In a 12-month period last year, U.S. federal courts saw 48,642 personal injury suits filed. Nearly 32,000 of those suits were product liability cases.1 Thousands more were filed in state courts throughout the country. Clearly, product liability is a hot area.
While the lines between this practice area and toxic tort or other personal injury claims may become blurred, product liability generally refers to a claim of personal injury, death, or damage to property caused by a product. Depending on the jurisdiction, these lawsuits, which target businesses that make or supply the product, may spring from claims of strict liability, negligence, or breach of warranty of fitness. Attorneys who practice in this area are knowledgeable of epidemiological evidence, medical monitoring, market share liability, Daubert,2 and the economic-loss doctrine—especially those few practitioners who have reached the top.
"Some believe you have to be a rocket scientist to understand the subject matter. You don't," says Sandra Phillips, vice president and assistant general counsel and section leader for products litigation at Pfizer, Inc. "The biggest misconception is that you have to have a science or medicine background. It is helpful but not imperative." Phillips believes, however, that it is imperative to have dedication to excel in this practice area. "You have to commit to do it and not be deterred," says Phillips, who finds the practice area offers the opportunity to grapple with "real-life medical issues" that "make a difference in people's lives."
Law & Politics magazine recognized Phillips as one of Texas' best lawyers under the age of 40 in its 2004 "Texas Rising Stars" listing. She also received the 2001-02 Houston Bar Association President's Award for outstanding service to the community and the profession. Prior to joining Pfizer, Phillips was the managing partner of Shook, Hardy & Bacon LLP's Houston office. Phillips was also a partner in the Houston office of Baker & Hostetler, LLP. At Pfizer, Phillips is a leader in devising and implementing litigation risk management strategies, as well as counseling on various matters to help advance Pfizer's business.
Grasp the Big Picture
Phillips mentors several women and minority lawyers at Pfizer and in the company's outside law firms on career development issues. She advises attorneys who aspire to manage a corporation's product litigation to gain a broad view of the litigation field while at a law firm.
"They have to be exposed to the big picture. If you are more of a role player, you won't get that breadth of experience. Take on a more managerial role," Phillips counsels.
One leading product liability attorney who can attest to the value of the big-picture perspective at both the legal department and the private law firm is Ellen Reisman, a leading attorney in Arnold & Porter LLP's Product Liability and Mass Tort Litigation group. Based in Los Angeles, she previously served as associate general counsel of American Home Products (now Wyeth) and as vice president, legal division of Wyeth-Ayerst Pharmaceuticals, where she was noted as the "principal architect of Wyeth's defense strategy" in Chambers USA 2006: America's Leading Business Lawyers.3 The same publication also ranked Arnold & Porter as a Tier One (the highest level) firm in product liability.
"I feel it has given me a different perspective of litigation. When you are in-house, you are focused on the business of the company, policy issues, and cost effectiveness. I like to think I brought some of that with me to A&P," says Reisman, whom, in 2001, The National Law Journal ranked as one of the country's top 50 women litigators. Recently, she was named to "The Best Lawyers in America"4 list for mass tort litigation. She also received an AV ranking, the highest peer review rating, from Martindale-Hubbell.
One of the lead defense attorneys in the massive diet drug litigation and a negotiator of the national diet drug class action settlement, Reisman has also represented Pfizer in the Shiley Heart Valve and Feldene arthritis medication cases. She also served as national counsel for Hoffman-La Roche Inc. in the sedative "Versed" litigation. Reisman believes that an obvious and intense dedication to the client is key to excelling as a product liability attorney.
"They need to know you will walk through fire for them. You really have to be committed to do whatever it takes, to put in the hours, to get on the plane, to sit down and figure it out," says Reisman. "You have to make their problems your own. While that gives you sleepless nights sometimes, that is what generates the trust on the part of the client."
Know the Product and More
To help the product liability defendant "solve its problem," Reisman believes an attorney must acquire a deep understanding of the product at issue.
