Chilton Davis Varner (Chilton)

Chilton Varner has 30 years of courtroom experience as a trial lawyer defending corporations in product liability, business torts, contract and other commercial disputes.  She was identified by the National Law Journal as one of the country’s top ten women litigators in December 2001.   She is the senior partner in a product liability practice that has been selected by Chambers each year since 2005 as one of the best in the country.  Based on interviews with peers and clients, Chambers Guide for the past six years has listed her as one of a small number of Tier One product liability lawyers in the country.  The International Who’s Who in Product Liability judged her the leading product liability practitioner in Georgia in 2005 and as one of the most highly regarded product liability practitioners globally since 2006.  Ms. Varner currently serves as President-Elect of the American College of Trial Lawyers.  She has served as trial and appellate counsel for a number of the country’s largest pharmaceutical, medical device and automotive manufacturers.  She is experienced in mass tort litigation, class actions and MDL litigation, including the complex issues of discovery, attorney-client privilege and Daubert challenges to expert testimony that accompany such suits.  She was appointed by Chief Justice Rehnquist in 2004 and re-appointed by Chief Justice Roberts in 2007 to the Federal Civil Rules Advisory Committee, where she participated in the Committee’s drafting of amendments governing electronic discovery and changes to the Rules governing summary judgment and expert discovery.

Examples of Ms. Varner’s Trial Practice.

• In September, 2011, Ms. Varner tried and won a bellwether case in the MDL litigation in the Southern District of New York in which plaintiffs allege Merck’s osteoporosis drug Fosamax  causes osteonecrosis of the jaw.  The case, one selected by the Plaintiffs’ Steering Committee for trial, lasted four weeks and resulted in a finding of no defect and a unanimous verdict for Merck.
  
  
• Ms. Varner currently serves as co-lead counsel for Merck in another MDL, In Re Fosamax Products Liability Litigation (II), in the United States District Court for New Jersey.  Plaintiffs in that litigation allege that the osteoporosis drug causes atypical fractures of the femur in certain patients.
  
  
• Ms. Varner currently represents GlaxoSmithKline as national coordinating counsel and lead trial counsel in product liability litigation involving GSK’s antidepressant Paxil.  In September-October 2009, she tried to verdict plaintiffs’ first choice of several hundred cases in the Pennsylvania Mass Tort Program that allege that ingestion of Paxil in the first trimester of pregnancy produces birth defects in the fetus.  The jury in the Philadelphia Court of Common Pleas found for plaintiff 10-2, but awarded compensatory damages in an amount less than actual medical expenses.  The jury rejected plaintiffs’ claim for punitive damages.  Ms. Varner tried and won a second birth defect case in the same court in 2010, when the court entered judgment at the close of plaintiffs’ proof.  Ms. Varner has also been successful in defeating certification of both state and national classes of Paxil consumers on consumer fraud, medical monitoring and personal injury allegations.  The MDL Court’s decisions, In Re Paxil Prods. Liab. Litig., 218 F.R.D. 242, 2003 U.S. Dist. LEXIS 21195 and 212 F.R.D. 539, 2003 U.S. Dist. LEXIS 1936, have been referred to as part of the “big four” pharmaceutical cases on denial of class certification in medical monitoring and consumer fraud cases.  See In Re Prempro Prods. Liab. Lit., 2005 WL 2094974 (E.D. Ark., Aug. 30, 2005). 
  
  
• In June, 2008, Ms. Varner represented GSK in one of the first three cases tried to a jury verdict in the nationwide Average Wholesale Price litigation, State of Alabama v. SmithKline Beecham, d/b/a GlaxoSmithKline, Civil Action No. CV-2005-219.68, and the first in which no punitive damages were awarded.   The State, represented by one of Alabama’s leading contingency fee lawyers, sued virtually every pharmaceutical company, including GSK, alleging fraud in the reporting of prices for drugs covered under the Medicaid program. In 2009 the Supreme Court of Alabama rendered judgment in GSK’s favor on all counts in an opinion identified as the most important of 2009 by the Drug & Medical Device blog.  http://druganddevicelaw.blogspot.com/2009_12_01_archive.html.
  
