they wield is so remarkable that they set standards for politics, social change and cultural change,” attorney Mike Papantonio told Inweekly.
The shift called for a new kind of law firm, one that that didn’t go after insurance companies, but one that had the resources to go after the corporations – not for a single injury but for conduct that caused thousands of injuries.
“Whether it is a case where a company has created a pharmaceutical that’s killing or crippling women and children and everybody that takes their pill, or whether it’s Wall Street that is stealing billions of dollars from ‘mom and pop’ pension programs,” said Papantonio. “The role and the challenge for the 21st-century attorney is to know how to go to war with them in their backyard.”
He said, “Right now in America, there’s only a handful of us, maybe 20 firms or so, who do that. The lawyers who do what I’m describing, which is to go after the Goliaths, I can count on my fingers and toes.”
Battling mega corporations that make billions around the world has unique challenges. Government agencies fail to enforce the law. The judgeships are handed to lawyers who often come from the corporate defense sector. National media has been reluctant to report corporate wrongdoings. Corporate CEOs focus on short-term profits and take more risks, weighing the potential profits versus possible fines and civil cases.
“We have no help most of the time from the government, which is supposed to be looking out for the little guy,” said Papantonio. “The FDA, SEC and EPA, by all standards of evaluation, have become dysfunctional where it comes to taking care of the interest of the average American.”
He blamed the dysfunction on “a revolving door” that makes regulators unwilling to do their job because they are seeking future employment with those companies that they are overseeing.
He said the BP oil spill best illustrated his point.
“One reason the Deepwater Horizon explosion happened was Minerals Management Service (MMS), which was supposed to be protecting citizens along the coast from things like explosions and oil spills, had been commandeered by the oil industry to the extent that the oil industry was holding parties for mineral management where they were bringing in prostitutes, they were bringing in drugs and they were spreading around money to people in MMS,” said Papantonio.
He added, “When we first began prosecuting the BP case, we found no less than a dozen violations that had been committed almost every week by BP for years, and MMS took no action.”
Sadly the BP story isn’t unique, according to Papantonio. He said, “I apply the BP compromising of its regulators to a dozen pharmaceutical and environmental cases that we have handled over the years—DuPont Chemical, Dow Chemical, Pfizer, Merc Glaxo.
He said another obstacle is that the judiciary has become so pro-corporate. He said he has seen little difference between the appointments to the bench under the George W. Bush and Barack Obama administrations.
“Obama’s appointments to the federal bench are good judges on social issues, but where it comes to issues that involve people’s financial security, they’re terrible for the most part,” said Papantonio. “Most of his appointments are lawyers that have come through spending their careers representing corporate America. Very few of them have ever had any common ground with consumers or the average American.”
He had few kind words for the national media.
“The media has been purchased,” he said bluntly. “Why would Boeing or McDonald Douglas advertise on ABC or any of the networks? Are they trying to sell jets and tanks and missiles to the American public? Or they simply buying influence by spending the advertising dollars in a way that caters to the media?”
Papantonio said, “The media is reluctant to tell a story if that story hurts their advertisers. That is the scenario that plays itself out in pharmaceutical cases, in Wall Street cases and in environmental cases. “
Why the rise in mass tort cases? Papantonio pointed to the new corporate culture in America. “It used to be that a CEO would stay with a corporation for 25 to 30 years, virtually most of their career,” he said. About 20 years ago, they came out with a new formula. The new CEO has what I call ‘short-term’ vision. They only stay with a company three to five years.”
He explained this new breed of CEO is only moving through the company.
“The CEO takes all the risks necessary to increase his bottom line for the short period that they’re there,” he said. “If they create a drug for example that injures thousands of people, by the time the company has to end up paying for all those injuries, that CEO has moved on to the next company and the new CEO then has to clean up the mess.”
The CEO is focused on the immediate bottom-line. Papantonio said, “The problem is so bad that rarely are we in a fight with the corporation where we don’t discover documents where the corporation is calculating how much money will they generate each year; and what would be the cost to pay for human life loss when they get sued. Those calculation documents are virtually found in every company in every lawsuit.”
He said, “The calculation document generally says we’re going to make 20 billion dollars, and we’re going to have to pay out in the legal costs one billion, so we make 19 billion dollars, that’s a pretty good day’s profit.”