"It is important to sit down with the people who are more knowledgeable about the facts and the product. You need to sit down with them for a few days. Read everything you can get your hands on," recommends Reisman. "With medical studies, you just have to read them. You should also have a consulting medical expert that you use as a resource." Debra E. Pole, a partner in the Los Angeles office of Sidley Austin LLP, agrees that in this area, there is no substitute for preparation.
"Preparation is key. You learn that product inside and out. You know that product better than anyone. You can talk about the science of the product to anybody, the engineering aspect of that product. You have nothing better to do than know that product," says Pole, who reiterates that a scientific background is not necessary to acquire this knowledge. "I don't need to know all the chemistry in the world. I just need to know the chemistry that surrounds this particular product and once I've learned it, I've got it."
Pole is a Fellow in the American College of Trial Lawyers. She is also recognized in The Best Lawyers in America in the mass tort, product liability, and personal injury litigation categories. Pole was national trial and coordinating counsel in the silicone breast implant and diet drug litigation. She advises that attorneys must also "learn" their adversaries by scrutinizing their speeches and published work, as well as querying others that have had contact with them.
Practice Civility
Named to The National Law Journal's lists of "Top 10 Trial Attorneys" and "Top 50 Women Litigators in the United States," Pole recalls a time when she was either the only woman or one of very few women, and even then the only black woman assigned to a given matter. While times have changed in the product liability area (including the presence of more women and minorities among its upper echelon), she advises attorneys to be cognizant that the product liability bar remains a small one where courtesy is valued.
"You start to see some of the same people over and over again. A lot of the attorneys that are nationally known believe in civility," says Pole. "I am a strong believer in civility in the profession—it is a losing art but not a lost art. I think it is still salvageable."
Learn to Coordinate
Noting that Pole is commonly requested to "marshal" the nationwide defense of breast implant and asbestos suits, this year Lawdragon 500, a quarterly guide that provides rankings of lawyers and judges, named her as one of the country's leading litigators. Pole's view of what it takes to excel as national coordinating counsel is straightforward: "Communication skills and very good response time. Keep all outside counsel engaged, make sure their bills are paid timely, and that everybody plays well in the sandbox together," advises Pole. "You also have to be brutally honest with people. They may be friends but not the best lawyers for a particular lawsuit. You tell them it's nothing personal; you want to win."
Sheila L. Birnbaum, who heads Skadden, Arps, Slate, Meagher & Flom, LLP's Complex Mass Tort and Insurance Group, believes that the roles of national trial counsel and national coordinating counsel in product liability cases require different skill sets.
"As coordinating counsel, you are bringing all kinds of administrative, strategic, and communication skills to the table. Those skills may be quite different from someone who goes into court frequently and does a great cross-examination," says Birnbaum. "Often great trial lawyers do not have the organizational skills or the interest in coordinating."
Based in New York City, Birnbaum was a law professor and associate dean at New York University School of Law before building Skadden's practice group from the ground up. Chambers USA 2006: America's Leading Business Lawyers rates Birnbaum as exceptional in this practice area, and she recently received the Chambers USA Award for Excellence. She also holds an AV rating from Martindale-Hubbell. In June 2006, The National Law Journal named Birnbaum to its list of the "100 Most Influential Lawyers in America." Named also to the 2006 PLC Cross-border5 rankings as among the three leading product liability attorneys, Birnbaum was national counsel for Dow Corning Corporation in the breast implant litigation, for Aventis Crop Science in several class actions and multidistrict litigation arising out of biogenetic corn, and for Thompson-Delaco in the over-the-counter drug Phenylpropanolamine (PPA) litigation. She served as lead counsel for American Stores, Inc. in a class action involving contaminated milk. This year, Lawdragon 500 named Birnbaum among the leading litigators, noting that she "blazes a trail for women."
Know the Law
Birnbaum, who has argued many significant product liability appeals throughout the country, including the United States Supreme Court, believes that the philosophy that has always kept her in good stead is that there are no shortcuts to knowing your case or the applicable product liability law.
