Frank Kelly represents clients in courtrooms around the country, providing local, regional and national trial experience for corporate clients involved in high-stakes litigation. A fourth-generation San Franciscan, Frank honed his trial skills in courtrooms throughout California. Beyond California, Frank has tried cases to verdict in Alaska, Connecticut, Florida, New York, Michigan, Missouri, Oklahoma, Oregon and West Virginia.
Class actions, aggregated individual mass tort cases, complex product liability cases and catastrophic construction defect cases are the types of cases Frank handles for automobile, tobacco and other product manufacturers. Many of these cases involve serious claims for punitive damages, an area of the law in which Frank is regarded as deeply knowledgeable. To handle these cases effectively and efficiently, Frank manages highly competent trial teams; in addition, trying cases around the country often requires Frank to integrate lawyers from other firms into his teams.
Over the last 15 years, Frank has primarily handled complex individual and mass tort jury trials on behalf of corporate clients. He has obtained favorable jury verdicts in catastrophic injury and wrongful death product liability cases on behalf of tobacco companies, automobile manufacturers, trucking companies and construction companies. He has tried commercial cases involving allegations of defective construction, improper roadway design, diseased agricultural products, insurance bad faith, sexual harassment, first-party insurance coverage and housing discrimination.
Frank has been recognized for his trial skills by the American College of Trial Lawyers and the American Board of Trial Advocates. Chambers USA: America's Leading Lawyers for Business has awarded him nationwide recognition in the field of Product Liability & Mass Torts. He also is active in the Product Liability Advisory Council, the American Bar Association, the Defense Research Institute and the American Inns of Court. Frank has lectured before the Product Liability Advisory Council, the Association of Defense Counsel of Northern California, the San Francisco Trial Lawyers Association and Hastings College of the Law on such topics as international discovery, trial evidence, techniques of cross-examination, expert witnesses, discovery, bad faith and insurance coverage for employment torts. He also has conducted seminars on “Liability for Failure to Warn: A Cautionary Tale for Manufacturers” and “Direct and Cross Examinations.”
Frank provides pro bono service through the San Francisco office’s homeless advocacy programs.
Representative Trial Matters
Bifolck v. Philip Morris USA, No. 06-1768, (U.S.D.C. Conn.). Plaintiff Vincent Bifolck alleged that his wife, Jeanette Bifolck, died of lung cancer when she was 42 years old. Mr. Bifolck contended his wife’s lung cancer was caused by smoking the Marlboro and Marlboro Lights brands. Plaintiff and decedent met when they were children, and, in an unusual development, Mr. Bifolck was the one who introduced his future wife to smoking cigarettes when she was 13 years old. Although Mr. Bifolck quit smoking at age 35, his wife continued smoking, according to Mr. Bifolck’s claim, because she was too addicted to quit. The jury returned a verdict for Philip Morris USA by answering “no” to the verdict form’s first question, which asked whether plaintiff had proven beyond a preponderance of the evidence every element of his claim for negligent design under the Connecticut Product Liability Act. The verdict was returned on the third day of deliberations.
Dubinsky v. Philip Morris USA, No. 14-CA-26783 (Fla. Cir. Ct., Brevard Cty.). In this Engle matter, the plaintiff claimed that her husband had smoked Philip Morris cigarettes for many years, and contracted his fatal disease while residing in Florida. At trial, the plaintiff's adult son testified that he could not remember when his father had first shown signs of his smoking-related disease. On cross-examination, the son admitted that he had provided former testimony admitting that his father’s disease first manifested before he had moved to Florida. The jury returned a defense verdict for Philip Morris.
Chacon v. Philip Morris USA, No. 8-102 (11th Judicial Dist. Fla., Miami-Dade Cty.). Frank obtained a defense verdict for Philip Morris in a case where the plaintiff sought $19 million in damages on behalf of the wife and children of the decedent who had smoked Philip Morris’ cigarettes for many years. Although decedent Robiel Chacon moved his wife and children to Florida in the 1980s, he maintained a residence in New York City in order to manage a business he owned. The plaintiff contended that Chacon was a Florida resident for the purpose of determining membership in the Engle class, and Frank challenged that assertion. The jury rejected the plaintiff's argument, and returned a verdict for Philip Morris.
