Litigation Practice
Capability Statement
The firm's litigation section consists of eight attorneys and three paralegals. Many of the other attorneys in BKBH also have appropriate skills for litigation and, dependent on subject matter, client, and need are available to assist in appropriate matters. Because many of our clients have multiple and complex problems we understand the wisdom of using a multidisciplinary approach which would include not only litigation but the firm's corporate, governmental and technical assistance to resolve issues.
Our attorneys have a broad-based, statewide practice in personal injury litigation. We have appeared in most, if not all, venues in Montana. We have represented numerous insurers and self-insureds (including numerous Montana cities and towns) in negligence and/or civil rights cases. Over the past eight years we have increased our defense of medical providers in medical malpractice cases, and employers in employment discrimination, wrongful discharge and workers' compensation cases. In conjunction with the natural resource section of BKBH, the litigation group has been involved in Superfund, toxic tort and general environmental litigation.
We are experienced in preparing comprehensive litigation management plans and accurately budgeting for the various phases of litigation. We work in a cooperative, trust relationship with our clients to ensure mutual participation in the strategic defense of each case. Alternative billing arrangements are available to best meet our clients' needs.
Our litigation section has demonstrated a capacity to handle complex lawsuits with multiple parties and tens of thousands of documents. Our attorneys and paralegals are experienced in document control management and have prepared hundreds of witnesses utilizing videotape and interactive deposition-preparation techniques. We use computerized legal research so our motions and briefs include the latest in legal developments. We are experienced in utilizing focus groups (similar to mock juries) to assess potential liability and damages. To the extent possible we attempt to utilize computer graphics, video presentations and projectors to enhance demonstrative exhibits during trial. We work in cooperation with our clients to determine the appropriateness of alternative dispute resolution mechanisms, including arbitration, mediation and settlement negotiation.
Representative General Litigation Cases Handles by BKBH:
Erickson v. Ash Grove (2005). Oliver Goe represented Ash Grove Cement Company in a case filed by a prior employee. Plaintiff argued that the intentional and malicious acts of Ash Grove led to an accident in which he suffered third degree burns and which left him with profound physical and emotional injuries. The case settled favorably for Ash Grove during a jury trial held before Judge Loren Tucker in Jefferson County.
Wadell & Reed, Inc (2005). Stan Kaleczyc represented Wadell & Reed in security class action litigation involving the alleged improper exchange of variable annuities. This matter was settled on terms favorable to Wadell & Reed.
Howard v. Thorne (2004). Dan Hoven and Sara Berg represented an emergency room physician in this medical malpractice case. A 12-0 Butte jury found no breach of the standard of care in connection with Defendant Physicians' emergency care and treatment of Plaintiff in August of 1997. The jury deliberated 2 ½ hours on the fifth day of trial involving allegations of improper treatment of epileptic seizures and unauthorized HIV testing in the Butte emergency room.
State of Montana v. Taylor (2004). David McLean represented an alternative livestock producer who was accused of allowing the illegal slaughter of the elk he was raising on his alternative livestock ranch. The case proceeded to trial in Fergus County, Montana. After three days of testimony, the case was presented to the jury for consideration. The jury deliberated for less than ½ hour and returned a unanimous verdict in favor of the alternative livestock producer. Undeterred by the jury's verdict, the State pursued a second claim against the livestock producer. The second case proceeded to trial, and after two days of testimony, a second jury again returned a unanimous verdict in favor of the producer after deliberating less than 1 hour.
Finke v. State of Montana (2003). Stan Kaleczyc and Kim Beatty successfully challenged on constitutional grounds a state statute limiting local municipal powers.
Parr v. Union Pacific Railroad Company (2003). Dan Hoven and Sara Berg represented the Union Pacific Railroad Company ("UPRR") in a FELA claim that was tried before a jury for 4 days. An allegedly injured section man, sued UPRR for a soft tissue injury to his neck and shoulders which occurred while utilizing a tamping tool on the job. This case settled favorably for UPRR right before closing arguments, on terms which had been offered months before trial had begun.
Dayberry v. East Helena (2003). Oliver Goe was lead counsel in this case where a diver brought a negligence suit against the City of East Helena for injuries sustained while diving off the diving board into the City’s municipal pool. The Court granted the City’s motion for summary judgment, agreeing that without expert testimony, Plaintiff could not establish a prima facie case of negligence or strict liability and that the theory of strict liability was inapplicable because a swimming pool is not a product. The decision of the District Court was affirmed by the Montana Supreme Court.
Zimmerman v. Continental Western Insurance Company (2002). Leo Ward represented the defendant, Continental Western, in an insurance bad faith case filed by a local business owner arising out of property damage claims. After a nine day trial, the jury deliberated for more than six hours and then delivered a defense verdict. The trial was before Judge Jeff Sherlock in Lewis & Clark County.
Montana Chamber of Commerce et. al v. Argenbright (2000). Stan Kaleczyc and Kim Beatty were successful in having declared unconstitutional a prohibition on corporate contributions and expenditures to ballet initiatives and referenda. Mr. Kaleczyc and Ms. Beatty were successful in the Montana federal trial court, in defending an appeal to the U.S. 9th Circuit Court of Appeals, and in defending a petition for writ of certiorari to the U.S. Supreme Court.
