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Prosecution & Counseling

Already the market leader in patent litigation, Fish readily applies the same expertise to other areas that call for science-intensive, technology-intensive, or expert-intensive work, including:

  • Product liability cases that are often brought by large groups of plaintiffs as class actions and mass torts and allege an injury caused by a defective drug, device, or other product
  • Regulatory actions that concern compliance with the requirements of administrative and regulatory agencies, including the FDA and the EPA
  • Consumer claims that concern consumers’ rights and accuracy of information in the marketplace
  • Unfair competition claims that concern unlawful, predatory, or deceptive business practices
  • Trade secret/employee mobility claims that concern improper use of a company’s proprietary confidential information and often arise in the context of higher-level employees leaving for another company
  • Qui tam and False Claims Act cases that concern whistleblower claims
  • Disputes arising out of complex technology joint ventures
  • Breach of contract that concerns technical issues such as specifications or design and operation of a product

Fish’s understanding of the scientific and technical issues, the client’s business, and the reality and trends in the industry is unparalleled.  Indeed, Fish helps a wide spectrum of clients, both in high-stakes litigation and smaller matters, always providing the same excellent level of service.

Fish brings to the table an unparalleled ability to understand the issues that are subject to expert opinion.

Fish is the expert on experts. Expert evidence can be front and center in any case, but it becomes crucial in scientific and technology-intensive cases. The complexity and expense associated with finding, preparing, and correctly using the right experts can be high. Efficiency calls for a firm that has extensive practical experience in this area, as well as an ability to understand the subject matter of the experts’ opinions. Because of Fish’s science and technology-intensive expertise, not to mention its approximately 100 Ph.D.’s worldwide, Fish brings to the table an unparalleled ability to understand the issues that are subject to expert opinion, understand how to attack the opposing party’s expert opinions, and hire the right experts for any case. Fish attorneys work with experts on a regular basis and have amassed a wealth of experience in every aspect of expert evidence:

  • Finding, vetting and retaining the best experts for the case
  • Working with the experts through the technology and science issues to develop a strong and credible position
  • Preparing the experts for deposition and trial
  • Excluding or undermining any unreliable opinions by the other side’s experts through Daubert motions or at trial

As a result of this experience, Fish has developed and can draw on a rich internal database of experts that can help expedite the expert search and preparation and curb associated costs.  Fish does not merely rely on expert search firms—Fish undertakes extensive research to determine who is the very top in the field. Because of Fish’s reputation and grasp of the science and technology, Fish is able to retain the ideal expert for the case, even if it is one who would not typically be involved in litigation. It’s what sets Fish apart, and it’s what helps us out-match our competitors and win in expert-intensive litigation.

Representative examples of Fish victories for its clients in science/technology-intensive and expert-intensive commercial litigation:

  • In re Fresenius GranuFlo/NaturaLyte Dialysate Products Liability Litigation. Fish successfully excluded the study that was key to the opposing experts’ opinions, won the bellwether trial and reached global settlement. Fresenius’ Chief Medical Officer wrote a memorandum which he distributed to medical directors at Fresenius clinics. In the memorandum, he alleged that a study he had commissioned demonstrated that Fresenius’ acid-concentrate products GranuFlo® and NaturaLyte®, which are used during dialysis, were causing patients’ serum bicarbonate levels to rise, which in turn was causing electrolyte imbalances leading to sudden cardiac arrest and death. Based on the memo, the FDA issued a Class I recall of the products, based on its belief that the products could result in serious injury or death. As a result of the recall, Fresenius, represented by Fish, was sued by over twelve thousand plaintiffs alleging that Fresenius’ GranuFlo® and NaturaLyte® dialysate products caused cardiac death in hemodialysis patients. In a case involving over forty-five experts, the Fish team won a Daubert motion to exclude, as unreliable science, the faulty internal study linking Fresenius’ products to increased risk of cardiopulmonary arrest that kicked off the entire case. Then, with the assistance of a nationwide team of top experts gathered by Fish, our team broke down the science for the jury and walked them step-by-step through the plaintiffs’ faulty chain of causation, resulting in a defense verdict of no causation at the first and only bellwether trial and a favorable global settlement shortly thereafter. On the regulatory front, within a few months, the Fish team demonstrated to the FDA that the underlying science
  • Heisler v. Maxtor Corporation, Northern District of California. Products liability/consumer laws litigation where Fish won summary judgment after excluding the opposing expert’s opinion.  Four plaintiffs brought a class action alleging defects in computer hard drives.  The defendant, represented by Fish, filed a motion for summary judgment and a motion to exclude the plaintiffs’ technical expert’s opinion as unreliable.  The court granted both motions, ending the case.

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