While the corporations are prepared to spend millions, sometimes even billions, to defend against lawsuits, the trial attorney doesn’t have the financial resources to devote to a case, which is where Levin Papantonio steps in.
Someone visits an attorney. They have physical problems related to a pharmaceutical, or it might be environmental.
“The Dupont-C8 case was an environmental injury, and people started showing up with cancer,” said Papantonio. “A local attorney thought it was odd that all the people in this one community were suffering from cancer. He did an incredible job as a single lawyer simply handling the case by himself.”
Knowing that Dupont had armies of law firms in line to defend the corporation, the attorney knew he needed a trial team.
“The lawyer that brings a case like that, that discovers a pharmaceutical that’s killing people or an environmental tragedy that’s killing people, causing cancer or injuries, will tell you, ‘I did all this work, but now I don’t know what to do with it.’ That’s where our firm comes in,” said Papantonio.
“Our firm comes in at the point that somebody now has to take it to trial and confront a huge corporation that has thousands of lawyers,” he said.
While the single lawyer may have done the basic legwork and has a semi-truck trailer full of documents and scientific testing, he still isn’t ready to take on a corporation like Dupont or Bayer.
“When we come in, we add about three more trailer trucks to that load of documents. We take what he has; we try to make it better. We take the depositions; we do the discovery,” said Papantonio.
He added, “A typical case such as DuPont, for example, for us to be having to review 12 million documents is not unusual at all. We have a unique system to make our way through those millions of documents with a system that we devised.”
Papantonio said, “The sole practitioner and most law firms don’t have an army of investigators and young attorneys that knock on every door and kick over every rock. They don’t know the experts to bring in.”
He added, “That’s what we bring to the table immediately, as soon as that lawyer comes to us and says, “I have this big case.”
By the time the case is brought to trial, the firm may have spent $8-$10 million.
Battling Giants
Papantonio said there are similarities with every mass torts lawsuit, particularly the British Petroleum, Bayer and Dupont-C8 cases.
“You have the part where somebody makes a decision based wholly on greed,” said the attorney. “Somebody’s trying to make an extra dollar or somebody is trying to take a shortcut, and so it always begins there.”
Most people believe that state or federal government has their best interests in mind and is monitoring the corporations on a day-to-day basis. Papantonio said that doesn’t happen.
“The truth is there is nobody watching,” he said.
“For example in the C8 case, one would think the EPA was making sure that the water that people were drinking was safe,” said Papantonio. “In fact, it has so much C8 in it that the load of that C8 is going to be in these people’s blood for 25 years. While it’s in the blood, we know it causes testicular cancer, kidney cancer, pituitary cancer, and a whole host of other illnesses.”
He said that the 70,000 people in the Ohio River area drank water contaminated with C8 every single day.
“After it was clear about what DuPont had done, even the Department of Justice, who we believe is on our side, chose to totally ignore it. At this point, nobody has been investigated, nobody has been prosecuted, nobody has even been cross-examined about what DuPont did,” he told Inweekly.
No individual would have been allowed to walk away from such behavior. He said, “If the average American went out and poisoned their neighbor’s drinking water, they’d be imprisoned for 20 years. These people poisoned the drinking water of 70,000 people, and the Department of Justice did nothing.”
But that was only one of the challenges in trying the Dupont-C8 case.
“We believe that once the story’s made known to the public, the media is going to pick up and, at least, do the kind of investigation that needs to be done,” said Papantonio. “Often the media won’t pick up the story until the case is tried, and we win the case.”
He said that Dupont had been dumping C8 in the Ohio River for years at a rate of 50,000 pounds a year.
“The media had no interest in doing it in this particular case, because DuPont had such a huge influence from an advertising standpoint,” he said.
Papantonio also blamed the “dumbing down” of the national media for difficulty and informing the public of corporate wrongdoing. The newsrooms no longer have reporters willing to take the time to understand the stories as complicated as this.
He said the fourth part of any mass torts case is the calculations made by the corporation: Profit, less possible government fines, less legal fees fighting lawsuits, less settlements and court judgments, equals net profits and CEO bonuses.
According to Papantonio, the corporations hire as many defense lawyers as they can and delay the trial as long as possible. He said, “The longer they hold onto their money, the longer they make interest on that money. Once they start making payments, they lose the value of that money, so they’re no longer making interest. That’s always the case in every single complex case we’ve ever handled.”
