The Legal 500

Life sciences have replaced tobacco as the most intense and high-stakes battleground in product liability litigation. But several factors mean this is an uncertain time for law firms in the space. First, the Vioxx multi-district litigation (MDL) has been largely resolved with Merck & Co’s $4.85bn settlement plan bringing to an end most cases in the biggest product liability litigation of recent years. Second, Pfizer’s announcement of its acquisition of Wyeth is likely to see the merged corporation rationalize its list of approved law firms (albeit several practices already work for both corporations). Third, and by no means least, the US Supreme Court in March 2009 delivered its long-awaited verdict on Levine v Wyeth.

The Levine verdict may have far-reaching consequences for the federal preemption defense - the notion that manufacturers should not be exposed to liability claims if regulators approve the sale of a drug or medical device (or other product) after assessing the balance between therapeutic benefit versus side effects. By a majority of six-to-three, the Supreme Court rejected Wyeth’s federal preemption claims, ruling that it is primarily the manufacturer’s responsibility to secure appropriate warnings in labeling. The ruling noted that Wyeth could have sought a stronger warning concerning the risk associated with administering the drug in question, Phenergan, by the ‘IV-push’ method without endangering the chances of the FDA approving the drug for use. Many pharmaceutical and medical device cases that had been on stay in other courts awaiting the decision will now begin to move again, and will do so in an atmosphere where the federal preemption defense has been undermined. The verdicts of 2009 will make for interesting reading as other courts interpret the precedents of Levine. And so, despite the Vioxx settlement, it promises to be a busy 12 months in this practice area.

Here we present the firms we deem to be best placed to meet the demands of product liability, class action and mass torts in the pharmaceutical and medical devices sector. With the ‘virtual law firm’ model popular in this arena, our rankings includes practices that may be more narrowly focused but have exceptional talent in some regard: for example, the finest trial lawyers.

Dechert LLP

PRACTICE: ‘An extraordinary practice’ and ‘probably one of the best’, according to clients, Dechert LLP’s ‘excellent’, ‘very effective’ mass torts and product liability practice has been prominent in life sciences in recent years.

As one of four firms providing national counsel for Merck & Co in relation to the Vioxx multi-district litigation (MDL), Dechert LLP played a substantial role in bringing plaintiffs to the table to accept the client’s huge settlement plan for its prescription-only COX-2 inhibiting pain reliever. The settlement is costly, but has banished the specter of massive liability. Dechert LLP attorneys were also the first to win a jury defense verdict in Vioxx, and the first to do so in a case involving long-term use of the drug.

The practice has developed a major focus on pharmaceuticals and medical devices, leaving it well placed to pick up more work in the post-Vioxx era. The arrival in 2006 of partner Kathleen O’Connor, formerly in-house counsel at Merck & Co, has proved to be another benefit of the Vioxx relationship.

16 ‘incredibly talented’ partners focus on life sciences product liability - capacity that clients describe as ‘very deep’ with ‘an enormous amount of experience in mass tort’. This core group can draw on the support of more than 130 attorneys who spend a portion of their practice in the mass torts and product liability group. The practice operates typically as national counsel for multinational clients in a coordinating role or as lead trial counsel nationally or in strategic states. For example, in the Vioxx MDL partners from the team served as co-national counsel, particularly taking the lead on discovery issues, while as New Jersey lead trial counsel, the practice was at the forefront of some of the most important cases in the MDL.

The product liability team blends into a dedicated life sciences/pharmaceutical group, set up to offer a full range of support services to the industry - a big selling point for corporations.

Continuing engagements include lead national counsel representation of AstraZeneca in relation to Seroquel - an atypical anti-psychotic drug implicated in diabetes and related complications. Most of the 10,000 cases have been consolidated for trial in the Middle District of Florida, with some actions in several other state courts.

Recent client wins include being appointed lead trial counsel for Amgen in regard to potential litigation arising out of concerns over its anemia treatments Aranesp and Epogen. The two drugs are among the class of erythropoiesis-stimulating agents (ESAs) to which the Food & Drug Administration (FDA) ordered the addition of black box warning labels in response to safety concerns.

CLIENTS: In addition to those noted above, other clients include Allergan, AmerisourceBergen, Bausch & Lomb, Baxter Healthcare, Boston Scientific, Cardinal Health, GlaxoSmithKline, Johnson & Johnson, Medtronic, Ortho-McNeil and Pfizer.

INDIVIDUALS: Clients report that Ezra Rosenberg in Princeton, who co-chairs the practice, is a ‘top-notch attorney’ whose ‘counsel is very effective’. In the same office, Diane Sullivan is an expert in Daubert and Frye motions and is rated by clients as ‘just a brilliant, brilliant trial lawyer’ and appreciated because ‘she wins her cases’.

Philadelphia-based Benjamin Barnett is ‘an absolute expert on discovery’ while, in the same office, Fred Magaziner is ‘an incredible thought leader’.

Richard Berkman and Stephen McConnell in Philadelphia are also recommended.

Kaye Scholer LLP

PRACTICE: ‘Definitely among the best’, Kaye Scholer LLP’s product liability practice is packed with ‘very skilled trial lawyers’ who clients say display a ‘very high level of intellectual capabilities’. This practice ‘excels in its ability to craft strategic solutions and manage complex matters in an efficient way’, and its 17 partners are ‘very good at analyzing the issues, but can also try the cases’. Most of the lawyers are located in New York, but four Los Angeles partners serve the West Coast. Clients cite ‘depth of talent’ and ‘experience’ as key factors in the appeal of the practice. The ‘very knowledgeable’ attorneys are particularly useful for handling complex MDL - ‘for this type of mass tort, I would think of Kaye Scholer LLP first,’ declares one client - where a relatively high fee structure becomes ‘cost-effective’. Clients acknowledge that Kaye Scholer LLP has made strenuous efforts to help to manage costs. The practice generally serves as national coordinating counsel or as lead trial counsel. Overall, its extensive experience makes it a go-to option in either the pharmaceuticals or medical devices sectors.

