Browning, Kaleczyc, Berry, Hoven

In addition to an active trial practice over the last 25 years, recently Mr. Hoven has increasingly been asked to manage complex litigation cases involving multiple parties, industry-wide impacts or cutting-edge issues. With the help of the professional and technical staff of BKBH Mr. Hoven has enjoyed significant success with these cases.

In 1994, Mr. Hoven was designated as Montana's breast implant counsel for The Doctors' Company. In that role, Mr. Hoven has been responsible for the coordination and management of the defense of eight different claims brought against plastic surgeons in Montana. Mr. Hoven 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 entitled, In Re Silicone Gel Breast Implants Products Liability Litigation. 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.

Mr. Hoven was lead trial attorney for over 40 hearing loss cases filed against the Union Pacific Railroad Company in Helena, Montana. Banks et al. v. Union Pacific Railroad Company. 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.

Mr. Hoven is Montana counsel for 10 asbestos cases brought against the Union Pacific Railroad Company. Syler et. al. V. 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.

BKBH and Mr. Hoven are representing NorthWestern Corporation (NorthWestern) in its claims against PPL Montana, LLC (PPL) which arose out of an asset purchase agreement (APA) dated October 31, 1998 that was entered into by the seller, Montana Power Company (MPC) and the purchaser, PP&L Global, Inc. (PPL).   NorthWestern has since acquired MPC's rights and obligations under the APA.   PPL Global's rights and obligations under the APA have been acquired by PPL.   In short, the APA provided, among other things, that Purchaser would become obligated to purchase NorthWestern's interests in the Colstrip 1, 2 and 3 Transmission assets for $97.1 million upon the occurrence of certain conditions precedent, which have occurred. PPL refused to comply with its obligation to close on the purchase and pay the amount due.   However, this case settled in the fall of 2005 with PPL paying NorthWestern $9million and NorthWestern keeping the assets.

Mr. Hoven is lead counsel for Ribi Immunochem Research, Inc. in United States of America et al. v. Ribi Immunochem Research, Inc., et al., Ribi Immunochem Research, Inc. v. United States of America, et al., Ribi Immunochem Research, Inc. v. Bitterroot Valley Sanitary Landfill, Inc., et al. and State of Montana ex rel v. United States of America. This is an action brought by the United States under § 107 of the Comprehension Environmental Response and Compensation Liability Act to recover costs it alleges it has expended in cleanup of contamination at the Bitterroot Valley Sanitary Landfill. This case involves complex issues of fact and law pertaining to the nature and extent of existing contamination and whether costs allegedly spent were not inconsistent with the National Contingency Plan, 40 CFR, Part 300.

Mr. Hoven was Montana counsel for Burlington Northern Railroad Company in James Claar, et al. v. Burlington Northern Railroad Company. This is a toxic tort case brought under the Federal Employers Liability Act and involves claims of 30 former Burlington Northern employees. The employees allege they were exposed to a variety of toxic chemicals during their work history, which have 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 facia 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. Claar v. Burlington Northern Railroad Company, Cause No. CV-89-179-BLG-JFB. The test case decision ultimately resulted in the dismissal of 22 of the plaintiffs cases and prompted settlement of the remaining eight cases.

Mr. Hoven was lead counsel for Burlington Northern in United States v. Atlantic Richfield Company, Burlington Northern Railroad Company, et al., and Atlantic Richfield Company v. Burlington Northern Railroad Company, et al. This $50 million Superfund cost recovery case involved cutting-edge issues of joint and several liability under § 107 of the Comprehensive Environmental Response and Compensation 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.

TRIALS In his career, Mr. Hoven has tried numerous cases at federal, state, and administrative levels. The following is a sample of trials with at least $250,000 at issue.

Paulsen et. al. v. Montana Fish Wildlife and Parks, Columbia Paint Co, Monsanto Chemical Co. and Montana Fish Wildlife and Parks v. Monsanto Chemical Company. (2010) Mr. Hoven was local counsel for Monsanto in this environmental case filed originally in 2004 as a class action. The case alleged that Big Spring Creek, a blue ribbon trout stream, had become contaminated with PCB’s, manufactured by Monsanto, as a result of PCB laden paint entering Big Spring Creek from a Montana fish hatchery operated by Fish Wildlife and Parks. The class consisted of over 200 landowners whose property bordered the creek who alleged claims of nuisance and “stigma” damages. Fish Wildlife and Parks cross claimed against Monsanto for any remediation damages that it may incur. The class action was settled in 2008 but the cross claim went to a jury trial in Lewistown Montana on April 19, 2010. Fish Wildlife and Parks sought remediation damages of $10-14 million dollars and punitive damages of $20-$30 million dollars. Monsanto alleged the paint got into the creek as a result of the negligent maintenance practices of the Fish Wildlife and Parks. On the 6th day of trial the case settled by Monsanto paying $5 million dollars to Fish Wildlife and Parks.

