Profile of the Month – Nicole R. MacKenzie
Nicole MacKenzie is a member in the Seattle office of Williams Kastner, and her practice focuses on product liability and mass torts. Ms. MacKenzie manages several accounts, serves as local trial counsel for multiple clients and is also part of the National Coordinating Counsel team for another client. She has served as Vice Chair of the firm’s Products Liability and Mass Torts group since July 2015. Ms. MacKenzie is adept at developing and implementing defense strategies in state and federal courts for national asbestos products manufacturers, suppliers and contractors. Additionally, she has participated in numerous committees to provide input on proposed court procedures, general orders, case management orders, and general asbestos case management protocols for designated defense counsel. Ms. MacKenzie was recognized as a Rising Star by Northern California Super Lawyers in 2011 and 2012, and she was named a Super Lawyer in 2013.
- How often do you have cases that involve mediation?
My practice is primarily asbestos defense, mostly in King county. In King County we’re required to go through mediation at a certain point in the case. In the last three and a half years, I’ve probably had on average two to three cases a year go to mediation.
- What qualities do you look for in a mediator?
Since I’ve had experience dealing with different mediators, what I look for in a mediator is someone who is not only able to listen to both sides, but also able to see the bigger picture beyond the facts related to that specific case. In products liability, you tend to see the same types of cases involving the same defendants regularly. The mediator needs to consider: How will the mediation impact the parties for the entire litigation? The mediator needs to see that the facts and potential liability in that particular case are not the only things to be taken into consideration when working with the parties to get them to settle. Even if the mediator is not familiar with the particular industry, [the mediator] must be be willing to dig down and look at what the parties are concerned about and what the parties need to work on to make them comfortable with reaching a settlement. The mediator must have the skills to come up with creative solutions and not just be an intermediary relaying information between each side. We’re really talking about someone who is a problem solver and who understands there are different creative methods to use when coming up with solutions.
- How strongly do you push to have a mediator you propose be accepted by the other side?
It depends on the particular case. In asbestos litigation, the local bar has tended to use one specific mediator or a group of mediators, and most people just go along with that because we all know the case will resolve, it is just a question of when – and, of course, the final amount. But where perhaps there is more at stake and the outcome can matter depending on the choice of mediator, then we will push for somebody who will seek the creative solution, who will see different things and be effective.
4. How important is pre session communication with the parties?
I had a non-asbestos case involving property damage and claimed losses of profits and business expense resulting from an explosion at the Kaiser Aluminum facility in the Spokane area. The parties had difficulties agreeing on a mediator with the ability to meet the scheduling needs of the parties and attorneys. We ended up going to a mediator in San Francisco, and having the pre-session communication was extremely beneficial. The mediator set up expectations of how he would be handling things, which was a little different than what was familiar to us. The communications from the parties to the mediator in advance of the session were also very useful. The mediator studied the parties and facts in depth and understood the factual background of the case, the strengths and weaknesses of the various legal theories and positions, and the motivations of the parties before the session even started. This enabled him to dive right in and as a result he was effective and efficient with all of the parties’ time.
- How important is it for the mediator to follow up if the mediation doesn’t result in a settlement?
It is a sign of an excellent mediator who shows he or she is truly interested in helping the parties reach resolution and who is willing to go the extra mile or, in some cases, ten miles to make that happen. Excellent mediators work with the parties and make themselves available, sometimes at the drop of a hat. Sometimes things move forward rapidly and in order to take advantage of the opportunity you need the neutral party assistance. That is when the mediator who has continued to be available and involved turns into an invaluable resource.
- What ADR topics would you like to see discussed at an ADR-related CLE?
I would love to learn the secret methods and creative solutions that I referenced. I’d like to have a better sense of what mediators are doing and how they go about it to better help my personal negotiations, and how that will help when I’m in a mediation.
- Tell me more about your practice…
I serve as local counsel in Oregon and Washington for several defendants in the asbestos litigation and serve as national counsel for one of the defendants. As local counsel, I provide ongoing case analysis, take and defend depositions, conduct other formal and informal discovery, develop and implement an overall defense strategy, engage in negotiations with opposing counsel as appropriate, and prepare for and take the cases to trial. As national counsel, I serve as coordinating counsel for all of the local counsel across the country, which involves coordinating responses to discovery; counseling local counsel about the client and their products to help counsel prepare for and take depositions, draft motions, and negotiate with opposing counsel; providing trial preparation support; and providing trial assistance to local counsel. If expert testimony is required, we as national counsel retain the experts from the experts with whom we have developed a working relationship. We work with experts and local counsel to ensure the experts receive the appropriate case materials and we prepare the for and defend them at depositions, and prepare them for trial.
- Are there any issues or trending topics that you would like to discuss?
There are two things that I’m seeing. One in particular is related to the recent United States Supreme Court case of Bristol-Myers Squibb regarding personal jurisdiction. With the 2014 Daimler case, the Supreme Court imposed greater limits on personal jurisdiction and the recent Bristol-Myers decision further limits a court’s ability to obtain personal jurisdiction over a party. What impact will Bristol-Myers have on class action suits and multiple party suits such as asbestos? We sense that there may be some significant changes in several of the most popular jurisdictions for the plaintiffs’ Bar and expect that these jurisdictions will lose some of their case volume.
Second, change is occurring with claims related to exposure to talc, resulting in various different diseases. For example, there have been several major verdicts against Johnson and Johnson in the last year or so in cases of ovarian cancer where the women claim their use of talcum powder caused their disease. Other talc cases are ones where plaintiffs claim their use of baby power or cosmetics containing talc caused them to develop mesothelioma as a result of the talc allegedly being contaminated with asbestos. We’re seeing more of an uptick in these cases. How much of an uptick depends in part on how much the judges serve as gatekeepers in keeping out “junk” science. There was a case in New Jersey recently involving ovarian cancer where the judge granted summary judgment to Johnson and Johnson after excluding plaintiff’s experts’ opinions as not being based on sound science. We might see these cases slowly disappear if more judges in jurisdictions across the country exclude the plaintiff’s science experts. However, if the plaintiffs are successful with enough of these cases, we will see an increase for at least a period of time.