Park County v. The Burlington Northern and Santa Fe Railway Company (1999). Dan Hoven was local counsel in this significant environmental trespass case. Plaintiff claimed The Burlington Northern and Santa Fe Railway Company ("BNSF") dumped perchloroethene sludge for years in the Plaintiff's sanitary landfill: Plaintiff sought $32.7 million in compensatory damages and approximately $200 million in punitive damages. After an eight day jury trial, the jury awarded the Plaintiff $14 million in compensatory damages but voted 9 - 3 in favor of BNSF on the punitive damages claim.
Marshall v. State ex re. Cooney (1999). Stan Kaleczyc and Kim Beatty successfully voided a constitutional provision limiting governmental power to impose taxes, fees and assessments. The matter was accepted by the Montana Supreme Court on a petition for original jurisdiction.
Burlington Northern Santa Fe Corporation v. Commissioners of the Montana Department of Public Service Regulation (1997). Leo Berry and Mark Etchart were lead Montana counsel in this federal preemption case where a declaratory judgment action was brought on behalf of the Burlington Northern Santa Fe Corporation that the Interstate Commerce Commission Termination Act of 1995 preempts regulation by the Montana Public Service Commission of rail facilities and services within the State of Montana. The case was won on summary judgment in the United States District Court.
Burlington Northern Railroad Company v. Washington Construction, et al. (1995). Dan Hoven and Oliver Goe represented Burlington Northern Railroad Company ("BNRR"). Prior to trial BNRR was paid significant damages for trains which were forced to stop while tracks were cleared of debris, and for property damage and associated repair costs. A subsequent eight-day jury trial was conducted on the remaining issue of whether BNRR was entitled to damages for trains which merely had to slow down through the construction site. A $378,000 jury verdict was obtained for Burlington Northern.
Appellate Practice
BKBH attorneys have appeared before all significant state and federal tribunals serving Montana, including the Montana Supreme Courts and the United States Supreme Court. BKBH's litigators are also experienced in appellate work within various state and federal administrative agencies. We believe that we are uniquely positioned to provide law firms and clients outside the immediate area with both appellate practice experience and the ability to assist others in marshaling the record on appeal in both a cost-effective fashion and in a format that is acceptable to the Court.
Commercial Litigation
Not all business activities can be conducted free from controversy which results in litigation before the courts or administrative agencies. In those cases, we are available to provide a full range of litigation services, from planning initial strategies to prosecute or defend, engaging in alternative dispute resolution, developing and executing pretrial and trial tactics, and handling all levels of appeal. We are experienced in preparing comprehensive litigation management plans and accurately budgeting for the various phases of litigation. We work in a cooperative, trust relationship with our clients to ensure mutual participation in the strategic defense of each case.
Our litigation attorneys have litigated commercial matters in federal and state trial and appellate courts, arbitration tribunals, and administrative agencies. We are available to represent our business clients in breach of contract actions, matters arising under the Uniform Commercial Code, RICO, CERCLA, and state and federal antitrust and securities laws, commercial bankruptcy matters, distributor terminations, corporate and partnership dissolutions, securities and commodities fraud litigation, unfair competition, trade secret and intellectual property actions, class action and derivative shareholder litigation, and other types of commercial litigation.
BKBH offers a complete range of business and commercial services to its clients who are interested in conducting business or are actively involved in business ventures in the state of Montana, the Rocky Mountain Region, the Pacific Northwest, Washington, D.C., or elsewhere across the country.
Complex Litigation and Civil Procedure
BKBH's lawyers handled cases involving scores of claims and thousands upon thousands of documents. A thorough understanding of the Montana and Federal Rules of Civil Procedure, as well as office infra-structure to handle so many documents are crucial if our clients' interests are successfully represented in through such cases. When cases mushroom into complex litigation, BKBH offers its clients a professional and efficient work product that comes from years of experience and skilled legal and support staff.
Employment Litigation
Since 1986 BKBH has consulted with and successfully represented Montana employers and their insurers on a variety of labor and employment law issues before the Montana Supreme Court, in the district courts of Montana, and before the Department of Labor and the Workers; Compensation Court. Our litigation section has extensive experience defending cases involving alleged wrongful discharge, constructive discharge, sexual harassment, employment discrimination, and human rights violations. Cases which BKBH has successfully defended include unlawful discrimination, wrongful discharge, claims for unemployment benefits, wage and hour claims, and workers' compensation and occupational disease claims.
To achieve successful litigation results in its employment law cases, BKBH employs a team approach which encourages a cooperative effort between the employer, insurer, and counsel. The firm believes the best possible results are achieved when everyone combines their skill and resources to effectively communicate and work together throughout the course of litigation. Using these strategies in conjunction with alternative dispute resolution mechanisms where appropriate and the innovative technology available to us, BKBH has achieved a high success ratio for our business clients at the trial and appellate levels.
BKBH is often called upon to assist employers in complying with and successfully negotiating the web of labor and employment laws which must be met. Businesses of any size in Montana must comply with myriad labor laws. In addition to compliance with payroll and unemployment tax liabilities, including compliance with the Fair Labor Standards Act, state wage and hour laws, and workers' compensation insurance requirements, the modern business owner must understand issues such as the nexus between workers' compensation statutes, the Americans with Disabilities Act and the Family Medical Leave Act, United States Civil Rights Laws Act, Montana Human Rights legislation, and federal and state drug testing laws and policies all provide unique challenges and opportunities to business. In addition, we are often called on to assist clients in developing and implementing effective employment practices, including personnel policies and procedures, reductions in force, independent contractor issues, and civil rights laws.