  
• Ms. Varner currently serves as national coordinating co-counsel and lead trial counsel for Purdue Pharma in product liability litigation over Purdue’s pain medication OxyContin.  More than 400 cases have been dismissed without payment, most with prejudice, several on the eve of trial.  There have been 24 summary judgments in favor of Purdue and class certification has been denied 10 times. 
  
  
• For General Motors,  Ms. Varner in one 2-1/2-year period obtained jury verdicts for the defense in four cases involving catastrophic injury or death and settled a fifth while the jury was deliberating. 
  
  
• Ms. Varner has been admitted pro hac vice in the courts of Alabama, Tennessee, Louisiana, Florida, South Carolina, North Carolina, Maryland, Mississippi, Texas, Oklahoma, New York, Missouri, California, Kentucky, Utah, West Virginia, Virginia, Illinois, Arkansas, Wyoming, Connecticut, Indiana, Ohio, Kansas, Wisconsin, New Jersey, Arizona, Pennsylvania and Oregon.

Examples of Ms. Varner’s Appellate Practice.

• Ms. Varner has an active appellate practice and has often been invited to participate in cases after an adverse result below.  She has successfully argued appeals in the Third, Fourth, Fifth, Sixth and Eleventh Circuits and the Supreme Courts of Florida, Alabama, and Georgia.  On behalf of General Motors, she argued in Alabama and Mississippi the appeals of the largest product liability verdicts ever awarded at the time.
  
  
• In 2011, after a peer review survey, Best Lawyers named Ms. Varner Appellate Lawyer of the Year in her region.  
  
  
• As lead appellate counsel, Ms. Varner has obtained successful results in a number of federal decisions.  Examples:
  
  
  • Ms. Varner currently serves as lead counsel for intervenor Shell in Gulf Restoration Network, Inc. v. Salazar (No. 11-12599) and Defenders of Wildlife f. Bureau of Ocean Energy Management Regulation and Enforcement (No. 11-12598), two suits brought by environmental organizations challenging the first post-moratorium drilling permits for deepwater off-shore exploration in the Gulf of Mexico.
    
    
  • Colacicco v. Apotex and GlaxoSmithKline, 432 F.Supp. 2d 514 (E.D. Pa. 2006), aff’d, 521 F.3d 253 (3rd Cir. 2008).  Ms. Varner was lead counsel for defendants in the only pro-preemption decision involving prescription drugs to be handed down by a federal appeals court.  When the U.S. Supreme Court decided Wyeth v. Levine, it also vacated Colacicco for reconsideration by the lower courts. GSK then obtained summary judgment in the trial court on state law grounds. 
    
    
  • United States v. SabreTech, Inc., 271 F.3d 1018 (11th Cir. 2001).  In May 2001, Ms. Varner, retained after judgment, briefed and argued the appeal in the Eleventh Circuit of a criminal conviction of SabreTech, Inc., an aircraft maintenance company found guilty of violations of various hazardous materials regulations that allegedly caused the highly-publicized crash of a ValuJet plane in the Everglades in 1996.  In October 2001, the Court of Appeals reversed eight counts of conviction as well as millions of dollars in restitution and fines on grounds that the hazardous materials regulations at issue had not been properly promulgated under the Federal Aviation Act -- an issue of first impression. 
    
    
  • Piamba Cortes v. American Airlines, Inc. 177 F.3d 1272 (11th Cir. 1999).  Retained after judgment, Ms. Varner succeeded in reversing a district court opinion granting summary judgment on liability in favor of plaintiffs that lifted the Warsaw Convention’s limitation on damages for 150 plaintiffs arising out of American’s Cali, Colombia air crash in December 1995.  The case made new law on the definition of “willful misconduct” under the Convention. The result allowed successful resolution of the multiple claims by plaintiffs and claims for contribution by third-party plaintiffs.
    