"You have to know the substantive law better than the next guy. You will have a leg up and clients will see that they can rely on you and they will continue to rely on you. There is no substitute for being on top of both the substantive and procedural law. Then you have to use all of your communication skills with the court and adversaries," advises Birnbaum.
Be Flexible
Pharmaceuticals, medical devices, asbestos, breast implants, lead paint, and automobile rollover cases are among the subcategories of cases that product liability attorneys handle. The decision as to whether to specialize in any particular subcategory is weighty.
"For some people, having a subspecialty is very helpful, especially in pharmaceuticals and medical devices. They are very important areas today," says Birnbaum. However, based on her experience of over 25 years in the field, she cautions that the terrain could and likely will change.
"Automotive litigation used to be on the cutting edge. Now it is pharmaceuticals. In the future, it may be biotech materials," notes Birnbaum. "I think you have to be flexible and be prepared to move to the next arena and to build up expertise in new areas as well."
In 2000, Michael D. Jones, a partner at Kirkland & Ellis in Washington, DC, successfully defended NL Industries in the first lead paint case ever to go to trial. In August 2006, as trial counsel in a lead paint jury trial in Mississippi, Jones scored another defense for client NL Industries.
"These days in particular, clients like to go to someone who has done that kind of case before. It is advantageous even if you do other types of things," says Jones, whose success with punitive damage opposition is also commonly noted. Jones' lead-paint victory was heralded by The National Law Journal as one of the "Defense Verdicts of the Year." In 2003, Black Enterprise named Jones among "America's Top Black Lawyers," and this year, Lawdragon 500 named him among the country's leading litigators. In 2005, Jones was inducted as a Fellow of the American College of Trial Lawyers. An AV-rated attorney, he is recognized in Who's Who in America and was named a highly recommended attorney in dispute resolution in Global Counsel, The Law and Leading Lawyers Worldwide. Washingtonian also recognized him as one of the "75 Best Lawyers in Washington, DC." Chambers USA also has ranked Kirkland & Ellis as a Tier One firm in product liability.
Develop Effective Trial Strategy and Technique
To mount an effective defense to a product liability claim, Jones suggests developing a theory upon which to try the case to the jury early on, and using that as the framework for developing the case. When he prepares to defend a case, Jones initially views the facts from the plaintiff's perspective. This enables him to avoid overlooking some of the key arguments that the plaintiffs are likely to make.
"I can write a powerful statement that draws on emotions and the science. It is what I call 'mixing the poison.' Then I step back and ask, 'What am I going to have to say to get me back in the game?'" Jones reveals.
Jones earned a degree in English from Dillard University before attending Georgetown Law Center and believes having a liberal arts—rather than scientific—background has served him well as a trial attorney.
"I am far more a liberal arts, theatre type of guy than science," says Jones. "The theatre helps with the ability to tell a story. Everyone can relate to stories, and creating a compelling case for the jury is very important." Indeed, in the more than 25 years that Chilton D. Varner has practiced in the product liability area, she has noticed that only a small group of top product liability practitioners have a technical or scientific background. The majority tends to come from other disciplines—a fact she also views as an advantage.
"For me, it has been valuable to come from a liberal arts background. I don't make assumptions about how much people can understand. It has made me a better teacher for the jury," says Varner, who earned her undergraduate degree in religion from Smith before attending Emory Law School. "I also think you have to work hard to be interesting when you are asking people to learn something they don't know."
Maintain Proper Mindset and Demeanor
Varner, a senior partner in King & Spalding LLP's product liability practice in Atlanta, counsels that product liability practice is not for everyone.
"Unless you really have an interest in the subject matter of product liability—an interest in how things work—you should find another practice," recommends Varner. "You need to be interested in taking a technical issue that you may not know anything about and learning everything there is to know about it." She also warns that attorneys in this practice area who are unable to "reinvent" themselves with each case risk burning out.