The defense of Montana employers and their insurers constitutes a significant portion of BKBH’s practice. We believe we have obtained the trust and confidence of the employers and insurers we represent. For more than twenty years, we have successfully represented employers, insurers, self-insured entities and workers’ compensation insurers in the district court and in proceedings before the Montana Workers’ Compensation Court, the Montana Department of Labor, and the Montana Supreme Court. Our firm’s employment defense section has extensive experience defending cases involving alleged wrongful discharge, constructive discharge, sexual harassment, employment discrimination, and human rights violations. Cases which BKBH has successfully defended include unlawful discrimination, wrongful discharge, claims for unemployment benefits, wage and hour claims, workers’ compensation and occupational disease claims.
Representative Employment Defense Cases by BKBH:
Erickson v. Ash Grove (2005). Oliver Goe represented Ash Grove Cement Company in a case filed by a prior employee. Plaintiff argued that the intentional and malicious acts of Ash Grove led to an accident in which he suffered third degree burns and which left him with profound physical and emotional injuries. The case settled favorably for Ash Grove during a jury trial held before Judge Loren Tucker in Jefferson County.
Parr v. Union Pacific Railroad Company (2003). Dan Hoven and Sara Berg represented the Union Pacific Railroad Company (“UPRR”) in a FELA claim that was tried before a jury for 4 days. An allegedly injured section man, sued UPRR for a soft tissue injury to his neck and shoulders which occurred while utilizing a tamping tool on the job. This case settled favorably for UPRR right before closing arguments, on terms which had been offered months before trial had begun.
Dayberry v. East Helena (2003). Oliver Goe was lead counsel in this case where a diver brought a negligence suit against the City of East Helena for injuries sustained while diving off the diving board into the City’s municipal pool. The Court granted the City’s motion for summary judgment, agreeing that without expert testimony, Plaintiff could not establish a prima facie case of negligence or strict liability and that the theory of strict liability was inapplicable because a swimming pool is not a product. The decision of the District Court was affirmed by the Montana Supreme Court.
Zimmerman v. Continental Western Insurance Company (2002). Leo Ward represented the defendant, Continental Western, in an insurance bad faith case filed by a local business owner arising out of property damage claims. After a nine day trial, the jury deliberated for more than six hours and then delivered a defense verdict. The trial was before Judge Jeff Sherlock in Lewis & Clark County.
Rucker v. TCI Cablevision of Montana Inc. (1999) In a case brought pursuant to Montana's Wrongful Discharge From Employment Act, Plaintiff alleged that she had been discharged without good cause and in violation of TCI's own written personnel policies. Plaintiff's claims for emotional distress and punitive damages were dismissed by the Court following motions filed by TCI and Plaintiff dismissed her case altogether during the second day of binding arbitration.
Brostrum v. Havre Public Schools. (1996) Plaintiff, a school teacher, alleged that she had been the victim of unlawful sex discrimination in hiring and advancement. Following extensive discovery by the Plaintiff, the granting of partial summary judgment in favor of the Havre Public Schools, Plaintiff dismissed her case with prejudice shortly before trial.
Nesho v. Havre Public Schools. (1997) Plaintiff, a school teacher, filed a motion in U.S. District Court, alleging sex discrimination in her not being hired for a full-time teaching position. Following motions filed on behalf of the Havre Public Schools, the case was dismissed with prejudice.
Keller v. US WEST. (1999) Ms. Keller has filed multiple claims with the Montana Human Rights Commission, alleging retaliation, age, and disability discrimination. The case has been argued before the Montana Human Rights Commission on three separate occasions. A cooperative effort between US WEST and BKBH has resulted in three separate findings that there is no reasonable cause to believe that discrimination has occurred.
Environmental and Natural Resource Litigation
Numerous environmental issues affect BKBH's clients. BKBH is particularly well-suited to provide a full range of environmental law and litigation services, including administrative forums, and the coordination and implementation of trial and/or appellate strategy. BKBH has been retained to represent a wide-variety of clients from cities and towns to nationwide companies in matters ranging from simple administrative procedures to complex, multiparty litigation brought under CERCLA, CECRA, and ESA.
BKBH's environmental attorneys provide counsel for complying with all aspects of the Clean Water Act, the Clean Air Act, the Resource Conservation and Recovery Act (RCRA)and in initiating or defending cost recovery actions under the state and federal superfund laws. Our property attorneys have experience dealing with a broad variety of lease and acquisition matters, easement and eminent domain disputes, and related litigation.
Representative Cases:
Trinity Railcar Repair, Inc. v. CMC Heartland Partners, L.P. (2004). Catherine Laughner is the lead BKBH counsel for Trinity in this case. Trinity sought and was granted a preliminary injunction against the Defendants preventing them from disposing of assets, rendering them judgment proof and unable to indemnify Trinity for clean-up costs associated with diesel fuel contamination at the Miles City Railyard. Instead, the Court ordered that any proceeds obtained from the sale or dissolution of Defendant’s assets, up to $2.5 million, must be held in a reserve fund with the County Clerk of Court in trust for payment of clean up costs at the railyard once a determination has been made regarding the share of reclamation expenses Defendants may be responsible to bear. Cost recovery litigation in the case is continuing.