Pfizer - and its subsidiaries Pharmacia & Upjohn (P&U) and Warner-Lambert (W-L) - are important clients of the practice. Kaye Scholer LLP remains national counsel in the ongoing hormone replacement therapy (HRT) litigation for P&U, having won 15 of the 16 cases set for trial. In the only loss, Scroggins v Wyeth et al, in July 2008 Kaye Scholer LLP attorneys persuaded the federal MDL judge to vacate a jury award of $7.76m in punitive damages after arguing that expert witness testimony central to the award had been improperly admitted. Among other notable recent developments in the HRT litigation, the practice moved successfully to consolidate five cases involving several hundred claims into the federal MDL in May 2008.

Kaye Scholer LLP enjoys a substantial list of other engagements in this practice area - something the practice is able to handle because, as clients say, ‘the quality of trial teams runs quite deep’. For example, a successful Daubert motion in April 2008 barred three of plaintiffs’ four expert witnesses in the Viagra federal MDL brought against Pfizer, essentially quelling the litigation concerning allegations that the erectile dysfunction drug causes heart attack or stroke.

Attorneys from the practice continue to act as one of four parts of the AstraZeneca’s virtual law firm for Seroquel. For Novartis, it is finishing off the phenylpropanolamine (PPA) litigation and for W-L continues to act in the remaining Rezulin cases. Among its medical device engagements, the practice has dismissed all but two of the several hundred cases brought against Boston Scientific on matters concerning the Protegen Sling urinary incontinence device.

CLIENTS: The practice also represents Boston Scientific on other matters. Other clients include Allergan, AstraZeneca, Celgene, Lutron Electronics and Pfizer.

INDIVIDUALS: New York-based practice co-chairs, Steven Glickstein and Jay Mayesh are highly regarded and both ‘see the big picture’, according to clients. Glickstein is a ‘leading trial attorney’ and ‘very good on the technical side’, and Mayesh is ‘very practical and very knowledgeable’. Litigation department chairman Aton Arbisser in Los Angeles is ‘one of those guys who is an intellectual and a very good lawyer’, being ‘experienced, smart, strategic and sophisticated’.

Clients identify James Herschlein and Randolph Sherman in New York, as well as Jan Dodd in Los Angeles, as ‘very good trial lawyers’ who are able to ‘present cases in a way that is understandable to juries’ - a particularly valuable quality in complex medical science.

Michael Rogoff and Arthur Brown in New York are also recommended.

Shook, Hardy & Bacon LLP

PRACTICE: Product liability ‘is a sweet spot’ for the talents of Shook, Hardy & Bacon LLP and clients say the firm ‘has the infrastructure to respond quickly and effectively’. It enjoys an international reputation for product liability representation and its 125-lawyer pharmaceutical and medical device group ensures specialist coverage for this industry sector, providing not only product liability and class action counsel but related expertise such as intellectual property and FDA regulatory advice. The practice’s use of more than 100 research analysts and paralegal support helps it to supply expertise in a more economical manner, a cost structure aided by the firm’s Midwestern origins despite the addition of East and West Coast offices. Clients describe the practice as providing ‘excellent case work-up at a cost-efficient level’ and an ability to show ‘a good balance of attention to detail while balancing cost considerations’.

Clients describe the practice as being stocked with ‘really smart, capable and talented attorneys’, and, ‘in terms of customer service, they are really extraordinary’.

It is a practice that represents manufacturers and distributors and, somewhat unusually and conflicts of interest permitting, is willing and able to represent clients in both the branded and generic sectors of the market. Its attorneys often act as national counsel and are equally adept at actually trying cases.

For example, Shook, Hardy & Bacon LLP represents Bausch & Lomb as national litigation counsel pursuant to Bausch & Lomb’s recall in 2006 of ReNu with MoistureLoc contact lens solution. The practice has responsibility for overseeing the federal MDL in South Carolina, and coordinated and consolidated proceedings in New York.

Notable court wins in 2008 included obtaining a defense verdict in the Eastern District of Arkansas on behalf of Johnson & Johnson and co-defendants in relation to some of the defendants’ over-the-counter cold remedies. The February 2008 ruling led to claims being dismissed with prejudice after several Arkansas counties sought reimbursement of costs relating to methamphetamine manufactured using the pseudoephedrine active ingredient contained in the medicines.

Other current engagements include roles as national counsel for Pfizer on the Neurontin, which has an MDL pending in Boston and other cases in New York, and national counsel to Guidant (a subsidiary of Boston Scientific) in relation to more than 8,000 claims relating to its defibrillators and pacemakers.

CLIENTS: Other clients include Astellas, Eli Lilly, Sanofi-Aventis and Sulzer (a subsidiary of Zimmer).

INDIVIDUALS: Harvey Kaplan in Kansas City is widely esteemed as a leading figure in the field, clients describing him as ‘a seasoned litigator with a wealth of experience and insight’.

Clients also appreciate Kansas City-based Mark Hegarty, who is ‘incredibly organized and thorough’. In the same office, Marie Woodbury, Matthew Keenan, Michael Koon and Scott Sayler are also recommended. Clients regard Gene Williams in Houston as an ‘effective problem-solver’.

Sidley Austin LLP

PRACTICE: Sidley Austin LLP’s product liability practice exhibits ‘the highest of talent and professionalism’, according to clients, and an ability to ‘consistently give well thought-out and concise advice’. The product liability practice provides good geographic coverage - mainly operating out of Chicago, with teams in Los Angeles and Washington DC - and solid resources with 71 US-based attorneys and its experience extends into both pharmaceutical and medical devices sectors. Members of the firm’s wider healthcare practice group also act on life sciences litigation for clients in areas such as IP, antitrust and appeals. Typically, the practice serves in an international or national counsel role for mass torts and MDL, or in an advisory capacity with regard to risk management or signal cases. Major clients describe a service that is ‘quality and value’, ‘cost-efficient and excellent’.

