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BKBH's Environmental Litigation Practice 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: 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. 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. 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. For additional information on the environmental practice at BKBH, see Environmental Capability Statement. Return to: Litigation Practice Top / Practice Areas List 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. Return to: Litigation Practice Top / Practice Areas List 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. 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. Return to: Litigation Practice Top / Practice Areas List 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. Return to: Litigation Practice Top / Practice Areas List 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 8 years we have 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: 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. 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. 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. Snell v. Defendant Physician. (1998) This case involves 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. Plaintiffs have sued the United States of America and Defendant Physician. For additional information on the health care practice at BKBH, see Health Care Capability Statement. Return to: Litigation Practice Top / Practice Areas List 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. Return to: Litigation Practice Top / Practice Areas List 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. Return to: Litigation Practice Top / Practice Areas List 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. Return to: Litigation Practice Top / Practice Areas List 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. Return to: Litigation Practice Top / Practice Areas ListEnvironmental & Natural Resource Litigation - BKBH is particularly well-suited to provide a full range of environmental and natural resources litigation services to its business and individual clients. We regularly practice in administrative forums and the state and federal trial and appellate courts. BKBH attorneys have successfully represented clients in complex multiparty environmental and natural resource litigation in a cost-effective manner. We have represented clients in superfund actions against state and federal agencies, as well as private PRPs. Our attorneys have litigated several superfund cases where the potential exposure exceeded $5 million. In each matter the clients' litigation goals have been more than accomplished. |