US v. Rhodia, Inc. (2003). Cathy Laughner was lead BKBH counsel defending Rhodia, Inc. in this criminal matter brought by the U.S. Government. Charges included improper management of hazardous wastes in violation of the Resource Conservation and Recovery Act, violations of the Clean Water Act, misrepresentations to the state and federal government, and conspiracy with respect to the charges. Rhodia was able to successfully avoid indictment in this matter.
Aguiar v. The Burlington Northern and Santa Fe Railway Co. (2003). Leo Ward and Mark Etchart were the lead Montana attorneys on this case brought by over 160 residents of Havre, Montana against The Burlington Northern and Santa Fe Railway Company (“BNSF”). Plaintiff’s claimed negligence, public and private nuisance, trespass, strict liability for abnormally dangerous activity, negligent infliction of emotional distress, violations of Montana’s Constitution and constructive fraud. The case was settled just days before trial.
The Burlington Northern and Santa Fe Railway Co. v. Kalispell Pole and Timber Co. (2001). Mark Etchart represented BNSF in a suit brought against Kalispell Pole and Timber Company (“KPT”) under CERCLA (Comprehensive Environmental Response, Compensation and Liability Act) and CECRA (Comprehensive Environmental Cleanup and Responsibility Act) for recovery of and contribution of response costs incurred by BNSF in connection with the release and threatened release of hazardous substances at and from facilities within the KPT site in Kalispell, Montana. BNSF won summary judgment and secured a favorable allocation of liability for remediation costs.
Burlington Northern Railroad Company v. Falls Chemical, Inc. (1995). Catherine Laughner and Mark Etchart represented Burlington Northern Railroad Company (“BNRR”) in this case involving a CERCLA and RCRA cost-recovery action for the cleanup of an abandoned pesticide formulating plant. After discovery, the case was settled and BNRR recovered a substantial portion of its cleanup costs.
Hunt v. Ribi ImmunoChem Research, Inc. (1995); US v. Ribi (1998). Dan Hoven represented Ribi ImmunoChem in a toxic tort action brought by area landowners. Representation also includes the investigation and remediation of the Bitterroot Valley Sanitary landfill under state and federal environmental laws. The toxic tort case was won on summary judgment, while the cost recovery case has been settled.
United States v. Atlantic Richfield Company, Burlington Northern Railroad Company, Torger Oaas, Atlantic Richfield Company v. Burlington Northern Railroad Company, Torger Oaas, and Montana Resources, Inc. (1995)
BKBH was counsel for Burlington Northern in a $50 million Superfund cost recovery case involved cutting-edge issues of joint and several liability under § 107 of CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act) and highly technical groundwater contamination issues. After extensive discovery, including discovery of experts conducting groundwater computer modeling, a favorable settlement for Burlington Northern's involvement at the Superfund site was obtained.
Park County v. The Burlington Northern Sante Fe Railway Company. (1999) BKBH was local counsel in this significant environmental trespass case. Plaintiff claimed BNSF dumped perchloromethane sludge for years in the Plaintiff's sanitary landfill: Plaintiff sought $32.7 million in compensatory damages and approximately $200 million in punitive damages. After an eight day jury trial, the jury awarded the Plaintiff $14 million in compensatory damages but voted 9 - 3 in favor of BNSF on the punitive damages claim.
National Wildlife Federation v. Burlington Northern Railroad Company. (1993), 23 F.3d 1508 (9th Cir. 1995) BKBH was counsel for Burlington Northern in an ESA (Endangered Species Act) takings case involving grizzly bears near Glacier National Park. The case was won on summary judgment in the United States District Court and affirmed on appeal in the Ninth Circuit Court of Appeals.
State of Montana, ex rel. the Montana Department of Environmental Quality v. Ribi Immunochem Research, Inc., Bitterroot Valley Sanitary Landfill, Inc., and Charles Mann. This case was recently filed by the State of Montana which seeks remediation costs and penalties under the CECRA (Comprehensive Environmental Cleanup and Responsibility Act). The case is ongoing.
Burlington Northern Railroad Company v. Falls Chemicals, Inc. (1995) BKBH represented Burlington Northern in a CERCLA and RCRA cost-recovery action for the cleanup of an abandoned pesticide formulating plant. After discovery, the case was settled and Burlington Northern recovered a substantial portion of its clean up costs.
FELA
Browning, Kaleczyc, Berry & Hoven defends railroad employers in cases brought by railroad workers under the Federal Employers' Liability Act (FELA). For numerous reasons, a significant number of FELA cases are filed in Lewis & Clark County, Montana, where the offices of BKBH are located. As a consequence of our longstanding professional relationship with railroads in Montana, our firm is gaining significant experience in the specialized area of FELA litigation.
The FELA defense attorneys at Browning, Kaleczyc, Berry & Hoven understand the unique demands and challenges of defending cases brought under the FELA. For example, our analysis and litigation strategies incorporate careful consideration of the difference between FELA cases and ordinary negligence cases in terms of burden of proof, as well as the comparative negligence of the plaintiff. We are sensitive to the special risks involved in terms of liability and damages exposure inherent in FELA cases. We emphasize keeping our clients informed and actively involved at every stage of the litigation process.