Generally, clients regard the practice as ‘first-rate’, ‘among the best in the US’ and report satisfaction at the stability in the team - ‘lawyers don’t come and go, so that clients can take advantage of cumulative knowledge build-up’.

Sidley Austin LLP attorneys enjoy an extensive relationship with AstraZeneca: the practice is heavily involved in the ongoing Seroquel litigation and is national appellate and litigation counsel in relation to Nexium, a treatment for heartburn and gastroesphageal reflux disease (GERD). It also operates as national coordinating counsel for litigation concerning AstraZeneca’s Crestor cholesterol treatment. For Pfizer and its subsidiaries, GD Searle and Pharmacia, Sidley Austin LLP lawyers won dismissal of purchase claims relating to Celebrex and Bextra COX-2 inhibitors on the grounds of federal preemption, a significant win that stymied attempts to sue for economic loss. For General Electric and GE Healthcare, the practice is providing defense in MDL in the Northern District of Ohio concerning allegations that GE’s gadolinium-based contrast agent, Omniscan, causes nephrogenic systemic fibrosis.

CLIENTS: Other clients include Baxter Healthcare, Bayer, Boehringer Ingelheim, Eli Lilly, Hoffman La Roche, Johnson & Johnson, Pfizer, Sanofi-Aventis, Schering-Plough, Shire, Smith & Nephew, Takeda Pharmaceutical and Wyeth.

INDIVIDUALS: Maja Eaton in Chicago is ‘a phenomenal medical, scientific and legal thinker’ who is praised repeatedly, particularly for her ‘litigation management capabilities’. Clients also regularly identify Sara Gourley, another Chicago partner, as ‘service-oriented, very collaborative and cooperative’. In the same office, Eugene Schoon is described as ‘excellent’, ‘an outstanding advocate’ because of ‘his litigation skills, case management, and ability to spot issues’. Chicago-based practice chair Michael Davis is similarly ‘outstanding’ and a ‘go-to guy’, rated by clients as ‘extremely brilliant and a very accomplished attorney’ and someone who is ‘able to use his litigation experience to act as a counselor in a very impressive way’.

Clients highlight Susan Weber in Chicago and Rebecca Wood in Washington DC for their brief-writing skills, the latter particularly because ‘she is one of the best brief-writers on federal preemption’. David Barlow in Chicago is ‘particularly adept at dealing with scientific issues’. Debra Pole in Los Angeles is appreciated variously for her ‘client focus’, ‘strategic acumen’ and ‘mass tort experience’.

Williams & Connolly LLP

PRACTICE: ‘In the top echelon,’ Williams & Connolly LLP is a litigation-focused firm with a splendid reputation, and a fine track record in life sciences product liability in particular. Based in one office in Washington DC, the firm staffs a 32-partner product liability, torts and medicine practice that clients rate as ‘at the top of its field’ or ‘exceptional’. It can bring to bear some of the country’s best appellate lawyers. Clients appreciate most the group’s trial talents, strategic insight and organizational ability.

Williams & Connolly LLP’s one-office approach dictates a need to use local counsel in complex mass torts and MDL, perhaps one reason why clients deem it so good - ‘the best I have seen’, in the words of one - at coordinating and working with local partners. But its ‘strong list of very, very capable first-chair trial lawyers’ makes it a front-running option for trying strategically critical cases.

Williams & Connolly LLP’s product liability attorneys enjoy a longstanding and extensive relationship with Wyeth. The relationship dates back to the practice’s role as co-counsel in the fen-phen litigation, but the relationship now revolves primarily around the national trial counsel role in the more than 7,000 class action claims relating to Prempro hormone replacement therapy. Among other active matters, Pfizer has engaged the practice to act as co-lead counsel with DLA Piper in relation to its prescription anti-smoking medicine, Chantix. The practice is also trial counsel for AstraZeneca in the Seroquel MDL, with the first cases pending court in 2009.

The practice was one of Merck & Co’s go-to law firms as national coordinating co-counsel in the Vioxx federal MDL. Although this litigation is winding down in the wake of the settlement plan, this development should be viewed more as an opportunity to free up capacity among leading partners rather than a drop-off in active involvement in the pharmaceutical sector.

CLIENTS: AstraZeneca, Bayer, Pfizer and Wyeth are the practice’s key clients.

INDIVIDUALS: Douglas Marvin is mentioned time and again by clients, being described without hyperbole as ‘a great trial lawyer’ and ‘truly outstanding in terms of coordinating a case’. Stephen Urbanczyk is a good strategist and brief-writer who has ‘a good presence in the courtroom’.

Richard Cooper is an expert on Daubert motions. John Vardaman, Robin Jacobsohn and F Lane Heard are also recommended. All lawyers are based in the Washington DC office.

Bartlit Beck Herman
Palenchar & Scott LLP

PRACTICE: ‘If there is one law firm that could be characterized as go-to for litigation, it is Bartlit Beck Herman Palenchar & Scott LLP ’, says one client in neat summary of the views held by many others about a firm with excellent trial capabilities. Bartlit Beck Herman Palenchar & Scott LLP is not set up to do act on cases from beginning to end but it is supremely adept at stepping in to deliver the knockout blow in trial. It is a firm that is ‘a heavy hammer, the lead trial team model’. Specifically, its go-to attribute is the ability to work up arguments in a key case, and then present it to get a case dismissed or to obtain a winning verdict.

