The following is an excerpt from Practice Perspectives: Vault's Guide to Legal Practice Areas.
Hayden Coleman, Partner, and Caroline Power, Associate—Litigation, Product Liability and Mass Torts Group
Hayden Coleman is a partner in Dechert’s nationally recognized Product Liability and Mass Torts group. He represents pharmaceutical, consumer goods, and insurance companies facing all forms of aggregate litigation, including multi-district litigation, class actions, mass tort actions, RICO, qui tam, and governmental lawsuits. Hayden has over 25 years of experience working with clients at the trial and appellate levels, managing some of the largest and most complex product liability cases the courts have seen in recent years. Hayden excels at finding innovative defenses to novel theories of liability and finding creative resolutions to protect his clients’ interests.
Caroline Power is a senior associate in Dechert’s Product Liability and Mass Torts group. She represents manufacturers and producers of pharmaceuticals, medical devices, automotive parts, and household goods in actions alleging personal injuries, deceptive marketing, public nuisance, RICO and False Claims Act liability. Caroline’s practice focuses on developing scientific evidence, working closely with experts and company witnesses, and preparing cases for trial. She has experience in the day-to-day management of federal multi-district litigations and parallel state court actions encompassing thousands of related cases. Caroline’s pro bono practice is focused on civil rights and the protection of public parks.
Describe your practice area and what it entails.
Product liability is litigation involving the central question of whether a product caused an injury. In its most basic form, product liability cases are personal injury cases alleging harm caused by a defect in the product or how the product was marketed. Oftentimes, many plaintiffs file claims across the country regarding the same product. In order to manage the volume of cases, we sometimes consolidate proceedings in federal multi-district litigations (MDLs) and coordinated state actions. Not all cases are included in the consolidated actions, so we are often litigating on multiple fronts in multiple jurisdictions. In addition to traditional personal injury cases, the practice area encompasses other theories of liability tied to products, including claims of harmful environmental exposure to chemicals, class action claims based on marketing practices, and claims by government entities that a product or marketing practice caused a public nuisance.
In each of these types of cases, there is an important interplay between high-level issues and case-specific issues. High-
level issues—such as scientific questions and major legal theories—are often common across cases, so they have a direct impact on all or most cases. However, because some individual cases proceed faster than others, case-specific issues—such as a plaintiff’s unique medical history and personal use of the product—can affect the larger litigation landscape. Strategically managing how cases are coordinated, how the different cases proceed, and how the high-level and case-specific issues interact is an interesting and engaging exercise that is fairly unique to product liability and mass torts.
What types of clients do you represent?
Hayden: I often represent pharmaceutical and medical device manufacturers, including Purdue Pharma, Pfizer, and Wyeth. I have also represented companies in other major industries, including the automotive industry, major league sports, alcoholic beverages, and computer manufacturing. Our group’s broad practice also includes clients in the cosmetic industry, chemical manufacturing, and the smokeless tobacco industry.
Caroline: I represent name brand pharmaceutical companies and medical device manufacturers in federal MDLs and parallel state court actions. I have defended products in various therapeutic fields, including endocrinology, neurology, maternal fetal medicine, gastroenterology, general surgery, and pain management.
What types of cases/deals do you work on?
Much of our work is on large mass torts in which many plaintiffs allege similar injuries caused by a product or marketing practice. Our cases often involve a large consolidated action, such as an MDL, state coordinated proceeding, or class action, along with any number of stand-alone cases that cannot be consolidated. As such, active management and coordination among proceedings is a major feature of our cases. Substantively, personal injury product liability cases often turn on scientific and medical theories of causation, i.e., whether the product can cause the alleged harm and whether the product did cause it in a particular plaintiff. Where municipal and state governments allege nuisance, the cases may focus on legal theories of standing and proximate cause. Though our work encompasses a variety of cases, the common thread is that they generally call for nationwide coordination, scientific expertise, and legal innovation.
How did you choose this practice area?
Hayden: I always loved Torts in law school. That propelled me to take a product liability class that was taught by a very well-regarded practitioner in the field who was also an adjunct professor at my law school. I loved the class, and a few years later, I had the opportunity to interview for a product liability position at the firm where she worked. I met with Sheila Birnbaum—who was the head of that group and already a legend in the field—on a torrentially rainy day. We were both absolutely soaked, but we hit it off. I got the job, and we’ve worked together ever since.
