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Overview

Products liability lawyers represent companies or individuals in lawsuits arising out of alleged defects in consumer products that cause injuries to the public, generally in class action lawsuits. Because products liability cases involve many parties, jurisdictions, and claims, they are complex and often long-lasting cases. In large law firms, products liability attorneys most often represent the companies being sued by a group, or class, of plaintiffs. Plaintiffs’ attorneys generally operate out of smaller firms and often take cases on contingency basis, meaning the attorneys do not earn any fees unless they reach a settlement or a victory in court. Products liability cases often involve very large and long discovery processes.

Featured Q&A's
Get an insider's view on working in Products Liability from real lawyers in the practice area.
Sheila L. Birnbaum, Partner
Dechert LLP

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.

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.

Sabrina Strong, Partner/Co-Chair
O'Melveny & Myers LLP

Describe your practice area and what it entails.

While I represent clients across a wide range of industries and handle a broad set of matters, I focus on product liability and consumer claims in mass tort proceedings, class actions, and government enforcement actions. My role has run the litigation gamut, from developing and coordinating overall defense strategy to serving as trial counsel to leading appellate teams.

What types of clients do you represent?

I represent a truly diverse set of clients—insurers, health care providers, pharmaceutical and medical device companies, banks, utilities, and packaged-goods manufacturers—many of them household names and leaders in their fields. When they face litigation, the ramifications often go beyond legal issues, touching on significant economic, political, and regulatory questions.

What types of cases/deals do you work on?

I currently co-lead a team defending a pharmaceutical company that has been drawn into nationwide litigation over the marketing of opioid painkillers—a series of cases set to shape the future of U.S. tort law. I am defending a health care company in a hospital reimbursement matter. I am also defending electric scooter pioneer Bird in a consumer class action. I have multiple appeals pending in wrongful death and personal injury cases in California, many involving claims against local governmental agencies. For most of my appellate matters, I am retained by insurers to develop and implement appellate strategies for trial teams composed of litigators from other firms. In that role, I work hand-in-hand with trial counsel not merely to preserve the record for appeal, but to create it.

How did you choose this practice area?

Products liability law is dynamic. Consumer products and preferences are always changing, as are related enforcement and regulatory regimes, which means products liability lawyers regularly confront and navigate novel factual and legal issues. I consider myself a lifelong student, and the unending variety of our products liability work has afforded me the opportunity to immerse myself in radically different and fascinating fields.

What is a typical day like and/or what are some common tasks you perform?

One of the best things about my job: there is no typical day. In any given week, you might find me conducting witness interviews, defending depositions, writing briefs, vetting and preparing experts, or appearing in court to defend my clients.

What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?

Communication—the ability to think, write, and speak clearly—is the most important skill for a products liability lawyer. You have to have a comprehensive grasp of the legal issues in any given case, of course, but products liability lawyers often delve deeply into non-legal areas, learning about developments in technology, science, engineering, and medicine. While it is not necessary to have a background in any of those specialized fields, products liability lawyers must have the communication skills to translate complicated concepts into concise and simple ideas for the judge or jury.

What is the most challenging aspect of practicing in this area?

The most challenging aspect of products liability law is the high-stakes nature of the work. O’Melveny regularly handles bet-the-company cases that pose real danger to a client’s reputation, brand identity, and hard-earned consumer trust. I thrive on understanding my clients’ businesses—on making their concerns my own—which can add to the demands of the job. At the same time, it’s rewarding to work on significant matters for companies filled with dedicated, caring employees and to see them through difficult waters.

What misconceptions exist about your practice area?

There is a misconception that products liability lawyers are called on only when a company has been accused of wrongdoing. Part of providing excellent client service is anticipating future issues and taking proactive measures to help clients reduce their exposure. That means staying on the cutting edge of regulatory developments, recommending best practices, and issue spotting for potential risk.

What are some typical tasks that a junior lawyer would perform in this practice area?

O’Melveny is committed to efficiently staffing our cases, so junior products liability lawyers can expect to work closely with senior counsel and partners from day one. We involve our junior lawyers at every stage of products liability litigation, which might entail drafting research memoranda, conducting electronic discovery, assisting with and attending witness interviews and client meetings, and drafting discovery documents, pleadings, and motions.

What are some typical career paths for lawyers in this practice area?

Products liability lawyers who become O’Melveny partners tend to work with blue-chip companies across industries, defending high-profile litigation that often involves iconic products. When attorneys do make a career move, it is often for an in-house opportunity at a client. Our products liability alums have moved into legal and business roles at companies, many of them global leaders in the automotive, consumer and retail product, entertainment, pharmaceutical, and technology sectors. Other products liability alums have pursued careers in the government sector, particularly at the Department of Justice.

Sabrina Strong, Partner/Co-Chair—Consumer Class Actions

As co-chair of O’Melveny’s Consumer Class Actions practice, Sabrina Strong handles complex business litigation, focusing on class actions and mass torts involving medical devices, pharmaceutical products, consumer goods, and financial services products. She has successfully tried multiple high-profile cases to verdict, twice earning a spot on the Daily Journal’s annual “Top Defense Verdicts” list. Capitalizing on her unique combination of hands-on trial experience and sophisticated appellate work, Sabrina regularly litigates cases as appellate counsel—both preserving and creating a trial record for appeal—for high-exposure matters (including personal injury and wrongful death) across a wide variety of industries. For more than a decade, Sabrina has lectured on class actions and California’s Unfair Competition Law, including serving on the faculty of the ABA’s National Class Action Institute. In 2008, she co-founded the Ninth Circuit Appellate Advocacy Clinic at the UCLA School of Law. She is the President of the Los Angeles chapter of the Association of Business Trial Lawyers and is on the Board of Directors of the Los Angeles chapter of the I Have a Dream Foundation. Sabrina was named a “Rising Star” in the products liability field by Law360. She has also been recognized as a Southern California “Rising Star” by Super Lawyers.

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