Established in Chicago in 1993, the firm recently added an office in Denver to move away from the one-office model and broaden the availability of its lawyers. It is a trial-focused boutique built on the concept of training top-notch, battle-hardened attorneys to step into the ring for the biggest and best litigation trials regardless of industry. Bartlit Beck Herman Palenchar & Scott LLP has no dedicated product liability or life sciences practice, but several of its leading partners are already steeped in the experience of pharmaceutical litigation. The group seeks out bet-the-company trials or lead trial counsel roles to head up signal cases in complex MDL - for example, leading the charge in key cases in the Vioxx MDL.

Knowing and accepting this model - that the firm does not want or pretend to act as coordinating counsel, or to handle case discovery or routine cases - clients deem the group ‘exceptional’, ‘outstanding’, ‘sophisticated’, ‘unparalleled’ or ‘our most important litigation firm’.

Bartlit Beck Herman Palenchar & Scott LLP’s first-chair trial capacity is unquestionably as good as any other practice but it lacks the full service necessary for the running of mass torts or complex MDL, requiring the support of other full-service firms as part of a virtual law firm model. Nor does it provide the ancillary support - such as FDA regulatory or product recall expertise - that is part of the appeal of broader-based practices. It is ‘top quality, but narrowly focused’.

Recent outings in the life sciences space have included lead trial counsel roles for Philip Beck and Tarek Ismail in several of the landmark Vioxx cases that helped drive plaintiffs in the direction of Merck & Co’s settlement plan. Lawyers from the firm are now involved in the gadolinium contrast agent MDL.

CLIENTS: Other life sciences clients include Bayer, Guidant and Pfizer.

INDIVIDUALS: Clients regard Fred Bartlit and Philip Beck as ‘go-to guys’ and ‘exceptional trial lawyers’. With Bartlit now a senior statesman, it is Beck who has become the most prolific trial lawyer in the firm and, in the view of clients, ‘the best civil trial lawyer in the country’ or ‘the most sought-after lawyer in the space’.

Among the younger partners, ‘terrific young lawyer’ Tarek Ismail debuted as first chair with a win in a Vioxx case in 2006. Clients regard him as ‘amazing’ and ‘an up-and-coming talent with very good fact development skills’. Andrew Goldman has been involved in the gadolinium trials, where commentators ‘have been very impressed’. Adam Hoeflich is another
younger partner who clients recommend, saying he is ‘an excellent trial lawyer’ who ‘embodies what we want in a lawyer’. All of the recommended partners are based in the Chicago head office.

DLA Piper

PRACTICE: Characterized by clients typically as ‘excellent’ or ‘very good quality’, DLA Piper’s product liability practice promotes its capacity to provide national or global litigation capacity, seeking out roles in mass torts and complex MDL which marry up with its high-end fee structure. The group has a good spread of lawyers providing coast-to-coast coverage through four main offices: Baltimore, New York, Philadelphia and San Diego.

The fact that ‘the firm has a global reach’ is particularly valuable to clients concerned about the pitfalls of internationally coordinated litigation. Organization and strategy are its primary strengths, and clients opine that the practice demonstrates an ‘ability to manage complex multi-district litigation’ and ‘does a good job of working with other law firms and maintaining a collegial atmosphere’. One area highlighted by clients as a possible target for improvement would be for the firm to ‘to beef up its FDA regulatory practice’ as an adjunct to the core product liability group.

Overall, however, the practice’s national business with pharmaceutical entities is less extensive than that of the top-tier firms in the sector - and with Pfizer about to buy Wyeth, two of the practice’s key clients will become one. Feedback indicates clearly that DLA Piper is not a first-thought option for the majority of clients. Meanwhile, the practice’s offering has been undeniably weakened by the departure of former practice co-leader, Amy Schulman, who in 2008 departed to take up an in-house role at Pfizer. Other partners in the practice remain of good quality and standing - clients describing how Schulman ‘developed talent - she left behind a bench of talented lawyers’ who ‘spend time getting to know the problem’ - and clients also appreciate the good caliber of senior associates. However, the loss of its star name ‘has been felt’ by clients.

DLA Piper serves as global and national coordinating counsel in product liability litigation for Pfizer’s Celebrex and Bextra, the celecoxib-based COX-2 arthritis-pain relievers in the same class of drug as Merck & Co’s Vioxx. The practice has coordinated defense efforts and helped settle many of the claims. In December 2007, DLA Piper won a hugely significant Daubert motion in the battle by managing to bar expert testimony in the 3,000-plaintiff Celebrex mass tort. The court ruled that there was insufficient scientific evidence to support the argument that Celebrex could increase risk of heart failure or stroke in its standard 200mg daily dose.

The practice also serves as national coordinating counsel for GE Healthcare and its parent company in the gadolinium MDL consolidated in the Northern District of Ohio, along with state court cases in California, Illinois and New Jersey. Gadolinium is a compound that has been linked to causation of the condition nephrogenic systemic fibrosis in patients with severe renal impairment, and which is used in GE Healthcare’s Omniscan, a contrast agent used in MRI scans. DLA Piper’s client is a co-defendant with three other companies.

CLIENTS: As noted above, key representations include GE Healthcare and Pfizer, as well as Wyeth and another major international pharmaceutical manufacturer.

INDIVIDUALS: The ‘outstanding’ Loren Brown in New York inherited the mantle as this practice’s most highly regarded life sciences expert following the departure of Amy Schulman. Clients respect Brown and New York-based Heidi Levine as ‘experienced litigators’. Better known for his automotive work, Joel Dewey in Baltimore has been brought in on the gadolinium litigation and is regarded by clients as a ‘highly skilled’ and ‘very capable trial lawyer’.

Jones Day

PRACTICE: ‘Strategic thinking combined with an attention to detail’ is how clients summarize the ‘superior’, ‘exceptional’ and ‘extraordinary talents’ of Jones Day’s product liability & tort litigation practice. This coast-spanning, 64-partner group offers good strategic coverage across the US market and international reach with additional attorneys in Europe and Asia; it can also draw on the firm’s full-service and international resources.