Geronga v. Ford Motor Co., No. 524889 (Cal. Super. Ct., San Mateo Cty.). In a case where a plaintiff sought $42 million in damages, Frank obtained a full defense verdict for Ford, the sole defendant at trial. In 2013, five women died when a limousine that had been stretched from a Lincoln Town Car caught fire while on a bridge crossing San Francisco Bay. When the car was stretched, its capacity was limited to six rear passengers; the limo operator later modified the car to carry up to 12 people. At trial, Frank argued that the later modification caused the overloading that led to the fracture of the floor structure and its contact with the driveshaft, ultimately causing the fire. Cross-examination of the limo operator revealed that the operator had altered the limo’s records after the fire.
Verduzco v. Ford Motor Co., No. 615207 (Cal. Super. Ct., Stanislaus Cty.). Frank successfully defended Ford Motor Co. from claims that the entire line of Taurus sedans were defective. The case involved catastrophic injuries to a young vehicle occupant allegedly caused by the vehicle’s design. The speed of the crash and biomechanical reconstruction was hotly contested by the parties, and both parties’ experts ran multiple car-to-car crash tests to support their theories. The plaintiff claimed not only that Ford failed to conduct adequate pre-production rear-impact safety testing, but also that catastrophic injuries were caused by intrusion from an inadequately designed rear structure combined with excessive deformation of an allegedly defective front seat. His complaint said Ford should have warned consumers about the design, as rear-end collisions are the most common type of car accidents in the U.S.
Countering that the vehicle’s design was safe and defect-free, Ford argued the plaintiff’s injuries were caused by an aftermarket speaker box located in the trunk. Ford also asserted that the driver of the SUV caused the crash and all the resulting injuries by negligently taking his eyes off the road to reach for a bottle of Gatorade. The plaintiff sought more than $18 million in damages—including $8 million in economic damages as well as punitive damages in an unspecified amount. The Stanislaus County Superior Court granted Ford’s motion for non-suit on the punitive damages claim before trial. On April 10, 2015, after a seven-week trial, the jury returned a 10-2 defense verdict for Ford.
Durkee v. Ford Motor Co., No. 14-617 (N.D. Cal.). The plaintiffs filed a putative class action involving alleged unlawful and fraudulent warranty practices, but the court granted Ford's Rule 12(b)(6) motion for failure to state a claim. In a copycat case, Potter v. Ford Motor Co., No. 13-5095 (N.D. Cal. September 22, 2014), the plaintiff settled on terms favorable to Ford and voluntarily dismissed.
Sammarco v. Philip Morris USA, No. CACE 08022603 (Fla. Circuit Ct., Broward Cty.). In March 2014, a Broward County jury awarded the plaintiff $2.4 million in compensatory damages, assigning 45 percent of comparative fault to Philip Morris. Following the trial, Frank and the Shook team learned that the plaintiff had filed a personal injury suit claiming mesothelioma as a result of asbestos exposure. The Shook team filed a motion for a new trial, which the court granted due to the newly discovered evidence. The matter is still pending.
Gilchrist v. Ford Motor Co., No. 11CECG04230 (Cal. Sup. Ct., Fresno Cty.). A trial jury found Ford’s design of the Hydro Boost system on its Ford F250 diesel truck was not defective in design and that the cause of a 2011 accident, attributing the cause to the driver, who steered left into oncoming traffic and collided with plaintiff’s car. Plaintiff had sought more than $200 million in compensatory and punitive damages.
In Re: Tobacco Litig., No. 00-C-5000 (W.Va. Cir. Ct., Ohio Cty.). In April 2013, more than 601 consolidated personal injury cases went to trial, including 346 in which Shook’s client was a defendant. The jury returned a verdict finding for the defendant on all counts except a single failure to warn claim involving fewer than 10 plaintiffs; an appeals court upheld the jury verdict, including a finding that the plaintiffs were not entitled to punitive damages. The remaining claim is expected to be tried in 2018 in Phase II of the litigation.
Clayworth v. Pfizer, No. S205726 (Cal. Sup. Ct.). Frank represented Pfizer when Clayworth, Meyers Pharmacy Inc., Golden Gate Pharmacy Services Inc., and 12 other retail pharmacies accused pharmaceutical companies of conspiring to inflate drug prices in the U.S. and to keep lower-priced Canadian drugs off the market in violation of the California Unfair Competition Law and the Cartwright Act. The Supreme Court refused to rehear the consolidated antitrust suit; in August 2012, the First District Court of Appeal upheld summary judgment for the defendants, finding that plaintiffs failed to provide any evidence to support their claims that Canadian pharmaceuticals were consistently priced below those sold in the U.S.
