In a nutshell

Product liability involves personal injury or property damage litigation arising from alleged design and manufacturing defects, or information/warning deficiencies, in products. Litigation can consist of individual cases arising from one-off injuries, though in recent years much of it has been conducted through mass torts. Mass torts comprise class actions and/or multiple related individual cases brought by plaintiffs. Most cases within a mass tort do not usually go to trial as they tend to be resolved early through mediation or settlement.

Product liability lawyers also advise on how to avoid litigation, since clients are increasingly interested in prevention and mitigation of the costs and risks of significant product liability litigation.

Attorneys are also often required to advise on related, nontraditional product claims, such as government investigations, which frequently arise alongside private claims. This quasi-criminal aspect involves defending the client against suits filed by state attorneys general and investigations conducted by the Department of Justice, often simultaneously.

The major industries that see the lion's share of product liability suits are tobacco, pharmaceutical, consumer products, chemicals and medical devices. BigLaw firms normally defend the manufacturers of the products.

What product liability lawyers do

• Meet with company witnesses to put together the company's defense.
• Fact investigation and discovery – find out what actually happened.
• Product investigation – get to know the product.
• Choose and prepare experts; arrange for experiments if necessary.
• File motions under the Frye or Daubert doctrines to dismiss inadequate plaintiffs' experts.
• Write briefs on evidentiary, class action and dispositive motion issues, as well as legal analysis.
• Take and defend fact and expert depositions.
• Argue cases before juries.
• Manage post-trial steps.

Realities of the job

• Mass torts will typically include some form of consolidation or aggregation of the claims, ranging from a class action – in which plaintiffs have significant issues in common – to a federal multidistrict proceeding coordinating all the cases for pretrial purposes.
• Cases are heard all across the country, though plaintiffs may like certain jurisdictions better than others for tactical reasons. These include East Texas, Atlantic County in New Jersey, and Philadelphia. "The bank" district in Los Angeles is popular for its history of awarding multimillion and billion-dollar verdicts. It has been described by advocates of tort law reform as "judicial hell on earth."
• Not all cases are tried the same way. There are a variety of different trial models that judges are experimenting with, including the bifurcated, reverse-bifurcated, and bellwether models. Depending on the model, different strategies will be needed, and will sometimes require a mock jury exercise to see what will work best. Attorneys can suggest alternate trial plans, though the judge has the final say. Once the trial has begun, it is difficult to change how it is tried, though with mass tort, which involves many cases, it is possible to try iterative cases differently. Judges experimented extensively with the thousands of cases in the fen-phen litigation in the Philadelphia courts.
• The main drivers of complex product liability litigation are the business and strategic decisions made by the plaintiffs' Bar, which do not necessarily involve pure scientific analysis of a product.
• Plaintiff lawyers jump from product to product and industry to industry and try to apply the same model to different cases. The tobacco industry has often seen plaintiffs' innovations before any other, whereafter plaintiffs will experiment with those approaches in different industries.
• Many clients work extensively with the FDA, so current FDA employees cannot be used by the defense as expert witnesses, due to the conflict of interest. Instead, attorneys will work with retired FDA employees to learn about the regulatory and approval processes.
• Much of the work done preparing for trial will turn out to be for cases that never make it to trial, since most mass torts are resolved before then. But attorneys do not know which of the 20,000–30,000 claims filed will actually be tried. There is, however, a winnowing process whereby judges eventually select a smaller pool of cases to be tried.
• There is a large amount of routine paper and electronic discovery required, though many firms use staff and contract attorneys to do this job.
• You don’t have to have a background in science to be a product liability lawyer, though to be a successful one you will have to learn about areas outside the law like engineering, medicine and science. You will also have to be able to communicate complicated scientific ideas to a judge or jury in a clear and simple fashion.
• You may work with some of the world's leading scientists and doctors in the country and the world.
• The job often involves extensive travel for trials and meeting with experts.
• Most product liability work is domestic.

Current issues

• There’s a big push by defendants to move cases from state courts to federal courts, where the evidentiary rules governing expert opinions may be stricter. Plaintiffs are often against such a move and will seek to block it by suing other actors in the supply chain or the prescribing doctor in a medical product case, for example.
• The Obama administration has a stated goal of strengthening the regulatory framework on product safety, which means that regulatory bodies are pursuing product issues more aggressively and that the plaintiff Bar may grow more active in response to governmental initiatives.
• The ‘ObamaCare’ health reforms have imposed a number of new obligations on pharmaceutical and medical device companies, including: (1) fees on brand-name drugs, import levies; (2) the reporting of payments and links to physicians; (3) new provisions for the FDA approval of biosimilar and interchangeable pharma products; and (4) broadening of the scope of various healthcare fraud laws.
• There have been a number of blockbuster mergers in the pharmaceutical industry in recent years (eg the $68 billion Pfizer-Wyeth merger in 2009), creating a concentration of mega-companies in the sector, which means that the potential number of clients from the industry is smaller, but the now-larger companies may face greater product liability risks.
• The pharmaceutical industry is currently a favorite target of the plaintiffs' Bar. Areas that hold potential for future activity are the 'green economy', products related to the controversy over climate change, and emerging nanotechnology.
• Between 1998 and 2006 the pharmaceutical industry spent $855 million on lobbying activities, more than any other industry. One of the industry’s main objectives is the reform of tort laws, as they are often at the receiving end of major tort claims. Lawyers often play an important role in this lobbying process.

What top product liability lawyers say

Sean Wajert, partner, Dechert

"The variety you get is great. One day you might be dealing with cigarettes, the next with automobiles and the one after that with microwave popcorn."

"A product on trial is like a stagecoach going through a valley in the Wild West with bandits on all sides shooting down at you. Some are securities law plaintiffs' lawyers, some are product liability plaintiffs' lawyers, some are consumer fraud plaintiffs' lawyers. You're not just defending the client from traditional product liability claims, but from a whole host of claims beyond that."

“Don’t shy away from opportunities to learn about science and medicine as a law student or young lawyer. It’ll be a big part of your practice, whether you’re on the plaintiff or defendant’s side. Take product liability CLEs if you get the chance. Do whatever you can to find out if it’s an area you really want to be in.”

Diane Sullivan, partner, Dechert

"You're never really sitting in your office shuffling paper. You're out there, talking to Nobel Prize winners, the world's foremost cancer and Alzheimer's researchers, epidemiologists and heart doctors. It's thrilling."

"You don't have to have a background in science to do product liability. I did Political Science and started out doing general litigation work and then narrowed my focus after I realized how exciting it was to be working with the experts."