Exhibiting ‘trial expertise and willingness to cooperate with other firms’, attorneys within the practice are fully capable of trying cases but are particularly valued by clients for their ability to act as ‘national counsel on a pharmaceutical mass tort’. ‘Teamwork among many talented lawyers’ and an ‘absence of egotistical personalities’ are repeatedly themes of client feedback that point to a collegiality ideal for such positions. Clients applaud the group’s ‘depth of talent’ - despite the retirement of the excellent Paul Crist - and its ‘excellent writing ability’, ‘responsiveness’ and ‘efficient and effective legal counsel’, as well as a flexible approach to cost structuring.

The practice is highly rated across industries, but fails to make the top tier of the life sciences sector in part because its body of work in this arena is less substantial than that of the leading firms.

Jones Day provides national counsel to Wyeth for litigation concerning Effexor antidepressant and allegations of suicide by patients. Once seen as a potential big-ticket matter, the practice has successfully navigated the litigation to defend its client. In April 2008, for example, lawyers for the practice appeared before the US Court of Appeals for the Fifth Circuit and secured affirmation of a trial court decision to dismiss on summary judgement the plaintiff’s allegations in Ackermann v Wyeth. The decision was reached on the learned intermediary doctrine. In January 2008, in Dobbs v Wyeth, the practice obtained a summary judgement in another Effexor case, this time using federal preemption as the winning argument.

Federal preemption was also central to victory on behalf of Mentor Corporation in Mathis v Mentor, where Jones Day lawyers defended the client’s Polytef Teflon vocal cord paste.

CLIENTS: The practice also represents Mentor in relation to several other products, while other recent or current clients include Abbott Laboratories, Acromed and TAP Pharmaceuticals.

INDIVIDUALS: Clients admire ‘remarkably effective’ Mark Herrmann in Chicago, consistently lauding him for qualities such as being ‘smart, hard-working and flexible’ and he is rated by some as ‘one of the very best product liability litigation attorneys in the country’. Stephanie Parker in Atlanta, whose broad-based practice encompasses the medical devices sector as well as many other industries, is highly rated by clients and peers alike. Edward Sebold in Houston and June Ghezzi in Chicago are also recommended.

Reed Smith LLP

PRACTICE: Reed Smith LLP’s healthcare practice group is well into its fourth decade of existence, an organizational decision that was ahead of its time and now lends the firm credibility in providing full-service solutions to the life sciences industry. This group blends its talents with a product liability practice that clients say is ‘excellent in every respect’, ‘outstanding’ and ‘absolutely world-class’. These teams together field almost 60 US-based partners - primarily in Los Angeles, New York, Oakland and Philadelphia - in the life sciences arena. Clients relate how the practice staffs up ‘smaller and more tightly knit teams of highly qualified attorneys’.

The practice is increasingly well known for pharmaceutical matters but is probably best known as one of the leading operators in the medical devices sector, where clients deem it to be ‘one of the very best’.

Clients believe that the practice possesses the ‘strategic legal thinking’, depth and scope - including 14 product liability partners internationally - to handle complex MDL and mass torts, but also fields numerous experienced trial lawyers to make it a good all-round option. Other qualities highlighted most often by clients are the attorneys’ ‘ability to focus on what’s important’, ‘responsiveness and conscientiousness’ and an understanding of the business context of any matter. Clients would, however, like to see ‘more back-up lawyers take a lead-trial role’, an area where the practice does not quite match that of the top-tier practices or courtroom champions such as Bartlit Beck Herman Palenchar & Scott LLP and Winston & Strawn LLP.

Reed Smith LLP lawyers represent Pfizer as national and regional counsel for product liability claims involving Mirapex, a prescription treatment for Parkinson disease and restless leg syndrome. Other major roles include serving as national counsel to St Jude Medical in relation to product liability litigation involving heart valves coated with Silzone, and for Medtronic in litigation surrounding bone screws, stents and defibrillators. In April 2008, the practice succeeded in persuading the US Court of Appeals for the Eighth Circuit to reverse class certification of Silzone claims, and in May 2008 stopped 10,000-plus European plaintiffs from achieving class certification in Minnesota. In the ongoing HRT litigation, Reed Smith LLP is regional counsel to Wyeth.

CLIENTS: Other clients include Eli Lilly, Schering-Plough and Zimmer Dental.

INDIVIDUALS: Practice-chair Barbara Binis and Michael Scott in Philadelphia are recommended, clients describing Binis as being ‘exceptionally good’. Clients also frequently recommend ‘very knowledgeable, very collaborative’ Los Angeles-based Michael Brown - who is ‘a class act for trial counsel and strategy’ - and the ‘prompt service and exemplary legal skills’ of Ginger Heyman Pigott in the same office. Indeed, one client demands ‘more lawyers like Michael and Ginger!’

Clients rate Oakland-based Colleen Davies as ‘one of the best strategic minds out there at the moment’, while Steven Kohn in the same office is also ‘excellent’. Janet Kwuon in Los Angeles is an expert on e-discovery, for which clients recommend her.

King & Spalding

PRACTICE: Atlanta-based King & Spalding’s product liability capabilities are staffed by ‘first-rate lawyers’ drawn from the consumer class action, mass tort and product liability practices with experience across many industry sectors. The ‘terrific’ 47-partner group has a growing level of experience in the life sciences sector. This is in part due to a string of important victories, but also to a number of lateral hires with substantial track records in life sciences litigation, including Donald Zimmer and Brenda Buonaiuto from Drinker Biddle & Reath who joined in 2008 to help expand the team in San Francisco. The firm is forcing itself into the consciousness of clients in the life sciences sector and is increasingly perceived as a viable destination for important litigation and a practice that ‘can be relied upon to handle very significant matters’. ‘Excellent judgement’, and a ‘proactive and pragmatic’ demeanor are among the qualities that appeal to clients, who also highlight the group’s ‘good value’ as another plus. On the downside, the practice has a relatively limited client base and is generally absent from the biggest trials.

