Still Slaying Goliaths

Twenty years later, Alan Milstein is just as passionate about advocating for ethical conduct in clinical trials—and other issues—as he was in 2005 when he graced the cover of the debut issue of New Jersey Super Lawyers.

“But the funny thing is,” he says, “the biggest case of my career, which happened since the cover, was a venture company commercial case, fairly routine as far as the issue is concerned, but ended up with an equivalent [value] of about $100 million.”

His client distributed medical devices made by another company. “It became a very profitable business for this client of mine—so profitable that the manufacturer was trying to squeeze them out and essentially stopped giving them product, which they were obligated to do,” he says. After a weeklong trial, Milstein’s client ended up with a substantial amount from the manufacturer, including the company itself, which it later sold.

Milstein wound up on the cover, in part, because of his representation of subjects injured in clinical trials, and also for repping Ohio State football player Maurice Clarett against the NFL, which refused to let him turn pro earlier than its minimum age.

The headline was simple: “The Goliath Slayer.” He got some nice feedback. “There’s no one better for a Jewish boy to be compared to than David,” he quips.

He still practices sports law, repping athletes in civil litigation, as plaintiffs or defendants. He’s also still taking on insurance companies that deny claims. But bioethics holds a special place in Milstein’s heart. He teaches the subject at Temple University’s Beasley School of Law, and lectures on it at hospitals and universities around the country.

His first clinical trial case, Gelsinger, came to him in 1999. At age 18, Jesse Gelsinger took part in an experimental gene-therapy program at the University of Pennsylvania designed to help infants born with a fatal form of a rare liver disorder. Jesse had his own disease under control, Milsten says, but wanted to help others. However, after being injected with a genetically engineered virus, he slipped into a coma and, four days later, was pronounced dead.

Milstein won a confidential settlement for Jesse’s parents, arguing the young man had not been told, among other things, about laboratory primate deaths.

“Most of these trials are conducted ethically, but occasionally there’s a disconnect between the principal investigators and the sponsors and the subjects,” says Milstein. “I’ve talked to all the major institutions—Hopkins, Mayo, Harvard Medical School—about the kinds of ethical issues that exist in these trials and the difficulty that these investigators have in making sure that the subjects are informed properly.

“Sometimes I get accused of trying to interfere with the advance of medicine, which is not the case,” he says. “It’s just a matter of trying to make sure that the clinical trials that are conducted are conducted ethically.”

At age 70, Milstein has certainly seen changes in the legal industry since he started out in 1983. Many, he thinks, are largely for the better.

Take the shift toward mediation and arbitration.

“I think that’s a big advantage today,” Milstein says, noting that he had “three absolute dynamite arbitrators” on one of his landmark cases: a former state supreme court justice, a former chief federal judge, and a former appellate judge.

That said, being a trial lawyer is an art, he adds, and he worries that younger attorneys are missing out on opportunities to help them master it.

“I don’t think that law firms send their lawyers out to watch good lawyers try cases anymore, which is what, fortunately, I was able to do,” he says.

While technology has turned lawyering into a 24/7 career, Milstein feels it’s also simplified matters, especially with the changes that came along during the pandemic.

“I used to travel everywhere for depositions and court hearings,” he says. “Now I do them mostly by Zoom, and the change is much appreciated. I once traveled 24 hours for a two-hour hearing on Guam, and would frequently fly to Los Angeles for short depositions. Zoom is God’s gift to a weary traveler.”
Also to the weary commuter. “The biggest change in my life is I now go into the office once a week,” he says. “The rest of the week, I work from my home office overlooking my garden.”

Bottom line, though? “I still think a good cross-examination and a good direct examination—the art of both of those techniques—is more important than
any technology.”