    
• Ms. Varner is well-known to the judges of the Eleventh Circuit and the Northern District of Georgia.  She has co-chaired the program of the Eleventh Circuit Judicial Conference three times, served as a Member of the Program Committee for two other conferences, and participated as a panelist and focus group leader in four additional conferences.  The Eleventh Circuit asked her to serve as its representative at the Federal Judicial Center’s First National Conference on Eliminating Racial, Gender and Ethnic Bias in the Courts.  She is a trustee of the Eleventh Circuit Historical Society.  She has chaired the United States Magistrate Selection Committee for the Northern District of Georgia. 
  
  
• Ms. Varner has appeared frequently in the Georgia appellate courts.  She and her colleagues succeeded in 1993 in reversing the largest verdict in the history of the state at the time, in Moseley v. General Motors, 213 Ga. App. 875, 447 S.E.2d 302 (1994) and she represented ServiceMaster, a large conglomerate, in overturning a $45 million punitive damages verdict in a case over disputed sales commissions.  She recently represented Ford Motor Company in seeking reversal in the Georgia Supreme Court of a $12 million wrongful death verdict involving a post-collision fire.  Gibson v. Ford Motor Co., 659 S.E.2d 346 (2008).
  
  
• Ms. Varner has an active amicus practice.  She has authored more than twenty briefs for the Product Liability Advisory Council, a consortium of over 100 major product manufacturers formed to file amicus briefs on critical issues of product liability.  Her work includes a brief in Shelton v. American Motors, 805 F.2d 1323 (8th Cir. 1986), where the Court of Appeals adopted a landmark test proposed by PLAC limiting the availability of depositions of in-house counsel.  She has authored briefs for PLAC in the U.S. Supreme Court in Semtek International Incorporated v. Lockheed Martin Corporation, 531 U.S. 497 (2001), Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001) and Hanna Steel Co. v. Lowery, 483 F.2d 1184 (2007). 

Ms. Varner’s Service to the Bar.

• In 2004, Ms. Varner was appointed by Chief Justice William Rehnquist to the Federal Civil Rules Advisory Committee.  She was reappointed for another term by Chief Justice Roberts in 2007.
  
  
• Ms. Varner serves on the Editorial Board of Moore’s Federal Practice, a leading treatise on federal court litigation.
  
  
• Ms. Varner was a member of the twelve-member American delegation to the 2004-2005 Anglo-American Legal Exchange.  The American delegation was headed by U.S. Supreme Court Justices Breyer, Scalia and O’Connor, and included three other federal and state judges and six practitioners.  The delegation met with British counterparts in London in 2004 and in Washington in 2005 to present papers and discuss issues concerning Anglo-American law.
  
  
• Ms. Varner speaks regularly on women’s issues.  For example, she was one of the panelists who introduced a program in New York City sponsored by the Association of the Bar of the City of New York and the ABA Section of Product Liability, entitled “Women in Product Liability.”  She has continued to appear on successor programs for the ABA and for DRI.  She has also taught a session of the Temple University Graduate Program in Litigation on “Women as Trial Lawyers,” and has presented similar programs for her clients.
  
  
• Ms. Varner was the 2007 recipient of the Learned Hand Award from the Atlanta Chapter of the American Jewish Committee and the 2007 recipient of the Product Liability Advisory Council’s John Raleigh Award.  Both awards are given for professionalism and distinguished service as a lawyer.

Ms. Varner’s Publications.

Ms. Varner has published on areas of interest in her practice, including:

• Varner and Bayman:  Regulation of Pharmaceutical Manufacturers, Law Journal Press, 2010;
  
  
• J. Baron, C. Varner and Hon. J. Facciola, “E-Discovery and the Problem of Asymmetric Knowledge,” Vol. 60, No. 3 (Spring 2009), 60 MERCER L. REV. No. 3 (Spring 2009) 863-896;
  
  
• C. Varner, M. Harman and C.K. Rowland, “Emerging Jury Issues” in Product Liability Litigation: Current Law, Strategies and Best Practices, Practising Law Institute (2009);
  