Ongoing engagements include acting as national trial and appellate counsel to GlaxoSmithKline for product liability and class action claims relating to Paxil antidepressant. In May 2006, lawyers from the practice achieved a noteworthy victory by obtaining dismissal of a case in Philadelphia on the federal preemption defense, a tactic that has been used subsequently to great effect by other pharmaceutical defendants. In 2008, King & Spalding’s successful defense of the client continued with a series of wins on summary judgement against plaintiffs.

In 2007, the practice represented Purdue Pharma in Bodie v The Purdue Pharma Co, a case concerning OxyContin chronic pain reliever wherein the US Court of Appeals for the Eleventh Circuit affirmed the trial court decision and the validity of the learned intermediary defense.

CLIENTS: GSK and Purdue Pharma are King & Spalding’s primary clients in this practice area.

INDIVIDUALS: All of the recommended lawyers are based in the firm’s Atlanta head office.

Chilton Varner is widely acknowledged as ‘one of the best trial lawyers in the country’ and grateful clients relate how ‘she can try the toughest cases in the worst jurisdictions with success’. Chairman of the firm Robert Hays is similarly well regarded by clients, being an ‘outstanding trial lawyer and a go-to person in the toughest cases in the most difficult jurisdictions’. Andrew Bayman, Halli Cohn and Todd Davis are also recommended.

Nelson Mullins Riley
& Scarborough LLP

PRACTICE: Nelson Mullins Riley & Scarborough LLP presents clients with a ‘cost-effective’ product liability practice that is staffed by almost 60 partners who produce ‘excellent legal work’. Several of the partners are highly sought litigators.

With its offices in South Carolina and other southern states, the firm lacks a New York or New England base that might add to its visibility, but is able to keep its costs sensible and less expensive than competitors from many of those venues.

Nelson Mullins Riley & Scarborough LLP has been utilized extensively by Wyeth. The practice acted as regional counsel in the diet drug litigation, holds a national coordinating position for the settlement of phenylpropanolamine (PPA) litigation concerning cold remedies such as Dimetapp and serves as regional trial counsel in the Prempro hormone therapy cases.

CLIENTS: As mentioned above, Pfizer and Wyeth are notable representations, as is Hoffman-La Roche.

INDIVIDUALS: David Dukes in Columbia enjoys an international reputation. Michael Cole in Charleston has ‘a great personality’, according to clients, and is able to ‘think outside the box’ to develop creative solutions. Stephen Morrison in Columbia is an ‘incredible’ trial lawyer, whose clients include Hoffman-La Roche.

O’Melveny & Myers LLP

PRACTICE: O’Melveny & Myers LLP’s product liability practice contains 29 attorneys, mostly based in Los Angeles and Washington DC. The practice is able to provide support throughout the litigation process, but targets primarily important appellate cases and national counsel roles that can utilize its high-end capabilities and maximize value for its steep billing rates. Clients consider the leading partners to be ‘very thoughtful, logical and persuasive’ and to possess ‘depth of knowledge’ and ‘extraordinary writing abilities’, making ‘these lawyers are among the best lawyers in the United States’. However, the relatively small size of the group and its decision to act only on top-end cases and MDL - so it is less active in the space than most of the higher-rated practices - mean that it is not an appropriate choice for many life sciences product liability matters. As such, it cannot be considered the equal of more comprehensive practices that permanently feature a range of life sciences product liability work.

O’Melveny & Myers LLP lawyers have been an important part of Merck & Co’s national trial team during the Vioxx litigation. In November 2007, the practice argued successfully for the consolidation of lawsuits relating to GlaxoSmithKline’s diabetes treatment, Avandia, as an MDL in the US District Court for the Eastern District of Pennsylvania.

CLIENTS: Clients include Bausch & Lomb, GlaxoSmithKline and Merck & Co.

INDIVIDUALS: John Beisner in Washington DC is universally respected, described by clients as being an attorney who is ‘simply brilliant and extraordinary’. Also in Washington DC, both Brian Anderson and Jessica Davidson Miller are recommended, each being perceived as ‘a younger version of John Beisner’. Practice leader Richard Goetz in Los Angeles is also ‘excellent’.

Winston & Strawn LLP

PRACTICE: Variously described by clients as ‘one of the top product liability firms in the country’, ‘a big-ticket trial firm’ and ‘excellent in terms of legal skills and value of the work performed’, Winston & Strawn LLP is another firm that emphasizes its first-chair trial capabilities. Although the practice can provide the discovery and coordinating counsel necessary during the litigation process, it is by its strategic analysis, trial and appellate counsel that the firm is differentiated from the field. Overall, clients agree that ‘ Winston & Strawn LLP is absolutely superb at preparing and trying cases’.

20 attorneys - mostly based in Chicago and Washington DC - are members of the pharmaceutical and medical devices product liability practice, a moderate-sized group distinguished by quality rather than quantity and which clients are very happy with, saying it provides ‘highly technical expert development to trial to appellate advocacy’.

The practice does provide everything clients require and ‘the level of service is extremely high’, but the relatively small headcount in the practice means that it picks and chooses its cases and sometimes requires support from other law firms to handle the sheer scale of mass torts and MDL. It is also inconsistently active in the life sciences space - 2008 was a relatively quiet year on this front, for example - and so the firm cannot be considered a dedicated and full-time player in the area.

Product liability partners from Winston & Strawn LLP act as national trial counsel for Wyeth’s HRT litigation (in relation to Premarin and Prempro), which is now approaching settlement, and acted in a similar capacity for Pfizer on Celebrex/Bextra matters. All this said, 2008 has proved to be a quieter year in terms of life sciences product liability appearances, and the practice will need to pick up more work in the sector if it is to continue to be seen as a cutting-edge option.

