Daniel J. Thomasch

Dan Thomasch, a New York litigation partner, is a member of the firm's Executive Committee and a past head of the firm's litigation practice.

Mr. Thomasch’s practice focuses on the trial of complex cases, most frequently product liability and patent infringement actions.  He represents companies in the biotechnology, pharmaceutical, chemical and medical device industries.

The following is a sample of his more notable cases:

• Wyeth.  Mr. Thomasch currently serves as national lead trial counsel for Wyeth in more than 350 product liability cases involving claims that childhood vaccines containing the preservative thimerosal have caused the development of “autistic-spectrum disorders” in some vaccinated children.  In August 2007, Mr. Thomasch first-chaired a two-week Frye hearing in a Maryland state trial court -- the first such hearing nationally that challenged the admissibility of scientific evidence purporting to link thimerosal-containing vaccines and autism.  On December 21, 2007, Hon. Stuart R. Berger issued an opinion granting Wyeth's motions and excluding all of plaintiffs' causation expert witnesses (Blackwell v. Sigma Aldrich, Inc., et al.), which finding was recently affirmed unanimously by Maryland's highest court.  Blackwell v. Wyeth, et al., No. 112 Sept. Term (2008) (Md. May 7, 2009).  Mr. Thomasch argued, and won, the first preemption motion ever decided under the National Childhood Vaccine Injury Act, in Militrano v. Lederle Labs, 2006 WL 489200, at *2 (App. Div. 2d Dep't Feb. 28, 2006), and has since won similar motions in multiple state and federal courts.  In prior representations of Wyeth (formerly known as American Home Products Corporation), Mr. Thomasch won cases involving prescription drugs and OTC products, including a defense verdict as lead trial counsel in a jury trial of the first case involving alleged neurological injuries from the use of the Norplant System, a contraceptive implant.  Ramirez v. Wyeth Laboratories (Sup. Ct. N.Y. Cty.).    
• Dow AgroSciences LLC.  Mr. Thomasch serves as national lead trial counsel for Dow AgroSciences and its subsidiary, Mycogen Plant Science, Inc. in patent litigation involving methods for making genes and inserting them into plants to make the plants insect-resistant.  Mr. Thomasch first-chaired and won a jury trial in the District of Delaware, in which plaintiff Syngenta Seeds asserted patent claims that it argued covered all transgenic corn products, both commercial and pre-market.  During the trial, Mr. Thomasch successfully argued for a JMOL of non-infringement of two of three asserted patents; the asserted claims of the third patent were all found invalid on multiple grounds by the jury.  The defense judgment was affirmed in all respects by the United States Court of Appeals for the Federal Circuit in 2007.  Syngenta Seeds, Inc. v. Monsanto Co., et al.  In earlier litigation involving related technologies, Mr. Thomasch argued and won: (i) a Federal Circuit reversal of a summary judgment that had invalidated one of Mycogen’s patents on grounds of anticipation by prior invention (Mycogen Plant Sciences, Inc. v. Monsanto Corp., 252 F.3d 1306 (Fed. Cir. 2001)); and (ii) a Federal Circuit affirmance of a trial court victory invalidating a patent asserted against Mycogen (Monsanto Co. v. Mycogen Plant Science, 261 F.3d 1356 (Fed. Cir. 2001)).
• Alcon, Inc.  Mr. Thomasch has served as lead counsel for Alcon in patent litigation involving prescription drugs used for lowering intraocular pressure in patients suffering from glaucoma. In 2002, Mr. Thomasch won, on summary judgment in the United States District Court for the Central District of California, a Hatch-Waxman case presenting novel questions of federal patent law, which judgment was subsequently affirmed by the United States Court of Appeals for the Federal Circuit. 
• Lederle Laboratories.  Mr. Thomasch first-chaired three multi-week jury trials of cases involving permanent injuries to infants allegedly resulting from immunization with diphtheria-tetanus-pertussis (DTP) vaccine. All three cases were won in the trial court; two of the defense judgments were affirmed on appeal, and the third resulted in dismissal of plaintiffs’ appeal on jurisdictional grounds.  Thomas v. American Cyanamid Co., and Dube v. Lederle Laboratories were both won on causation grounds, despite the fact that in both cases, plaintiff’s medical causation claims were supported by the testimony of a primary treating physician and one or more retained expert witnesses. Jones v. Lederle Laboratories was successfully tried on a state-of-the-art defense.

Before joining Orrick, Mr. Thomasch was a partner at Donovan Leisure Newton & Irvine LLP.

Admitted in

• New York

Court Admissions

United States Court of Appeals

• Second Circuit
• Third Circuit
• Sixth Circuit
• Ninth Circuit
• Eleventh Circuit
• Federal Circuit

Memberships

• American Bar Association
• The Association of the Bar of the City of New York
• Member, Defense Research Institute: Drug and Medical Device Litigation Steering Committee (1996–present)
• Member, American Intellectual Property Law Association

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