Malcolm E. Wheeler

Biography

Cases

• Won Colorado Supreme Court reversal of a unanimous court of appeals ruling in a case of national importance to the insurance industry. In its ruling for Travelers, the Court held that the "notice-prejudice rule" does not apply to "no-voluntary-payment" provisions in insurance policies. This was WTO's fifth consecutive, fully-argued victory before the Colorado Supreme Court in two-and-a-half years. Law360 named Stresscon one of the top five insurance rulings of 2016.
• Assisted a biotech company in an appellate briefing before the Federal Circuit, resulting in reversal of an adverse summary judgment and remand to the state court where our client had filed the complaint.
• Won a unanimous defense verdict in California Superior Court for Nissan in a lawsuit involving a claim that an allegedly defective seat system resulted in the plaintiff's quadriplegia following a horrific car crash.
• Won an 88% reduction in the appeal of a punitive damages award in a case tried by another firm.
• Defeated certification of a multistate class action in Arkansas federal court involving claims that certain Whirlpool-made refrigerators were defective.
• Won an appeal for Pfizer in a groundbreaking preemption case before the Third Circuit.
• Defended Ford Motor Co. in a four-month certified class action trial involving $2 billion in consumer fraud claims. On the day set for closing arguments, the plaintiffs agreed to a no-cash, coupon-based settlement for the California class and classes in three other states with pending parallel actions.
• Obtained dismissal with prejudice of plaintiffs' class action allegations in a putative nationwide class action alleging that more than one million of Whirlpool's refrigerators were defective.
• Won a reversal and a new trial on the punitive damages phase of a product liability case originally tried by another firm in 1998. Persuaded the second jury to award only one-third of the amount awarded in the initial trial.
• Obtained summary judgment for Pfizer on preemption grounds in a case alleging that a popular antidepressant caused suicide.
• Defeated class status and a recall attempt against Nissan in a putative class action involving airbags.
• Won exclusion of a star expert for the plaintiffs in antidepressant suicide litigation and won summary judgment for Pfizer in federal court in Kansas in a case alleging that the company's antidepressant led to the suicide of a minor.
• Obtained summary judgment for Pfizer in a case alleging wrongful death, failure to warn, and other claims involving the company's popular antidepressant, and won on appeal in the Ninth Circuit.
• Argued and won a U.S. Supreme Court victory for Honda in a precedent-setting case involving federal preemption standards as applied to airbags in the automotive industry.
• Won a New Hampshire "no airbag" trial for Ford before getting all no-airbag cases held preempted in Geier in the U.S. Supreme Court.
• Won dismissal on federal preemption grounds in a no-airbag case.
• Won dismissal of no-airbag claim on federal preemption grounds in the Michigan Court of Appeals.
• Lebouef v. Ford - Favorable decision on federal preemption grounds in a no-airbag case.
• Wolfe v. Ford - Favorable decision on federal preemption grounds in a no-airbag case.
• Barnhill v. Ford - Won a favorable decision on federal preemption grounds in a no-airbag case.
• Angelopolus v. Ford - Won a favorable decision on federal preemption grounds in a no-airbag case.
• Hubbard v. Ford - Favorable decision on federal preemption grounds in a no-airbag case.
• Turnquest v. Ford - Favorable decision on federal preemption grounds in a no-airbag case.
• Waters v. Ford - Favorable decision on federal preemption grounds in a no-airbag case.
• Martin v. Ford - Won a favorable decision on federal preemption grounds in a no-airbag case.
• Teitloff v. Valcon Materials - Won a favorable decision on federal preemption grounds in a no-airbag case.
• Winters v. Ford - Won a favorable decision on federal preemption grounds in a no-airbag case.
• Wright v. Ford - Won a favorable decision on federal preemption grounds in a no-airbag case.
• Won affirmance by the Texas Court of Appeals of a lower court decision granting summary judgment to Ford on federal preemption of a no-airbag claim.
• Won reversal by the Ninth Circuit of verdict for plaintiffs in a defamation action against Howard Hughes by the fired head of his Nevada operations.
• Successfully defended Ford Motor Co. against criminal charges of reckless homicide in the design of the Pinto automobile.
• Successfully defended the first "no-airbag" case tried to a verdict.
• Successfully defended the first airbag fatality case tried to verdict.
• Obtained a defense verdict in a fire fatality case alleging design defects in appliance.
• Won reversal in Tenth Circuit of plaintiff's verdict; case settled in hip implant case.
• Won affirmance in the Tenth Circuit of summary judgment on federal preemption grounds.
• Directed verdict on manufacturing defect; hung jury; case settled.
• Won dismissal of no-airbag case by Ninth Circuit on federal preemption grounds.
• Won summary judgment on federal preemption grounds on inadequate warning labels claim.
• Won summary judgment from the district court in a design defect case. When plaintiffs appealed, the Court of Appeals affirmed in part, reversed in part, and remanded.
• Won favorable decision on federal preemption grounds in a no-airbag case.