Representative Cases:
Banks et al. v. Union Pacific Railroad Company. (1996)
BKBH was counsel for over 40 hearing loss cases filed against the Union Pacific Railroad Company in Helena, Montana. All plaintiffs allege hearing loss as a result of exposure to noise during their work histories with the Union Pacific. After significant discovery and favorable rulings for Union Pacific on discovery issues the plaintiffs settled these cases. James Claar, et al. v. Burlington Northern Railroad Company (1991)
BKBH was Montana counsel for Burlington Northern Railroad Company in a toxic tort case brought under the Federal Employers Liability Act involving claims of over 30 former Burlington Northern employees. The employees allege they were exposed to a variety of toxic chemicals during their work history, which resulted in a variety of injuries including central nervous system disorders. Summary judgment was obtained in six test case plaintiffs from the U.S. District Court in Montana on the grounds that the six test case plaintiffs had failed to make a prima facie showing that any of their alleged symptoms were caused by a specific exposure to a specific chemical. The summary judgment was upheld on appeal in the 9th Circuit.
Insurance Defense
BKBH represents various insurance companies, including self-insurers, on a variety of issues ranging from coverage determinations to bad faith claims. The firm's representation involves all available forums, including state and federal court, administrative proceedings, and claims before the Insurance Commissioner. The firm also provides advice on all insurance-related issues directly to its insurance clients and full litigation support.
Representative Cases:
Wrigg v. L&H, LLC, et al. (Mont. 2006). This was a premises liability case where BKBH represented the tenant/operator. BKBH prevailed on a summary judgment in the district court, and that judgement was affirmed by the Montana Supreme Court (Case Number 2006 MT 338N).
Flesch v. McDonald's Restaurant, et al., 2005 MT 235 (2005). This was a slip and fall case in which BKBH represented the defendant restaurant. On behalf of the defendant, BKBH obtained summary judgment on liability and an order dismissing the case as a sanction for discovery abuses. The Montana Supreme Court recently affirmed the trial court, requiring BKBH’s client to pay nothing to the plaintiff.
General Lines
Our lawyers represent more than twenty-five different insurance carriers that insure against a wide range of risks. We at BKBH pride ourselves with the efficiencies that we seek to provide to our insurance clients, and we continue our efforts to work with our insurance clients using increasingly responsive techniques. The cooperative efforts we have exerted on behalf of the dozens of insurance adjusters over the years have earned us the continuing respect of our insurance clients.
Property & Casualty
We pride ourselves in our work advising and defending various property and casualty underwriters who insure businesses or individuals in Montana against various risks such as fire, homeowners, automobile, marine, liability, or workers' compensation. Defending P&C underwriters and their policy holders is frequently not glamorous work, but we regard it as one of the more important roles we, as lawyers, can play in assisting our clients.
Self Insurance
For nearly twenty years, BKBH has represented Montana-based self-insurers. Some of these self-insurers are corporations doing business in Montana. Others are non-profit organizations that self-insure against risks, such as workers' compensation injuries or health care or other types of self-insurance. Our-self insurance practice involves advising and defending self-insured entities all over Montana. We have helped prepare the organizational documents that created these groups, and we have helped pursue state legislation that allowed them to be created in the first place.
Professional Liability Insurance
BKBH represents professionals who are exposed to liability in their chosen professions. Insurance of this type is frequently provided in the form of claims made policies that cover monetary loss and expense of an insured attorney or law firm for legal liability in the rendering of professional services as defined by the policy. Most of our work in this arena has been to defend medical practitioners who have been alleged to have engaged in negligently causing injury to their patients. Our attorneys pride themselves in the quality and tenacity of their representation of these professionals.
Workers Compensation Insurance
For more than twenty years, BKBH attorneys have offered our clients a broad spectrum of counseling and advice on a variety of legal issues arising under Montana's Workers' Compensation Act. The Firm advises state funded and self-insured clients with matters pertaining to premium rates, non-compliance, establishing and/or transferring risk experience and renders assistance in maintaining self-insured privileges under workers' compensation laws. We recognize that minimization of workers' compensation injuries can begin before applications are filed. Our lawyers have counseled clients on investigation of what happens even before these claims are filed, and we have advised employer clients on workplace hazards. Above all, we have successfully defended clients against workers compensation claims in many arenas. We routinely defend employers against civil actions both at the trial court and at the appellate level, and we have taken appeals to the Montana Supreme Court and actually won some appeals. Our firm has helped achieve reforms to Montana's statutes governing workers compensation. We have commented on proposed legislation and agency guidelines to alter Montana's workers compensation policies. Our Workers' Compensation practitioners frequently appear on the programs of statewide and regional seminars on Montana's workers' compensation laws. In short, workers compensation defense has become a major part of BKBH's insurance defense practice.
Representative Cases:
Zimmerman v. Continental Western Insurance Company. (1996)
Our firm is defending a property damage insurer being sued for bad faith related to major water damage in a restaurant. By our Motion for Summary Judgment, Plaintiffs' common law bad faith and emotional distress claims were dismissed and Plaintiffs were limited to claims arising under the Unfair Claims Practices Act. Continental Western v. Fleet Mobile. (1998)
Our firm brought a declaratory judgment insurance coverage claim in federal court arising out of privacy violation claims under the Health Care Information Act. The case was resolved by a favorable global settlement involving the insurer, the insured, and the injured parties. Runnells v. Main Street Lounge. (1999)
Our firm is currently representing the insurer of a Butte bar being sued for the alleged assault on a bar patron. Discovery is proceeding and a May trial date is scheduled.