In January 2004 The American Lawyer selected King & Spalding's product liability practice as one of the top three practices in the country. Chambers USA ranks both Varner and her practice group in the Tier One category among their peers. An AV-rated attorney, Varner was named for the 11th year to The Best Lawyers in America list in 2006 for personal injury litigation. Also named among Lawdragon 500's leading litigators, Varner learned early on how best to succeed in an adversarial practice area.
"I had to learn how to be firm and strong in my convictions without being strident. I think that is true of either gender in the product liability area, although I do think it presents at times a slightly stronger challenge for women in terms of jury perception," says Varner, who was the first woman to be named partner in King & Spalding's Litigation Practice Group.
Recognized in the 2005 International Who's Who of Product Liability Defence Lawyers6 as the leading product liability practitioner in Georgia, Varner has served as trial and appellate counsel for some of the largest automotive, pharmaceutical, and medical device manufacturers. She currently represents GlaxoSmithKline as national coordinating counsel and lead trial counsel in litigation involving the antidepressant Paxil, and as national coordinating co-counsel and lead trial counsel for Purdue Pharma in nationwide litigation over the pain medication OxyContin. She was the first private law firm attorney to serve on the Executive Committee of the Product Liability Advisory Council (PLAC), which files amicus briefs on important product liability issues.
Learn from Mentors
Varner believes that product liability attorneys who are coming up through the ranks can benefit greatly from the guidance of seasoned practitioners.
"If you are fortunate enough to have a mentor who is a lead trial lawyer, that is the best thing that can happen to you as a young lawyer. Lead trial lawyers are willing to cede responsibility. That is clearly the best jumpstart that you can have," says Varner, who had three male mentors—all accomplished trial lawyers, but each very different from the others as well as Varner. "My challenge was to look at what they did exceedingly well, and then to translate that into working well for a female lawyer."
Fellow top product liability attorney Joan M. Haratani believes so strongly in the benefits of mentoring that even though she has practiced for 22 years and is a partner at Morgan Lewis & Bockius LLP's San Francisco office, she continues to call upon 10 to 15 mentors.
"I am a firm believer in the fact that mentoring can make the difference in your career. Mentors help you navigate the political waters of life. They can be personal inspiration and offer moral support," says Haratani. "I believe in multiple mentors because one size does not fit all."
An AV-rated attorney, Haratani was lead attorney in a high-exposure product liability case involving a food product, as well as a member of a national litigation strategy team for a Fortune 100 company. She served as lead trial lawyer for a products company and obtained a complete defense verdict after a lengthy trial for her client, a medical device manufacturer. Haratani currently serves as co-national counsel for an international healthcare company.
"Part of me is a wannabe medical doctor. I enjoy the scientific issues and I think the people stories are fascinating," says Haratani, who recently obtained a very favorable resolution in a case in which the plaintiff sought $50 million in compensatory damages from her client, a food manufacturer. Recognized as one of the "Top 75 Women Litigators" by the Daily Journal, Haratani was selected as a "Super Lawyer of Northern California" for 2004, 2005, and 2006 by Northern California Super Lawyers magazine and has been listed four times in California Law Business as one of "California's Top Rainmakers."
Haratani is president of the Bar Association of San Francisco, the first female minority president in the organization's 134-year history. A past president of the Asian American Bar Association of the Greater Bay Area, Haratani has been recognized as one of the 500 most influential Asian Americans by Avenue Asia Magazine.
Accept the Challenge of Being a Diverse Attorney
"There are few Asian Americans in this practice area," observed Haratani. "Being different does not bother me. I don't mind the challenges. What I've learned from being a woman of color is that all eyes are on you. You need all t's crossed and i's dotted because the safety rope is very short and very thin," says Haratani. "I thrive on that challenge and breaking down stereotypes and assumptions."