Publications & Speaking Engagements

• Co-Author, "Litigation Financing: Balancing Access with Fairness," 13 J. Tort Law 2, (November 2020).
• "A Look Through Tinted Glass: What Does the Future Hold for Preemption in Motor Vehicle Litigation?," Prod. Safety Liab. Rptr., Vol. 39, No. 20, (May 16, 2011).
• "The Trial of Class Actions," presented at Product Liability Advisory Council, (April 28, 2011).
• "The Changing Face of Preemption in Product Liability Actions," presented at American Bar Association's Emerging Issues In Motor Vehicle Product Liability Litigation, (March 31, 2011).
• "Preemption in Pharmaceutical Cases," presented at Association of American Law Schools, (January 8, 2011).
• Presenter, "Defending Against Punitive Damages Before and During Trial," DRI Masters of Product Liability Litigation Conference, (April 8, 2010).
• Presenter, "Using FDA Pronouncements to Defend Product Liability Claims," DRI Drug and Medical Device Conference, (May 14, 2009).
• Presenter, "Punitive Damages: How Much, How Far, What Conduct and Where Committed," The Network of Trial Law Firms' one-day Litigation Management SuperCourse, (January 31, 2003).
• Presenter, "Legal and Tactical Evidentiary Issues in Punitive Damages Cases," 2002 Annual Litigation Institute, (October 11, 2002).
• "Choice of Law: Little-Recognized Punitive Damages Issues," Leader's Prod. Liab. L. & Strategy, at 1, (March 1999).
• "Product Liability Aspects of the Risks of Technological Change," 25 Can.-U.S. L.J. 137, (1999).
• "How Now, Daubert: Dilemma About Application," Leader's Prod. Liab. L. & Strategy, at 1, (April 1997).
• "Honda Motor Co. v. Oberg: A Guide for Punitive Damages Reform," Prod. Liab. Advisory, at 8, (August 1994).
• "Defendants Confront Onerous Pretrial Tactics," Leader's Prod. Liab. L. & Strategy, at 1, (January 1993).
• "Strict Liability in Design-Defect Cases: A Doctrinal Structure in Need of a Foundation," Wash. Legal Found. Legal Studies Division, (November 16, 1990).
• "The Need for Narrow Tort Reform: Abolishing Strict Liability, in Product Liability Reform: Debating the Issues," K. Chilton ed., (1990).
• "A Proposal for Further Common Law Development of the Use of Punitive Damages in Modern Product Liability Litigation," 40 Ala. L. Rev. 919, (1989).
• "Comment on Landes's and Posner's Positive Economic Analysis of Products Liability," 14 J. Legal Stud. 575, (1985).
• "Pre Dismissal Notice and Statutes of Limitations in Federal Class Actions After American Pipe & Construction v. Utah," 48 S. Cal. L. Rev. 771, (1985).
• "The Use of Criminal Sanctions to Regulate Product Safety," 13 J. Legal Stud. 593, (1984).
• "Manufacturers' Criminal Liability," Chapter 1B in L. Frumer & M. Friedman, Products Liability, (1983).
• "A Comment on Recent Developments in Judicial Imputation of Post-Manufacture Knowledge in Strict Liability Cases," 6 J. Prod. Liab. 127, (1983).
• "The Constitutional Case for Reforming Punitive Damages Procedures," 69 Va. L. Rev. 269, (1983).
• "Product Liability: Civil or Criminal," 17 Forum 250, (1981).
• Enforcing Product Safety: A Maze of Legal Issues and Ramifications, Nat'l L.J.,, (December 29, 1980).
• Manufacturers: Wrong Targets for Threat of Criminal Sanctions?, Nat'l L.J.,, (December 22, 1980).
• Cost-Benefit Analysis on Trial: A Case of Delusion and Reality, Nat'l L. J., , (October 20, 1980).
• The Public's Costly Mistrust of Cost-Benefit Safety Analysis, Nat'l L.J., , (October 13, 1980).
• "In Defense of Economic Equal Protection," 22 U. Kan. L. Rev. 1, (1974).
• "Parole Eligibility for Prisoners Serving Consecutive Sentences in Kansas: A Comment," 21 U. Kan. L. Rev. 167, (1973).
• "The Statute of Limitations for Antitrust Damage Actions: Four Years or Forty?," with Robert J. Jones, 41 U. Chi. L. Rev. 72, (1973).
• "Antitrust Treble-Damage Actions: Do They Work?," 61 Cal. L. Rev. 1319, (1973).
• "Toward a Theory of Limited Punishment II: The Eighth Amendment After Furman v. Georgia," 25 Stan. L. Rev. 62, (1972).
• "Toward a Theory of Limited Punishment: An Examination of the Eighth Amendment," 24 Stan. L. Rev. 838, (1972).
• "Some Observations on Tie-Ins, the Single-Product Defense, Exclusive Dealing and Regulated Industries," 60 Cal. L. Rev. 1557, (1972).
• "A Reexamination of Antitrust Law and Exclusive Territorial Grants by Patentees," 119 U. Pa. L. Rev. 642, (1971).
• "Toward the Peaceful Modification of Treaties: The Panama Canal Proposals," 21 Stan. L. Rev. 938, (1969).
• "Judicial Enforcement of Contract-Arbitration Agreements," Note, 21 Stan. L. Rev. 673, (1969).