  
• Varner, Devereaux, et al.:  Trends in U.S. Product Liability Litigation, PLC Cross-Border Life Sciences Handbook (2007-08);
  
  
• Varner, Devereaux and Bunn:  Update on Preemption in Pharmaceutical Product Liability Cases, International Who’s Who of Product Liability Lawyers (2007);
  
  
• Varner, Devereaux, et al.: Trends in U.S. Product Liability Litigation, PLC Cross-Border Life Sciences Handbook (2006-07);
  
  
• Lavin and Varner: Silent Advocacy: A Practical Primer for the Trial Attorney (2006);
  
  
• Varner, Justice Holland and Lord Scott of Foscote, "The Role of 'Extra-Compensatory' Damages for Violations of Fundamental Human Rights in the United Kingdom and the United States," Virginia Journal of International Law, Spring 2006;
  
  
• Varner: “Liability Issues with Papanicolaou Smears: A Defense Lawyer’s Perspective,” ARCHIVES of Pathology & Laboratory Medicine (1997);
  
  
• Varner and Griffin: "Appellate Handbook for Georgia Lawyers," Lawyers Cooperative Publishing (1994 and subsequent yearly editions);
  
  
• Bell, Varner and Gottschalk: “Automatic Disclosure and Discovery -- The Rush to Reform,” 27 Ga. L. Rev. 1 (Fall 1992) (with former Attorney-General Griffin Bell, discussing amendments to Federal Rule 26 requiring voluntary disclosure).

Other Information.

• In 2003-2011, Chambers Guide to America’s Leading Business Lawyers  has recognized Ms. Varner as a leader of the trial bar in commercial litigation, product liability and trial practice.  In 2007-2011, she was named one of the top product liability lawyers (Tier One) in the country.
  
  
• Ms. Varner has been named for the eighteenth year in the 2012 Best Lawyers in America.  Ms. Varner was recognized in the specialties of Appellate Law, Bet-the-Company Litigation, Commercial Litigation, Mass Tort Litigation and Personal Injury Litigation.  She has also been recognized by Law Dragon, Corporate Counsel, Who’s Who Legal,  The Legal 500, Atlanta Magazine and Georgia Trend Magazine as a leading lawyer.
  
  
• In 1995, Ms. Varner was elected to the American College of Trial Lawyers, a recognition requiring scrutiny by independent state-wide and national groups of the candidate’s record as a courtroom lawyer.  She chaired the College’s Committee on Attorney-Client Relationships from 2002-2005, served on the Board of Regents of the College (representing Georgia, Alabama and Florida), from 2005-2009, was elected Secretary of the College in 2009, and Treasurer in 2010.  She currently serves as President-Elect of the College.
  
  
• Ms. Varner is a member of the Product Liability Advisory Council, a national consortium of product manufacturers.  She was the first outside counsel to serve on PLAC’s executive committee (1991-94).  For the past seven years she has served as a member of PLAC’s Case Selection Committee, which determines the cases in which PLAC will file amicus briefs.

Ms. Varner’s Education and Background.

• Ms. Varner is a native of Opelika, Alabama, a town of 15,000 people.  She is a Phi Beta Kappa graduate of Smith College, Northampton, Massachusetts.  She joined King & Spalding after receiving her J.D., with distinction, Order of the Coif, from Emory University School of Law.  In 1983, she became the first woman partner in the Litigation Practice Group at King & Spalding.  In 1995, she became the first woman elected to the firm’s management committee.  She has served as a trustee of Emory University since 1995, a director of The Carter Center beginning in 2011, a director of Wesley Woods Geriatric Center from 1996-2007, and a director of the Atlanta Symphony Orchestra from 2005-2011.  She currently serves on the Board of Directors for Brown & Brown, Inc. (a publicly-traded insurance brokerage firm), and Atlanta’s Atlantic Capital Bank.  She is married to K. Morgan Varner, an attorney, and has one daughter, Ashley, who is an oncology social worker in Washington, D.C.