Durbin v. Ford Motor Co., No. FCS028866 (Cal. Super. Ct., Solano Cty.). Frank was lead trial counsel in this SUV rollover case; plaintiffs stipulated to a defense judgment after the court excluded the plaintiff’s seatbelt expert, allowed evidence of the plaintiff’s blood alcohol levels and precluded punitive damages claims.
Frailey v. RJ Reynolds, (Fla. Cir. Ct., Duval Cty.). Frank represented R.J. Reynolds in this wrongful death action, which he tried to a defense verdict.
Schwarz v. Philip Morris USA, (Ore. Circuit Ct., Multnomah Cty.). In a 2002 trial of a wrongful death action, a jury awarded $150 million in punitive damages against Philip Morris. The award was reversed on appeal, and Frank was brought in as the new lead trial counsel in the retrial. The jury returned a 9-3 verdict awarding $25 million in punitive damages.
Boeken v. Philip Morris USA, (Cal. Sup. Ct., Los Angeles Cty.). Frank was brought in as new lead trial counsel in a retrial of a $3 billion damage award in a wrongful death action. On retrial, the jury awarded plaintiff $12.8 million.
Grill v Philip Morris USA, No. 05-9174 (S.D.N.Y.). In a case where the plaintiff sought more than $300 million in damages, the court first granted Philip Morris’ motion for summary judgment, dismissing the plaintiff’s prayer for punitive damages. After deliberating for only a few hours, the jury returned a unanimous verdict for Philip Morris on the remaining claims.
Bullock v. Philip Morris USA, No. BC 249171 (Cal. Super. Ct., Los Angeles Cty.) In August 2002, a California jury awarded a plaintiff $850,000 in compensatory damages and $28 million in punitive damages. Citing the due process clause of the Fourteenth Amendment, which prohibits grossly excessive or arbitrary punishment, state appellate judges agreed the punitive damage award should be heard by a new jury. The punitive damage claim was retried in August 2009, and the award was reduced to $13.8 million.
Whiteley v. Philip Morris USA, No. S178178 (Cal. Super. Ct., San Francisco Cty.) In early 2000, a jury found for the plaintiffs and awarded them $22 million, which included $20 million in punitive damages. In 2004, the California Court of Appeal reversed the verdict, ordering a retrial of three of the claims. In January 2007, the second jury awarded $2.6 million in compensatory damages but hung on the issue of punitive damages against Philip Morris. The plaintiffs moved for a retrial, in which Frank represented Philip Morris; after deliberating for five days, the jury returned a 10-2 verdict for his client.
Belen v. Ford Motor Co., No. 419981 (Cal. Super. Ct., San Mateo Cty.). Frank, with co-counsel Snell & Wilmer, obtained a settlement for Ford and a Ford dealership in a difficult case that had been considered unwinnable. Belen involved claims for compensatory and punitive damages brought against Ford, Peninsula Ford of Burlingame and driver Lawrence Stevens arising from a rollover crash that killed four passengers. The crash occurred after Stevens and his six passengers neared the end of an all-night trip from California to Las Vegas in Stevens’ 1997 Ford Aerostar. Just before the crash, Stevens was driving northbound on I-15, going about 70-75 miles per hour. He drove the Aerostar into the center median where it rolled over three times, landing right-side up in the southbound lane. During the course of the rollover crash, four of the passengers were ejected from the Aerostar, despite the fact that each was wearing a seatbelt. All four died. The plaintiffs claimed that Stevens negligently drove the Aerostar and caused the crash, but also claimed that the Aerostar’s seatbelts, sliding door and side windows were defective in design, and that the design flaws contributed to the deaths of the four passengers. Plaintiffs also claimed that Peninsula Ford had contributed by negligently failing to repair the Aerostar. The case settled when Ford’s final witness testified.
Cory v. Ford Motor Co., No. BC275178 (Cal. Super. Ct., San Bernardino Cty.). In a case that was recognized as one of the top 10 California defense verdicts of the year, Frank represented Ford when a plaintiff, who was a passenger in a Ford LTD that rolled over during an accident, alleged that the car’s defective roof caused the injuries that left him a quadriplegic. After a three-month trial, the jury returned a verdict for Ford.