Press

• "World-Class Litigators" – Chambers USA 2024 Ranks WTO
• Chambers USA: WTO "Acts Totally with the Client's Interest at Heart."
• Chambers USA 2020: WTO Leads Nationwide, Colorado
• 27 WTO Lawyers Recognized in The Best Lawyers in America 2019
• Law360, "ALI Gives Final OK On Liability Insurance Guidelines," May 22,2018.
• WTO Leads Top 100 in Colorado Super Lawyers
• 26 WTO Lawyers ranked in the 24th Edition of The Best Lawyers in America
• Who's Who Legal Names Seven from WTO for Product Liability Defense
• Chambers USA 2017 recognizes Wheeler Trigg O'Donnell among the top litigation firms nationwide and in Colorado
• 42 WTO Lawyers Named to the 2017 Colorado Super Lawyers List
• Stresscon a Top-Five Insurance Case of 2016
• 20 WTO Lawyers ranked in the 23rd Edition of The Best Lawyers in America®
• Chambers USA 2016 Ranks WTO Among Top Firms Nationwide and in Colorado
• Wheeler Trigg O'Donnell Wins Five Consecutive Colorado Supreme Court Victories in Two-and-a-Half Years
• Denver Business Journal, "No Side Deals on Insurance Claims, Court Rules," May 6, 2016.
• Law360, "Sears, Whirlpool Settle Dishwasher Row With Repairs, Rebates," September 14, 2015.
• Malcolm Wheeler Named to Benchmark Litigation
  Top 100 Trial Lawyers in America
  
• WTO Leads the Nation for Ranked Lawyers in Product Liability & Mass Torts Defense in Chambers USA 2015
• Law360, "Colo. Justices Urged to Limit Notice-Prejudice Rule," June 4, 2015.
• Legal 500 US Ranks Wheeler Trigg O'Donnell in Three Areas Nationwide
• Best Lawyers® 2015 Ranks 20 WTO Attorneys
• Benchmark Litigation 2013 Ranks Seven WTO Partners Among 33 Colorado Litigation Stars
• Law Week Colorado, "Malcolm Wheeler Inducted Into Trial Lawyers Academy," July 31, 2012.
• Malcolm Wheeler Inducted as a Fellow in the International Academy of Trial Lawyers
• Legal 500 US Ranks WTO as One of Two Top Product Liability and Mass Tort Defense Firms in the Automotive Industry
• Benchmark Litigation Ranks Six WTO Partners Among 30 Colorado Litigation Stars
• Best Lawyers® Names Michael O'Donnell and Malcolm Wheeler 2012 Denver Lawyers of the Year
• Denver Business Journal, "Early Communication Negates Surprises for Law Firm," July 22, 2011.
• Super Lawyers, "Normal Genius: Malcolm Wheeler Can Win a Case Just by Showing Up," April, 2011.
• Malcolm Wheeler Featured in Colorado Super Lawyers® and "Top Point Getter" for 2011
• Law360, "Most Admired Attys: Wheeler Trigg's Malcolm Wheeler," September 13, 2010.
• WTO Obtains 88% Reduction in Punitive Damages on Appeal
• WTO Defeats Class Certification in Multistate Product Liability Class Action
• Malcolm Wheeler Receives PLAC Lifetime Achievement Award
• Legal 500 U.S. 2008 Calls WTO "Best Firm for Class Actions"
• WTO a Top 20 U.S. Product Liability Law Firm per Chambers USA
• Pfizer Presents WTO with Performance Award
• Law Week Colorado, "Super Achievement for First Time, Three Lawyers at One Firm Make the Top Ten," April 21,2008.
• Denver Business Journal, "7 to be Honored at Sam Cary Bar Event," October 8, 2006.
• Internationally Recognized Product Liability Lawyers
• Wheeler Admitted to American College of Trial Lawyers
• "Dateline NBC: Blind Spot?" NBC News television broadcast, (July 23, 2002).
• The Benefits and Risks of the Class of Selective Serotonin Reuptake Inhibitors (SSRIs), (90 Minutes broadcast)
• Mal Wheeler Gains Favorable Ruling in U.S. Supreme Court Airbag Decision
• Mal Wheeler Argues Honda Case in U.S. Supreme Court

Other Experience

Legal Memberships, Activities, and Honors

Teaching Positions