Of the BP, Bayer and DuPont cases, the one that Papantonio personally tried, C8 in Columbus, Ohio had the smallest outcome. Why was it important enough for him to be involved?
“The C8 verdict was so important to a fairly low number of $1.6 million, because it established the fact that DuPont had put a chemical into 70,000 individual’s blood—
God didn’t put C8 in their blood, DuPont did—and that every one of those people has a risk of getting cancer and a whole host of other physical injuries,” he said.
Papantonio explained, “The $1.6 million was really all about that. It wasn’t about the fact that this woman 20 years ago had had cancer. It was about the fact that the jury understood that there’s no corporation in America that should be able to say, ‘I’m going to put something in your blood or your body without your permission,’ especially when they understood how dangerous the product was. The $1.6 million was based almost wholly on that.”
The verdict set the stage for the trials on the behalf of the other 3,500 people who have filed claims in the Ohio Valley that the Levin firm is handling. The first case was difficult for his firm to try. Papantonio admitted it wasn’t his strongest C8 claim, but he didn’t have a choice.
“That case was actually picked by DuPont,” he explained. “In the process of complex cases, there’s a system where the defendants get to pick the trial. This was the first one to be tried, and it was actually the one DuPont chose to try. We didn’t choose to try that case; they did.”
Dupont and Papantonio both understood the risk in this first trial.
Had he lost the trial, he said, “We would have put at risk the claims of 3,500 other people and lost about $6 million spent on preparing their cases.”
Papantonio added, “You never want to start a test case, trying the case that the defendant picks. That’s where the rubber meets the road between people who have the stomach for this and people who don’t. I wasn’t excited about going to trial in this case, but I realized we had no alternatives, and 3,500 people could be affected if it went bad.”
The attorney said similar challenges came up in the BP and Bayer cases.
“BP didn’t want to spend the money to have a protective mechanism that would have avoided the environmental catastrophe that it created in 2010,” said Papantonio. “They chose not to do it, because it was all about greed and money.”
He said that while people in Pensacola may have thought the media was telling the ugly story about the oil spill, BP was spreading its message across the country that everything was fine on the Gulf Coast.
“BP was buying, I believe at one point it was $6 million in advertising a month, $6 million a month, and the exchange was ‘we’ll buy advertising from you, but you don’t tell the whole story.’ That was very typical in mainstream media, what I call ‘corporate media’,” he told Inweekly.
He added, “BP had, at one point, 35 different law firms, and I think it was 35 major law firms and 10 major PR firms from all over the world working to try to prevent victims from recovering. They had people in the White House who were trying to interfere with the prosecution of the people who’d done wrong here.”
In the Bayer case, Yaz was developed to prevent pregnancy, but corporate executives made the decision to market for other things.
“The CEOs and the sales people with Bayer made a decision that they couldn’t make enough money just selling the product for birth control, so they started lying to the American public and telling them it was good for acne, it was good for weight loss and it was good for PMS,” said Papantonio.
“Every bit of that was a lie,” he said. “That lie continued for five years, completely unchallenged by the FDA until a handful of lawyers made the FDA focus on it, and made Bayer go out and spend money to retract the lie that they’d been telling for so many years.”
He said that research found that women between the ages 18 and 35 who took the drug were six times more likely have a stroke than the other birth control pills that were on the market.
Since Bayer was considered, what Papantonio called, “a coveted source of money by the marketing managers working for corporate media,” the story was never told in the U.S. The Levin firm got the Yaz story told in Germany, where Bayer is headquartered.
“ I was interviewed for documentaries in Germany, and the only reason the case ended up settling was because of the political pressure they felt, not in the United States, but in Germany,” he said.
The Equalizer
The cards appear to be stacked against the trial team. The corporations can put thousands of lawyers on a case. They have limitless money to hire virtually anybody that they need, to say anything they need. They have the money to influence government and national media. How do you confront that?
“In a courtroom, we’re all equal,” said Papantonio. “If we do our job, the courtroom is the equalizer.
In a typical trial, two or three from Levin Papantonio will be sitting at one table. At the other table will be a half a dozen lawyers sitting and another hundred lawyers behind them in a courtroom.
“It honestly comes down to a giant-killer mentality,” said Papantonio. “If you’re afraid of giants, you’ll always be running away from giants. If you understand that there’s no giant in a courtroom, then you understand that at the end of the day, that’s all you’re trying to do, is get into a courtroom.”