Caroline: The first time I worked on a product liability case as a junior associate, I just felt like a fish in water. I don’t have any formal scientific or medical training, but I find the science fascinating, and I really enjoy working with and learning from top experts in a given field. In addition to the science, I’m drawn to the complexity of working in mass torts because it provides daily opportunities for creativity and strategic thinking.
What is a typical day like and/or what are some common tasks you perform?
Hayden: There are certain constants in my days, like meetings and phone calls with clients and colleagues about ongoing events in our cases. But my days vary significantly based on the phase of the case that I’m working on. For new cases, I spend a lot of time researching the governing law and underlying facts in order to develop a strategy for how best to defend the case. Later in the case, I generally work with my discovery and expert teams, often in preparation for summary judgment and Daubert motions. This generally involves a lot of travel to take and defend depositions and meet with experts. Once summary judgment motions are written and filed, my focus shifts to argument preparation. If we are successful, the case is dismissed, and there generally will be an appeal. Otherwise, my focus shifts to potential settlement discussions and/or trial preparation.
Caroline: One thing I love about my job is that no day is typical. We handle cases at every stage of litigation, so my day could involve working closely with the client to learn more about a product, drafting briefs, conferring with opposing counsel about discovery disputes, collaborating with expert witnesses, conducting depositions, or preparing exhibits and exams for trial. I also take time to shadow and learn from more-senior lawyers and to mentor younger associates.
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
Hayden: As a starting point, I recommend taking a product liability class. I would also recommend building a strong foundation in complex civil procedure and federal courts. An understanding of class actions and multi-district litigations is particularly important.
Caroline: While scientific training is not necessary, a basic understanding of anatomy, chemistry, and statistics will help you quickly learn the science in a given case. I would also suggest an e-discovery course and as much public speaking practice as you can get.
What is the most challenging aspect of practicing in this area?
Because our group handles parallel litigations in multiple courts at the same time, there is always the possibility that multiple cases will get very busy all at once. Our attorneys often become subject area specialists within a case, so it is challenging to share the load when things get active on multiple fronts. Of course, workload fluctuation is common across many areas of litigation, and our team is full of incredibly supportive and kind attorneys. When cases get rough, we are in it together.
What do you like best about your practice area?
Attorneys in our practice group get the opportunity to work with the foremost experts in a variety of technical fields. We get to learn from the biologists, engineers, and chemists who develop products for our clients. We get to learn about particular medical conditions from the leading physicians, epidemiologists, and researchers in the field. We also interact with and learn from doctors and professionals who prescribe our clients’ products in the real world. Working with such impressive figures outside the bubble of the law is refreshing and fuels a sense of intellectual curiosity.
In what ways has the coronavirus pandemic affected your practice? How have you adjusted to lawyering in the wake of COVID-19?
COVID-19 has been a challenge on multiple levels. Our first order of business was to make sure that we were all safe and that our clients knew we were there for them to handle whatever might come up during these difficult times. Because our clients are in the health care and insurance industries, there were many pressing issues that had to be addressed right away.
Our group has also done fairly well in the adjustment to working from home. Long before COVID-19, the group included lawyers spread across the country. Our teams usually include members from different offices, so conference calls and video conferences were already built in to how we worked before the lockdowns began. Dechert had an excellent IT infrastructure in place before the lockdown and it has only grown stronger in recent months. While many of us did supplement our home offices with an extra screen and perhaps an ergonomic chair, the firm has provided everything we need to function effectively from home. We are a tight-knit team and missing out on the social aspect of the office has certainly been difficult. To stay in touch, we convene weekly practice group Zoom meetings that involve a mix of business and fun, with games like “Stranded!” and virtual bar trivia.
How useful is technical and scientific knowledge for your everyday practice?
A foundation of knowledge about how science works and a willingness to learn are more important than training in a particular scientific or technical field. While some members of our team do have specialized training and undoubtedly put it to good use, most attorneys in our group develop their expertise through “on-the-job” learning. That being said, there are tools that can help you learn the science of a case more quickly. Perhaps most important is an ability to read scientific and medical literature, which involves an understanding of basic statistics and study design. Other useful areas of knowledge include biology, epidemiology, and chemistry.