Defiant DNA

In 2010, mass torts attorney Robert K. Jenner’s phone rang. It was close friend and fellow lawyer Ron Johnson.

“He says, ‘I think that these [Skechers Shape-ups] sneakers are causing horrific personal injuries,’” Jenner says.

Johnson explained how the shoes’ unstable rocker-bottom soles—marketed to tone muscles—changed the wearer’s gait, potentially leading to injury-causing falls, stress fractures or tendon injuries. Jenner agreed to help investigate, an action that grew into a multidistrict injury litigation case against Skechers, with Jenner and Johnson as co-lead counsel for hundreds of plaintiffs.

An attorney at Janet, Jenner & Suggs in Baltimore for the last 13 years, Jenner is no stranger to nationwide cases for injured consumers. As head of the firm’s mass torts division, he takes on pharmaceutical and medical device companies, including cases on the medical product GranuFlo, used in some dialysis treatments, and shoulder pain pumps. In 2012 he wrapped up litigation regarding the hormone replacement therapy Prempro.

“I think every once and a while, there is a company that feels as if the rules don’t apply to them,” he says. “Somebody needs to stand up against them and say, ‘We’re just not going to tolerate this.’ It fits my temperament to do that.”

Growing up with a scientist father and a mother who was actively involved in social and political causes, Jenner says, “I’d always been exposed to the combination of liberal causes and scientific integrity. … [It] was sort of ingrained in my DNA that you fight for the underdog.”

Eight months after graduating from Case Western Reserve University School of Law, he got the chance to represent the ultimate 1980s underdog.

His client, a 28-year-old mother of three, contracted HIV via a blood transfusion in 1983. At the time, there were only two lawyers—located in California—working on similar cases.

The virus was a source of stigma and fear. “They’re talking on the news about shipping these people off to islands,” Jenner says. “There was no sense of peers or camaraderie or alliances that these people could form.”

He learned what he could from the California attorneys, and then filed his first HIV lawsuit. “I had a big six months of legal experience under my belt, and nobody told me that I shouldn’t be suing the Red Cross and Baxter Pharmaceuticals by myself,” he says.

The blood bank and pharmaceutical company claimed that they weren’t liable if their products spread HIV because at the time, no one in the industry was screening for the virus. “You have to show that what the defendant did violated a standard of care,” Jenner says. “And if the standard is not to do certain testing or screening … it’s hard to say that you deviated from the standard of care.”

Parts of the case settled, parts of the case were lost in the appellate court, and his client died, but for his first 10 years of practice, he advocated almost exclusively for clients with HIV from blood transfusions and blood products, and for increased blood safety standards.

While the Skechers litigation might seem like a step away from his usual medical products work, Jenner often argues against manufacturers who overpromote medical devices beyond their intended use. “That’s exactly what they were doing here with Skechers. They had a sneaker and they were selling it to provide health benefits … but those claims were completely unfounded.”

After consulting with biomechanical engineers and gait specialists, it was clear to Jenner’s team that Shape-ups were more a public health hazard than a fitness miracle.

“Unbeknownst to us,” Jenner says, “the Consumer Product Safety Commission was doing a whole-scale investigation by itself and came out with one of the largest fines in U.S. history [$40 million] against this company for the illegal promotion of these shoes as providing health benefits.” Jenner and Johnson’s litigation against the company is ongoing.

The firm is also a leader in mass tort litigation in the wake of 2012’s widespread fungal meningitis outbreak linked to tainted steroid injections from the New England Compounding Center (NECC) in Framingham, Mass. Jenner argues that compounding pharmacies lack much-needed regulatory oversight.

“They can literally be making [compounds] in strip mall warehouses—which is what they were doing—without any federal oversight,” he says. “Next thing you know, they’re pumping out toxins in steroid solutions, and people are dying all over the country because the mold that’s growing from the vents of the compounding pharmacy is getting into the vials.”

As of September 2013, the CDC has reported 750 infections and 64 deaths from the outbreak. NECC shut down and filed for bankruptcy in December 2012. Jenner isn’t deterred.

“They don’t have a lot of money, but there’s a greater societal good here, and we’re going forward regardless of what the recovery is for us because we need to effectuate a change. We need to make sure that consumers are not victimized by these companies,” he says. “We’re not the type of law firm that just sits back and lets that happen.”

He also hopes for more internal oversight from pharmaceutical and medical device companies.

“There is tremendous pressure on these manufacturers to enhance the bottom line,” he says. “We’re all for letting businesses thrive. We believe in that. But it can’t come at the expense of human suffering.”