Medical Malpractice Defense
In 1991, BKBH made a commitment to join the handful of law firms in Montana conducting medical malpractice defense. This commitment was a natural progression given our long-standing association as counsel for the Montana Hospital Association. Since that time, we have been retained by various medical malpractice insurance carriers to represent their insured health care providers. We have also become counsel to the Helena Health Alliance, which is a physician/hospital organization comprised of over 70 Helena area physicians. Our firm's central location in Helena provides convenient access for the physicians, hospital administrators and nurses who appear before the Montana Medical-Legal Panel, which sits in Helena and hears all medical malpractice claims filed in Montana. Due to our success in defending medical malpractice claims, medical malpractice defense has become one of the major components of the firm's litigation practice.
Over the past two decades, BKBH has handled hundreds of claims filed against physicians and hospitals in all parts of Montana. We have represented the total spectrum of practicing physicians including, but not limited to, anesthesiologists, family practitioners, internists, obstetricians and gynecologists, oncologists, orthopedic surgeons, pediatricians, and general surgeons. We have experienced a diverse array of medical issues including failure to diagnose breast cancer, amniotic fluid embolisms, hypoxic ischemic, encephalopathy, abdominal surgery, hantavirus, foreign objects etc. Of the cases defended, approximately half are dropped after the Panel proceedings, and the other half go on to further litigation. Of the cases advanced to litigation, we are able to secure dismissals, summary judgments, or settlements in the vast majority of those cases. However, when no alternative exists, we have vigorously defended cases at trial.
We believe we have obtained the trust and confidence of the insurers and the insured physicians we represent. As an area of specialization, BKBH is committed to expanding the role medical malpractice defense plays in the firm's overall practice.
Representative Cases:
Baugh v. Sanders (2006). Dan Hoven and Aimee Grmoljez represented an internal medicine physician in this medical malpractice case. A 12-0 Helena jury found no breach of the standard of care in connection with Defendant Physicians' care and treatment of Plaintiff in 1997-1999. The jury deliberated approximately 1 hour on the fourth day of trial involving allegations of negligent failure to diagnose Plaintiffs' colorectal cancer.
Howard v. Thorne (2004). Dan Hoven and Sara Berg represented an emergency room physician in this medical malpractice case. A 12-0 Butte jury found no breach of the standard of care in connection with Defendant Physicians' emergency care and treatment of Plaintiff in August of 1997. The jury deliberated 2 ½ hours on the fifth day of trial involving allegations of improper treatment of epileptic seizures and unauthorized HIV testing in the Butte emergency room.
Snell v. Defendant Physician. (1998). This case involved a traumatic delivery of a baby at the Indian Health Service at the Fort Belknap Indian Reservation. The mother was a 42 year old, insulin dependent diabetic who went into pre-term labor and the baby presented in a footing breach position. BKBH is defending the obstetrician gynecologist who was providing prenatal care to Mrs. Snell in Havre, Montana, some 40 miles from the Fort Belknap Indian Reservation. The child suffered asphyxia and has resulting brain damage.
Bueling v. Defendant Physician. (1997) A 12 - 0 Great Falls jury found no negligence against Defendant Physician arising out of his treatment of Bueling for hantavirus. The jury deliberated 1 hour and 30 minutes on the 6th day.
Lander v. Defendant Physician. (1995) A 12 - 0 Helena jury found no negligence by Defendant Physician in connection with x-ray and CT scan readings of Lander involving allegations of delayed diagnosis of esophageal cancer in this five-day trial seeking punitive damages. The jury deliberated 1 hour and 20 minutes on the 5th day. No appeal.
In Re Silicone Gel Breast Implants Products Liability Litigation. (1994) BKBH was designated as Montana's breast implant counsel for The Doctors' Company. We have been responsible for the coordination and management of the defense of eight different claims brought against plastic surgeons in Montana. BKBH has defended those claims as they proceeded through the Montana Medical Legal Panel, the proceedings before the Montana Breast Implant Coordinating Judge, and the Northern District of Alabama in the multi-district litigation above. To date, all of those claims against the plastic surgeons, have either been found to be lacking in merit as a result of proceedings before the Medical Legal Panel or otherwise voluntarily dismissed with the exception of one claim which remains in the Northern District of Alabama.
Waller v. Defendant Physician. (1993). An 8 - 4 Sidney jury found no negligence by Defendant Physician in connection with an intra operative injury to Waller's small bowel during her surgery in 1989. The jury deliberated 1 hour 45 minutes on the 8th day of this trial involving allegations of unnecessary hysterectomy, battery, negligence, and punitive damages. The defense verdict was affirmed by the Montana Supreme Court on December 13, 1994.
Municipal Liability
BKBH is general counsel for the Montana Municipal Insurance Authority, the self-insurance pool for the majority of Montana's municipalities. The firm has also defended numerous cities and towns on a variety of issues ranging from civil rights violations, negligent hiring, training, and supervision of employees and law enforcement personnel, and property damage claims.
