The following is an excerpt from Practice Perspectives: Vault’s Guide to Legal Practice Areas.
Sheila L. Birnbaum, Partner—Product Liability and Mass Torts
Sheila L. Birnbaum is widely considered one of the country’s most exceptional practicing litigators. She has been named by Fortune as one of the 50 most powerful women in American business, Chambers USA as a “star individual” in the area of product liability, and Crain’s New York Business as one of the 25 most influential women in New York business.
Ms. Birnbaum is co-chair of Dechert’s Product Liability and Mass Torts practice and focuses on complex product liability, mass torts, and insurance litigation. She is one of the country’s preeminent product liability defense lawyers, having served as national counsel or lead defense counsel for numerous Fortune 500 companies in some of the world’s largest and most complex tort cases.
She is consistently ranked as a leading lawyer by many legal publications. The National Law Journal has recognized her multiple times as one of the “100 most outstanding members of the legal profession,” in addition to being profiled as one of three most outstanding lawyers of the year. She has been chosen as the leading product liability lawyer in the world by Who’s Who Legal in its product liability defense lawyers category each year since its inception in 2005.
Describe your practice area and what it entails.
Product liability is the area of law that protects consumers if they are injured by manufactured products. It’s a form of tort, and mass torts means there are larger groups of plaintiffs instead of just one. These can be huge cases stretching over many years and involving very complex legal and scientific issues.
So in my practice, I advise on multidistrict litigation and state court coordinated actions, enforcement actions by attorneys general, environmental and toxic torts, RICO claims, state consumer-fraud and deceptive-practice claims, claims for medical monitoring, claims based on market share liability and novel theories of causation, and high-stakes cases where plaintiffs seek punitive damages. I also advise clients on warning and recall issues; responsible document creation; and retention programs, public relations and communication strategies, and other methods for mitigating current and future litigation risks.
What types of clients do you represent?
I defend major Fortune 500 corporations, especially in the pharmaceuticals, medical products and devices, asbestos, chemicals, smokeless tobacco, agriculture, foods, alcoholic beverages, computers, consumer products, and building materials sectors. In my career, I have advised some of the world’s largest companies in their most critical situations, including State Farm, Dow Corning, Pharmacia, Wyeth, Pfizer, and Purdue Pharma.
What types of cases/deals do you work on?
One of the most exciting recent cases I worked on was advising State Farm Mutual Automobile Insurance Company in a historic victory in the U.S. Supreme Court, which reversed a US$145 million punitive damages award against the company as unconstitutionally excessive. I was also the lead counsel for Dow Corning Corporation in its breast implant litigation, which made national headlines. My team is currently involved in the three most high-profile trends in this area: opioid litigation, environmental toxic torts, and claims involving the use of talc products.
How did you choose this practice area?
It chose me. My national moot court question in law school involved products liability, and in my first job, I worked on a major litigation involving oral contraceptives. The rest is history!
What is a typical day like and/or what are some common tasks you perform?
I don’t have a typical day. There is no such thing for me. One day I might be arguing a case in front of the Supreme Court, and the next day, I may be interviewing witnesses and talking to scientific experts. Or I might be negotiating with attorneys on the other side or advising my own client on litigation strategy. But no matter how carefully I plan and try to allocate time for specific tasks, I find very quickly in the morning that events intervene. Situations arise, and my energy has to be directed towards managing those situations. My team works on some of the most high-profile bet-the-company disputes, so I have to be super-responsive to any client needs.
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
One thing product liability lawyers need to master is procedure, especially in federal courts. It can also be very useful to have a scientific background—for example, in areas such as biology or epidemiology in the context of pharmaceuticals disputes. However, I personally don’t have formal scientific qualifications, so it’s not essential. If you are interested in the subject, you can pick up what you need to know, and—actually—my non-specialist background arguably makes it easier to explain scientific concepts to jurors, as they often will not have scientific backgrounds either.
What is the most challenging aspect of practicing in this area?
For me, the most challenging element in my working day is managing the sheer scale and range of disputes. We have dozens of cases ongoing at any one time, with successive deadlines in both the state and federal courts. The challenge is to keep on top of those practical considerations, while also creating the strategies that bring these matters to a settlement or successful conclusion.
What do you like best about your practice area?
I really enjoy the collegial atmosphere within my team. Many of us have worked together for years, and we have enjoyed many successes as a group. I find it very satisfying to work in tandem with a client on a make-or-break dispute and getting the right result after years of hard work. I also take a lot of pleasure in seeing the younger attorneys coming up through the ranks, taking on responsibility, impressing clients, and making their mark. Litigation is an area where younger lawyers have an opportunity to shine.
What misconceptions exist about your practice area?
You sometimes hear that litigation is male dominated. It certainly isn’t in my group! I believe strongly that diversity is really important, not only because it’s the right thing to do, but it’s also important with courts and juries that we have diverse groups of people in front of them. My team has women who go to court all the time, and it is something we actively promote.
How do you see this practice area evolving in the future?
Product liability and mass torts has been a steadily growing area of practice for some years, and I can only see that trajectory continuing. The fact that it is a growing area of practice makes it very attractive for young lawyers coming up through the ranks.