CLIENTS: Representative clients include Abbott Laboratories, Barr Laboratories, Pfizer and Wyeth.

INDIVIDUALS: Chairman of the firm Dan Webb in Chicago is frequently praised by clients as ‘an extraordinary trial lawyer to go to with the most difficult, high-stakes cases’ or similar. He regularly participates in the firm’s big life sciences product liability cases. Similarly, clients say George Lombardi in Chicago and Thomas Quigley in New York are ‘extremely skilled trial lawyers’ who can be relied upon for the most important matters. Another ‘senior, experienced partner’, Thomas Frederick in Chicago is ‘an excellent litigator’, who is also thoroughly recommended by clients.

Arnold & Porter LLP

PRACTICE: No longer a principal player in pharmaceutical product liability, Arnold & Porter LLP remains national counsel to Wyeth for its drugs Pondimin and Redux in the long-running fen-phen diet drug litigation which ushered in an era of complex life sciences MDL. The product liability litigation practice fields more than 100 attorneys, but has lost talents such as Murray Garnick (who went in-house at Altria at the beginning of 2008). Meanwhile, fen-phen is no longer the big-ticket case that it once was and the practice’s book of work in the life sciences sector is not as extensive as competitor firms.

Nonetheless clients report being ‘pleased with’ the practice, which ‘does a very, very good job’, and is also described as ‘solid’, ‘excellent and dedicated’. Several related practices provide ancillary support, such as consumer product safety counseling and a European pharmaceutical and medical device practice for a truly international perspective, and these capabilities significantly enhance the overall offering. In summary, the practice remains a good option, but one that is no longer at the forefront of the sector.

As national counsel to Wyeth for Pondimin and Redux, Arnold & Porter LLP’s practice designed the global settlement program that began to be implemented in 2005 to deal with more than 65,000 claims. Through 2006 and 2007, the practice worked to end the litigation in regard to claims of heart valve damage through a combination of settlement and trial. The practice continues to represent the client in a smaller number of significant claims relating to allegations that the drugs caused primary pulmonary hypertension (PPH), and in October 2008 acted as co-lead counsel in obtaining a first-ever jury defense verdict in a PPH case in state court in Pennsylvania. Meanwhile, in California, the practice is representing six manufacturers and retailers in relation to failure-to-warn claims brought by the state attorney general over the presence of lead in the defendants’ multivitamin products.

Other clients include Scientific Protein Laboratories and Changzhuo SPL in relation to personal injury-related claims following the sale of contaminated heparin sodium, an anticoagulant. More than 80 lawsuits are pending, including an MDL consolidated in the US District Court for the Northern District of Ohio.

CLIENTS: Arnold & Porter LLP also acts for clients such as Boston Scientific and Sanofi-Aventis, and also advises the Pharmaceutical Research and Manufacturers of America (PhRMA).

INDIVIDUALS: Eric Rubel in Washington DC is a former general counsel to the federal Consumer Product Safety Commission (CSPC) and is well respected. Peter Zimroth in New York is ‘an excellent trial lawyer who has a very strategic mindset’, say clients. Ellen Reisman in Los Angeles also draws praise from clients, as do Steven Reade and senior counsel Peter Grossi in Washington DC.

Butler, Snow, O’Mara,
Stevens and Cannada, PLLC

PRACTICE: One of the smaller groups in this arena, the 28-attorney product liability practice at Butler, Snow, O’Mara, Stevens and Cannada, PLLC includes a dedicated drug and device team that is valued by clients for its ‘excellent litigation and trial experience’. The pharmaceutical, medical device and healthcare industry group provides an array of other services to supplement its product liability expertise. This, coupled with ‘cost-effective’ rates that are in part a product of the firm’s base in Jackson, Mississippi and neighboring states, make the practice a desirable addition to trial teams being put together in defense of MDL or coordinated actions. Clients explain that the attorneys ‘understand that litigation is a disruption to their client’s business and work well with in-house counsel to resolve litigation in the least disruptive, most cost-efficient manner’.

Traditionally regarded as a fine performer in the relatively limited role of local counsel, the practice has gained kudos and wider attention, particularly for the performances of its leading attorneys in several of the Vioxx trials. Clients now deem it to be capable of ‘handling sophisticated global mass torts’ or providing ‘litigation support at a local, regional or national level’.

In the Vioxx litigation, for example, Butler, Snow, O’Mara, Stevens and Cannada, PLLC attorneys helped win jury defense verdicts in three important cases in Alabama and New Jersey that helped set the markers to encourage plaintiffs into the settlement plan.

CLIENTS: Other clients include Baxter Healthcare, Johnson & Johnson (and its Janssen Pharmaceutica subsidiary) and Wyeth.

INDIVIDUALS: Routinely described by clients as ‘excellent’ or ‘outstanding’, Christy Jones in Jackson leads the pharmaceutical, medical device and healthcare industry practice group. She is ‘an A+ trial lawyer’ who clients view as ‘a very good person to have in the courtroom’ - not least because she is ‘very good with a jury’. Lee Davis Thames in Jackson is ‘a man of his word’, according to clients, a ‘seasoned trial lawyer’ and ‘excellent relationship partner’.

Hughes Hubbard & Reed LLP

PRACTICE: Hughes Hubbard & Reed LLP’s product liability & toxic tort practice is ‘excellent’, according to clients, providing an ‘excellent support network’. The group includes 35 ‘approachable’ attorneys, mostly based in New York, supplemented by colleagues from the pharmaceuticals & healthcare group, providing expertise across the spectrum of the life sciences industry. Ancillary services, such as IP, financial and regulatory support, mean that the firm is a fully rounded option for clients.

Clients deem the practice to be led by high-quality talents - ‘as good as you’ll get’ - with good support, but the depth of group is not comparable with the top-tier firms. Meanwhile, its involvement on leading engagements is not as broad as the leading practices in the area.