Representative Cases:
Kudloff v. City of Billings. (1996)
Plaintiff raised an annexation dispute related to property near the airport. Our firm successfully defended summary judgment through the Supreme Court. Plaintiff's case was dismissed. Estate of Alger v. Anaconda-Deer Lodge County. (1998)
Negligent spoliation case arising out of evidence taken into custody after a mobile home fire which resulted in the death of a young mother and three small children. Issues currently before the Montana Supreme Court on our request for a Writ of Supervisory Control. Anderson v. City of Belgrade. (1994)
Our firm successfully defended the City of Belgrade before the Montana Supreme Court on a mobile home zoning issue.
Products Liability
BKBH's attorneys have experience representing clients in complex products liability actions. BKBH has represented clients in a variety of products liability actions, including claims directed at manufacturers of pesticides, distributors of latex gloves, manufacturers of automobiles and manufacturers of products used in salons. BKBH's attorneys and paralegals are proficient in computer-assisted research, including research on the internet. BKBH's commitment to keeping up with technology ensures that its attorneys and paralegals are well-equipped to conduct the complex, technical research often required in products liability actions.
BKBH's attorneys are capable of meeting the unique challenges involved in products liability law. The firm's litigation group has knowledge of Montana's products liability statutes and we keep abreast of new developments in Montana case law interpreting those statutes. BKBH's attorneys are sensitive to the continuing development of this area of the law in Montana.
Representative Cases:
Sleath, et al v. Dowelanco, Orkin, et al., and Hilden v. Orkin (1996)
BKBH currently represents Orkin Exterminating Company, Inc., in complex toxic tort litigation brought by four plaintiffs, which includes allegations of sick building syndrome and organophosphate poisoning. The litigation involves Orkin's use of Dursban, an insecticide, at West Mont Home Health Services, Inc. Deborah Anderson, Gerald Anderson; and Peggy Heustis, as Conservator and Guardian for Deborah Anderson V. Paul Donaldson, M.D. and Family Practice Center of Helena/Hawkins-Lindstrom Clinic, P.C.; Baxter Healthcare Corporation, a Delaware Corporation; Safeskin Corp., a Florida Corporation, Steriltx (U.S.A.), Inc., a Tennessee Corporation; Shopko Stores, Inc., a Minnesota Corporation; and Does And Roes One Through Ten.
BKBH currently represents Steriltex (U.S.A.), Inc. in a complex tort action which arises out of an alleged latex allergic reaction by Plaintiff. The case involves allegations of negligence, breach of warranty, fraudulent concealment, strict/products liability, failure to warn and conspiracy claims against various manufacturers and distributors of latex products, including Steriltex. The case is in the early stages and is not scheduled for trial until February of 2001. The State of Montana v. Philip Morris et. al (1998)
Montana counsel for Philip Morris in an attorney general's action brought against the tobacco companies. This is one of several such actions being brought around the country and involve unique issues of law and fact concerning the marketing and advertising of tobacco products as well as the ability of a state to recover health care costs. The economic impact of this litigation is staggering as even in Montana the amounts at issue are several hundred million dollars.
Surety Law
BKBH attorneys are experienced in representing bonding companies in a variety of surety bond matters. Surety bonds continue to be an important element in the construction and mineral extraction industries in the Rocky Mountain region and our attorneys are highly capable of managing the complex issues encountered by sureties from negotiations to litigation. BKBH is successful in assisting their surety clients in formulating realistic, cost-effective solution s in contentious situations.
Toxic Tort
BKBH's attorneys have been on the cutting edge of toxic tort litigation for the last ten years. BKBH represents clients in a variety of chemical exposure cases involving claims of permanent physical injuries and disabilities. BKBH's attorneys and paralegals are proficient in computer-assisted research, including research on the internet. BKBH' s commitment to keeping up with technology ensures that its attorneys and paralegals are well-equipped to conduct the complex medical and scientific research required in toxic tort litigation.
BKBH's attorneys are experienced in addressing the complex issues involved in toxic tort litigation. BKBH emphasizes a collaborative effort between the firm's attorneys and clients in securing a favorable outcome in their cases.
Representative Cases:
Syler et. al. V. Union Pacific Railroad Company. (1998)
BKBH is Montana counsel for 10 asbestos cases brought against the Union Pacific Railroad Company. The plaintiffs contend that through their years of service they were exposed to asbestos dust or fibers, silica dust, coal dust or other toxic materials causing asbestos caused lung disease, asbestosis, silicosis or coal workers lung disease. Asbestos litigation against the rail industry is a significant economic concern. These cases are in the preliminary discovery phase. Hunt, et al v. Ribi Immunochem Research, Inc. (1995)
BKBH represents Ribi Immunochem Research, Inc. in a toxic tort action brought by area landowners alleging personal injury and property damage as a result of exposure to groundwater contaminated with chloroform and other chemicals. Ribi prevailed on summary judgment on the basis that the level of any claimed exposure was not capable of causing the injuries alleged. James Claar, et al. v. Burlington Northern Railroad Company. (1991)
BKBH was Montana counsel for Burlington Northern Railroad Company in a toxic tort case brought under the Federal Employers Liability Act involving claims of over 30 former Burlington Northern employees. The employees allege they were exposed to a variety of toxic chemicals during their work history, which resulted in a variety of injuries including central nervous system disorders. Summary judgment was obtained in six test case plaintiffs from the U.S. District Court in Montana on the grounds that the six test case plaintiffs had failed to make a prima facie showing that any of their alleged symptoms were caused by a specific exposure to a specific chemical. The summary judgment was upheld on appeal in the 9th Circuit. Sleath, et al v. Dowelanco, Orkin, et al., and Hilden v. Orkin. (1996)
BKBH currently represents Orkin Exterminating Company, Inc., in complex toxic tort litigation brought by four plaintiffs, which includes allegations of sick building syndrome and organophosphate poisoning. The litigation involves Orkin's use of Dursban, an insecticide, at West Mont Home Health Services, Inc. Deborah Anderson, Gerald Anderson; and Peggy Heustis, as Conservator and Guardian for Deborah Anderson V. Paul Donaldson, M.D. and Family Practice Center of Helena/Hawkins-Lindstrom Clinic, P.C.; Baxter Healthcare Corporation, a Delaware Corporation; Safeskin Corp., a Florida Corporation, Steriltx (U.S.A.), Inc., a Tennessee Corporation; Shopko Stores, Inc., a Minnesota Corporation; and Does And Roes One Through Ten.