Cooper v. Hanson (2009). Mr. Hoven and Carlo Canty successfully defended Dr. Peter Hanson an orthopedic surgeon in a case brought by Plainitff Cooper alleging that Dr. Hanson negligently performed a total knee arthroplasty as a result of a lacerated popliteal artery with resulting peroneal nerve dysfunction. Plaintiff sought up to $500,000 in damages. A Helena jury returned a unanimous 12-0 verdict on the 5th day of trial finding Dr. Hanson was not negligent.

Jaeger v. Dahl, et al. (2008).   Mr. Hoven and Aimee Grmoljez represented Dr. Chimene Dahl and Billings OB-GYN Associates in one of the largest medical malpractice cases in the history of Montana. The Plaintiffs alleged deviations of the standard of care by the obstetrician defendants as well as St. Vincent’s Hospital resulting in catastrophic birth injury. After 2 days of trial, the case was settled.

Ames v. Union Pacific Railroad Company (2007).   Mr. Hoven and Sara Berg represented the Union Pacific Railroad Company in a FELA claim that was tried before a jury for five days. This was an admitted liability case that involved a violation by the Union Pacific Railroad Company of the Federal Safety Appliance Act when a handheld broke on a rail car, causing the Plaintiff to make an emergency dismount where he suffered a back injury. Prior to trial, the lowest settlement demand from the Plaintiff was $1.9 million. At trial, he posted $550,000 of economic damages and claimed general damages of "much more" than the $550,000 (suggesting well over $1 million.) The jury deliberated six hours on the fifth day of trial and returned a verdict for $420,000.

Baugh v. Sanders (2006).   Mr. 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). 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.

Parr v. UP, (2003). Mr. Hoven represented the Union Pacific Railroad Company in a FELA claim that was tried before a jury for 4 days. An allegedly injured section man, sued Union Pacific Railroad Company 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 Union Pacific right before closing arguments, on terms which had been offered months before trial had begun.

Park County v. The Burlington Northern Sante Fe Railway Company, (1999). Mr. Hoven 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.

Mr. Hoven was lead counsel for Burlington Northern in Burlington Northern Railroad Company v. Washington Construction, et al., (1995). Prior to trial Burlington Northern 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 Burlington Northern 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.

Kleffners v. Pleasant Valley Coloney, (1993). Mr. Hoven was trial counsel in this difficult environmental trespass case in which he represented a Hutterite colony. Although a verdict was rendered for Plaintiffs in the amount of $500,000, the Plaintiffs had asked the jury for $3 million.

Bartel v. State, 217 Mont. 380, 704 P.2d 1067 (1985). Mr. Hoven was lead counsel in a case brought against the State of Montana alleging negligent design and maintenance of an intersection, which resulted in the plaintiff having a motorcycle accident with catastrophic injuries. The case was bifurcated on the issue of liability and damages. A defense verdict was obtained after seven days of trial, and affirmed on appeal.

Mr. Hoven was lead trial attorney for the State of Montana in a six-day evidentiary hearing before an administrative law judge appointed by the Interstate Commerce Commission. The case involved an abandonment of a significant branch rail line. Although unsuccessful in stopping the abandonment, a separate state court action, State of Montana v. Burlington Northern Railroad (1984) was filed and a significant settlement was reached which allowed for the creation and initial funding of the Central Montana Railroad which today operates over the abandoned line.

Buck v. State, (1984 ). This was a negligent design and maintenance of the roadway case involving four plaintiffs, one being the estate of a deceased 19-year-old girl, the other plaintiffs suffering a variety of serious injuries as a result of their vehicle leaving the roadway striking a splintering wooden guardrail which penetrated the compartment of the vehicle. The case was tried before a jury and a defense verdict was obtained. On appeal, the case was overturned as a result of a faulty jury instruction. See Buck v. State, 723 P.2d 210 (1986).

Buck v. State II, (1987). The case was subsequently retried a second time and a defense verdict was again obtained.

Howard v. State, 198 Mont. 470, 647 P.2d 828 (1982). Mr. Hoven was the lead counsel at both the underlying trial and subsequent appeal in this inverse condemnation action tried before a jury. Howard was developer who purchased patented mining claims in and near a Montana National Guard training center. Mr. Howard ultimately found his development plans for these patented mining claims was impossible and sued on an inverse condemnation theory. After six days of trial a defense verdict was obtained. The district court granted a new trial which ruling was appealed by the State of Montana and was successfully overturned, and the jury verdict reinstated.

REPORTED CASES
Mr. Hoven's active litigation practice has also lent to a variety of cases being reported in both the federal and state forums. A list of those cases which Mr. Hoven appears as counsel of record follows: