News: Gibson Dunn Wins Mass Action Trial in Victorville, California Superior Court  

On Tuesday, May 4, 2010, Gibson Dunn's client Nutro Products, Inc. (subsidiary of Mars, Inc.) obtained a complete defense verdict following an eight-week jury trial in Victorville, California (California Superior Court).

This was a bellwether trial involving 24 of the 400+ homeowner plaintiffs who sued Nutro for an alleged legal nuisance. The plaintiffs alleged that between March 2006 and July 31, 2008, Nutro's Victorville pet food manufacturing facility emitted an offensive.odor that interfered with the plaintiffs' use and enjoyment of their properties---which were located within one mile of the Nutro facility.

Under California law, plaintiffs were required to prove that any interference with their properties was both "substantial" (meaning that ordinary persons in the community would be substantially annoyed or disturbed) and "unreasonable" (meaning that the gravity of the harm outweighed the social utility of Nutro's conduct).

At trial, in addition to cross-examining each of the 24 plaintiffs and establishing the absence of actual impact from the alleged odor on their daily lives, Gibson Dunn also put on several company witnesses who testified about Nutro's "good neighbor" culture and proved that the company had no reason to know there would be any detectible odor associated with the manufacturing process in Victorville. Moreover, Gibson Dunn presented the following persuasive expert testimony: (1) an odor-modeling expert, who demonstrated that any pet food odor emitted from the facility was brief, mild, and infrequent, and was present in the community less than 1% of the time during the period in question; (2) an odor psychologist, who explained that plaintiffs' over-the-top reactions to the odor were due to external psychological factors and community instigation, not the odor itself; and (3) an economist, who testified about the significant social utility that Nutro brings to Victorville, including jobs, economic impact, and charitable contributions.

After a little more than two days of deliberation, the jury returned 24 individual verdicts in favor of Nutro and against the plaintiffs. For each of these plaintiffs, the jury found that any interference with the use and enjoyment of their properties was not "substantial." In other words, the jury did not even need to reach the question of whether the Interference was "unreasonable" or whether it actually harmed any of the plaintiffs.

The Gibson Dunn trial team was led by Los Angeles partner Bill Wegner, and included Los Angeles partners Gary Justice and Marcellus McRae, Los Angeles associates Matt Hoffman, Kahn Scolnick, Lauren Eber, Nat Bach, Alison Klingel, Diana Friedland, and Melissa Case, and Los Angeles paralegals Barbara Mitchell and Elke Mapes. Several others assisted over the course of the trial preparation effort, including Rebecca Meiers-De Pastino, Amelia Collins, Marv Williams, and Martin Ostrye.