The advice that Thomas J. Yoo, a partner at Reed Smith LLP in its Los Angeles office, offers to minority and women attorneys who wish to excel in this practice area is simple: "I think the key to success as a product liability attorney is the same as with any area of life: You need to tell the truth, be responsible and respectful of others, work very hard, and try your best to achieve your goals, which in our field is to win," says Yoo, who was named one of Southern California's best lawyers age 40 and under in the 2004 Super Lawyers list of "Rising Stars." In January 2006, The American Lawyer named Reed Smith's product liability practice as one of three finalists for the litigation department of the year award. In 2005, Yoo's firm also was named to The National Law Journal's "Defense Hot List."
"I think that the key to being a good litigator and trial lawyer is simply to find and present the truth as effectively as possible," says Yoo, who has defended manufacturers of pharmaceuticals and medical devices. Yoo also serves as one of the lead counsel for the welding industry in product liability suits in the western United States. "In general, as grave as a client's situation may seem, there is always something that is helpful. It takes hard work, tenacity, and creativity to find things that may not present themselves in an obvious way."
Write and Speak on Product Liability Topics
Yoo has both written and spoken on product liability topics in numerous venues, including Mealey's Litigation Update7 and the annual conference of the California Industrial Hygiene Council. His articles and lectures have addressed topics such as the learned intermediary doctrine, advertising, and manganese exposure, among others. Yoo advises that product liability attorneys can benefit from such activities because of the exposure. "It improves your communication skills and your ability to connect with an audience. At the same time, you learn what works for you and what doesn't, and what you are capable of," says Yoo. "However, the challenge is balancing your commitment to your clients, who come first, and the time needed to prepare and deliver the presentation."
Michael L. Martinez, a partner at Crowell & Moring LLP in Washington, DC, appreciates the benefits and the challenges of which Yoo speaks. "I have had friends ask, 'Where do you get the time to do it?,' " says Martinez, who has written several articles for publication in Legal Times, the American Bar Association Expert Witness Committee's Expert Alert, and other publications.
"Part of the benefit is marketing yourself and getting your name out there as someone who does this type of work. But there is also an intellectual curiosity to it. One of the sidelines to writing these articles is you get invited to speak," says Martinez, who plans to speak at an October 2006 conference on chemical products and liability litigation.
An AV-rated attorney, Martinez was recently named in The Best Lawyers in America for mass tort litigation. He is serving as lead trial lawyer for a Fortune 50 company in the defense of eight consolidated product liability cases. A former assistant U.S. attorney, Martinez previously received the Gallinghouse Award for Excellence in Financial Litigation from former Attorney General Janet Reno.
Finally, Martinez advises that product liability attorneys labor over one misperception—that they defend "big bad corporations"—which he eagerly refutes.
"There are a lot of litigation-happy people out there who think that corporations are doing bad things and that is not always true," says Martinez. "A lot of companies are good corporate citizens and they make sincere attempts to ensure that the welfare and well being of customers are protected."
Luckily, it is these top product liability attorneys who are protecting the welfare and well being of those corporations.
Notes
1. See Federal Judicial Caseload Statistics, March 31, 2005 (published by the Office of Judge Programs Statistics Division, Administrative Office of the United States Courts) at Table C-2.
2. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and the line of subsequent cases interpreting it governing the admissibility of testimony from expert witnesses.
3. The annual guide compiled and published by Chambers USA and Partners ranks and provides editorial commentary on the reputation and expertise of business lawyers and law firms in the United States.
4. Published biennially, The Best Lawyers in America is a peer-rated listing compiled by the research firm Woodward/White, Inc.
5. PLC Cross-border is a publication of the Practical Law Company that provides comparative information on lawyers and law firms worldwide and makes recommendations as to leading practitioners in practice areas.
6. The International Who's Who of Product Liability Defence Lawyers is a publication of Law Business Research Limited, a London-based publishing group that reports on the international legal services marketplace.
7. Mealey's Litigation Update is a special report on litigation topics published by LexisNexis Division of Reed Elsevier Inc.
From the September/October 2006 issue of Diversity & The Bar®