BKBH currently represents Steriltex (U.S.A.), Inc. in a complex tort action which arises out of an alleged latex allergic reaction by Plaintiff. The case involves allegations of negligence, breach of warranty, fraudulent concealment, strict/products liability, failure to warn and conspiracy claims against various manufacturers and distributors of latex products, including Steriltex. The case is in the early stages and is not scheduled for trial until February of 2001. The State of Montana v. Philip Morris et. al (1998)
Montana counsel for Philip Morris in an attorney general's action brought against the tobacco companies. This is one of several such actions being brought around the country and involve unique issues of law and fact concerning the marketing and advertising of tobacco products as well as the ability of a state to recover health care costs. The economic impact of this litigation is staggering as even in Montana the amounts at issue are several hundred million dollars.
White Collar Crime
BKBH's attorneys are experienced in representing White Collar Criminal defendants. We focus our attention on the need to provide vigorous defenses for individuals and corporations charged with business-related criminal offense s. The BKBH White-Collar group may not be well known because of our early and aggressive strategies for convincing government prosecutions not to commence or continue proceedings. If investigations are underway, we advise clients on how to manage the investigation and still run their businesses. BKBH has managed complex internal investigations arising under environmental statutes, securities laws, banking regulations, and the Internal Revenue Code.
Workers' Compensation Defense
BKBH lawyers have defended the State of Montana's Workers' Compensation Fund (and, more recently, the Montana School Groups Association and the Montana Hospital Association's Workers' Compensation Trust and the Montana Municipal Insurance Authority) in hundreds of litigated insurance claims. BKBH lawyers represent workers' compensation and employment client interests before the Montana Legislature.
The defense of Montana employers and their insurers constitutes a significant portion of the firm's litigation practice. Since 1985, BKBH has successfully represented self-insured entities and workers' compensation insurers before the Montana Workers' Compensation Court, the Montana Department of Labor, and the Montana Supreme Court. Our firm's central location in Helena provides convenient access to these Helena-based forums and to employers (and their insurers) in other Montana communities.
To achieve successful litigation results in its workers' compensation cases, BKBH employs a team approach to every claim which encourages a cooperative effort between the employer, insurer, and counsel. The firm believes the best possible results are achieved when everyone combines their skill and resources to effectively communicate and work together throughout the course of litigation. Using these strategies in conjunction with innovative technology, BKBH has achieved a high success ratio at the trial level before the Montana Workers' Compensation Court and the Department of Labor. Similarly, BKBH has enjoyed substantial success in appellate proceedings before the Montana Supreme Court.
We believe we have obtained the trust and confidence of the employers and insurers we represent. As an area of specialization, BKBH is committed to expanding the role workers' compensation defense plays in the firm's overall practice.
Representative Cases:
Yarborough v. Montana Municipal Insurance Authority. (1998)
The claimant sought medical and disability benefits for his psychological condition of PTSD following physical injury suffered while fighting a fire for the City of Billings. The Workers' Compensation Court agreed with MMIA's argument that Yarborough's PTSD was not caused by his physical injuries which healed within several weeks. MMIA convinced the Court that the claimant's PTSD was more likely caused from the emotional and mental stress of the accident. In affirming the Worker's Compensation Court, the Supreme Court cited the complex medical testimony dismissing a causal relation between the claimant's physical injuries and his PTSD. Taylor v. State Fund. (1996)
The Workers' Compensation Court determined that two of three claims filed by Taylor within a one year period were fraudulent. The testimony of the claimant's treating physicians, acquaintances, coworkers, supervisor, and ex-wife was sufficient to impeach the claimant. The Supreme Court affirmed the Workers' Compensation Court finding that the insurer established all requisite elements of fraud, and properly disregarded the claimant's impeached and inconsistent testimony. Hughes v. State Fund. (1992)
The Supreme Court affirmed the Workers' Compensation Court ruling on appeal from the Department of Labor and Industry that Hughes was equally exposed to aggravating factors outside of her employment resulting in her failure to satisfy the occupational disease proximate cause statute. The Supreme Court agreed that the claimant's dermatitis was intrinsic to her and not caused or aggravated by her employment environment. Her claim for occupational disease benefits was denied.
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