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  • Merrell Dow v. Havner: While Daubert spoke to the admissibility of expert testimony under the Federal Rules of Evidence, many state courts of last resort focused on fashioning like rules, following the lead of the U.S. Supreme Court. In this case, Mr. Marston, again representing the manufacturer of Bendectin, urged that the Texas Supreme Court adopt the rationale of Daubert, and overturn a $33 million dollar verdict which was based on unreliable “meta-analysis” of epidemiological data on congenital birth defects and in vitro animal studies. The Texas high court agreed, reversed the judgment, and ordered that judgment be entered in favor of the manufacturer.

  • Toole v. McClintock: At the beginning of the nationwide breast implant litigation, the manufacturers were reeling from a wave of bad publicity and adverse verdicts. In this case, where Mr. Marston represented appellant Baxter Healthcare Corporation, the 11th Circuit reversed a multi-million judgment, which helped turn the tide against a swell of judgments in plaintiffs favor.

One of the first appeals in California of a breast implant case was handled by Mr. Marston, resulting in the affirmance of a judgment in favor of his client. Mr. Marston also successfully represented the manufacturer of the leading anti-anxiety therapy when the California Court of Appeal affirmed a judgment following a jury trial for the defendant. Mr. Marston also represented the parent corporation of a major breast implant manufacturer in proceedings around the country concerning whether the parent was a proper party-defendant in those cases. He is a member of the firm’s product liability practice group.

Mr. Marston has also represented the defense in mass tort litigation involving tobacco (including a published California appellate opinion on the controversial limitations/revival statute), asbestos, benzene exposure litigation, as well handling suits involving heavy machinery, hand held small tools, and environmental contamination. After preparing a summary judgment motion for a manufacturer of a wood-working table router on the grounds of post-sale modifications, the plaintiff accepted a settlement from Mr. Marston’s client of less than one tenth of further costs of defense.

Professional Liability Experience

Another area of emphasis in Mr. Marston’s practice has been professional liability, particularly in the representation of attorneys. A disturbing trend in legal malpractice litigation has been the willingness of clients to sue counsel as “safety nets” for the clients’ endeavors, to insulate them from the risk of transacting business. Mr. Marston successfully represented counsel in a suit brought by an adversary who claimed a conspiracy between counsel and its client harmed the adversary. In the definitive published opinion on the California statute that requires judicial prescreening of such claims, the Court of Appeal adopted Mr. Marston’s construction of the statute, and reversed the trial court’s determination to permit the suit to proceed against Mr. Marston’s client. Berg & Berg Enterprises, LLC v. Sherwood Partners Inc.

In both trial and appellate forums, Mr. Marston has represented lawyers in such varied matters as negligence, malpractice, malicious prosecution, fraud claims, as well as litigation concerning the California “anti-SLAPP” statute, which requires an early merits evaluation of suits based on activity that petitions governmental entities, and attorney disqualification motions. He has tried professional liability actions for lawyers involving alleged securities wrongdoing, and malpractice in corporate formation. He has been retained to counsel and represent attorneys even before a professional liability suit has commenced, to assist in the management of risk and exposure in cases where malpractice allegations may ultimately ensue. He is a member of the firm’s professional liability practice group.

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