Nonetheless, Hughes Hubbard & Reed LLP’s role as one of two practices appointed national coordinating counsel in the Vioxx MDL demonstrates that the group has top-end capabilities. The practice has been instrumental in evolving the settlement plan that has helped save Merck & Co from company-threatening volumes of claims. In 2007, lawyers from the practice also won a significant victory in the hostile Madison County jurisdiction in tandem with Bryan Cave LLP. In the case, Schwaller v Merck & Co, the defense won a jury verdict that found Vioxx was not responsible for the death of a patient, and that the defendant had adequately warned physicians of potential side effects. With Vioxx winding down, the practice will be hopeful of picking up some significant new engagements in the life sciences sector - something it will need to do in order to maintain its emergent reputation.

Merck & Co is also a client for litigation relating to Fosamax osteoporosis treatment and for the New York Blood Center in relation to contaminated blood-products.

CLIENTS: As noted above, Merck & Co and the New York Blood Center are key clients.

INDIVIDUALS: New York-based Theodore Mayer and Robb Patryk share leadership of the practice, and are the attorneys most prized by clients. Mayer in particular is ‘an outstanding attorney’ and ‘very good, very strategic-minded’.

Pepper Hamilton LLP

PRACTICE: Pepper Hamilton LLP provides life sciences product liability services through its 29-partner health effects litigation practice, mostly based out of the Philadelphia head office. The practice added several partners in 2007 and 2008: Kenneth King and John Brenner joined from McCarter & English, LLP and Samuel Abate from Patterson, Belknap, Webb & Tyler.

The firm’s product liability capabilities are somewhat under-appreciated in the wider consciousness of the life sciences sector but its solid reputation and substantial engagements with existing clients demonstrate its capacity to operate on matters of national scope. Willing and able to go to trial, the practice has a good track record in favorable settlements.

For example, the practice represents Eli Lilly as national counsel for Zyprexa, the client’s atypical antipsychotic, in relation to product liability claims and a government investigation. 31,000 claims were settled before trial, while, in March 2008, the practice represented the client against a claim filed by the State of Alaska and reached a settlement after four weeks of jury trial. Many actions have been consolidated in an MDL in Texas, with state court actions ongoing in California, Indiana and New Jersey. The practice also serves on the national counsel panel to GlaxoSmithKline in relation to Avandia diabetes treatment, and is national counsel to CB Fleet for litigation concerning the client’s over-the-counter laxative Phospho-soda.

CLIENTS: In addition to the clients noted above, Pepper Hamilton LLP also represents American Red Cross and Medtronic.

INDIVIDUALS: Philadelphia-based Nina Gussack is the practice’s most prominent figure and serves as national trial counsel to Eli Lilly on Zyprexa.

Skadden, Arps, Slate,
Meagher & Flom LLP

PRACTICE: Skadden, Arps, Slate, Meagher & Flom LLP’s compact mass tort and insurance practice handles several matters for pharmaceutical and medical device clients. With a reputation for providing thoughtful national counsel advice and settlement plans, the practice has also had success in dismissing or defending matters in court. Notably, the group has had success in defending manufacturers against a series of claims involving allegations of improper marketing.

Recent successes include the dismissal of a putative nationwide class action brought against Pfizer in relation to consumer fraud-style allegations of deceptive marketing for Lipitor cholesterol-lowering drug. In December 2008, the practice obtained an important victory for Amgen in the District Court for the Central District of California by getting entirely dismissed the class action MDL claims against its Epogen and Aranesp treatments. Seven health insurers had sought financial redress based on allegations that Amgen had improperly promoted the drugs for off-label use. More traditional personal injury matters include representing Pfizer in relation to cases involving another cholesterol drug, Lopid, and Geodon atypical antipsychotic.

CLIENTS: In addition to Amgen and Pfizer, the practice also acts for Endo Pharma.

INDIVIDUALS: Edward Crane in Chicago is ‘a quick study’ admired by clients. Sheila Birnbaum in New York is the archetypal national counsel litigator, best known for her ability to settle huge cases favorably. Clients say she is ‘very smart’ and has ‘a great sense of legal issues and strategy’.

Tucker Ellis & West LLP

PRACTICE: Cleveland-based Tucker Ellis & West LLP recently opened its doors in Denver after absorbing litigation boutique Socha, Perczak, Setter and Anderson PC in January 2009. The acquisition substantially strengthens the depth of a talented but moderate-sized mass tort and product liability practice consistently described by clients as ‘excellent’ and ‘very creative in handling cases’.

With its Midwest pricing structure combining with a firm culture that understands the needs for alternative fee arrangements, clients report that ‘we are paying less and getting more’ because the practice offers ‘high quality, experienced attorneys at a very affordable rate’. Conflicts of interest permitting, the practice is prepared to represent both branded and generic manufacturers in the drug and medical device sectors and is adept in a national counsel role because of ‘an organizational ability that makes it formidable’.

Among its engagements in this practice area, Tucker Ellis & West LLP provides national counsel to Ortho-McNeil in the HRT MDL in Toledo, Ohio, and represents Ortho Diagnostics as national counsel in relation to autism allegations concerning thimerosal vaccine. The practice in 2008 was instructed by Actavis to represent it in relation to Digitek heart medication MDL proceedings consolidated for trial in West Virginia.

CLIENTS: The practice acts for several entities within the Johnson & Johnson group of companies, as well as Actavis.

INDIVIDUALS: Robert Tucker in Cleveland is ‘a very experienced lawyer who understands the trial and litigation process’. ‘Creative’ Curtiss Isler in Cleveland is recommended by clients because he is ‘out there thinking three steps ahead of everyone’. Additionally, recent arrivals Charles Socha and K Michele Anderson in Denver both have strong reputations in the life sciences litigation space, including work on the Celebrex/Bextra litigation for Pfizer.