Where There's Smoke, There's Sheller and Heim

 

Heim: “I’ve never paid you a dime.”

 

Sheller: “Have you seen the checks recently?”

 

Sheller: “I really think he knows I’m right.”

 

Heim: “I’ve never thought his arguments were right … but he makes them very well.”

 

Heim: “I’d like to win all these cases and then buy Steve a drink and tell him, ‘You did a great job, but that’s the way it goes.’”

 

Sheller: “In due time, he’ll make me a very wealthy philanthropist.”

 

Cue the rimshots and the pair could play the Catskills. Or at least present a CLE workshop on mass-tort litigation to the Philadelphia Bar Association, something they did last year (minus the drum and cymbal). But beneath the good-natured shtick lies mutual respect and an improbable friendship, forged despite — or perhaps because of — the intensity of their traveling tobacco duel.

 

“I hate to have Bob as an adversary,” Sheller says, “but I’d hate to lose Bob as an adversary. He makes the practice of law enjoyable.”

 

Lest anyone think they’re too chummy, however, Heim admits to a deep desire to wax his longtime foe in court. “I like Steve,” he says, laughing, “but I don’t like him so much that I wish him success in any of these cases he has against me.”

 

Most of those cases, ongoing in New Jersey, Massachusetts and a half-dozen other states, involve class action claims in the billions of dollars over what’s known as the light-cigarette theory, which Sheller pioneered in the late 1990s. The theory, now wielded by plaintiffs’ attorneys worldwide against Big Tobacco, asserts that so-called “light” cigarettes contain as much nicotine and tar, and hence pose the same health risks, as full-tar cigarettes.

 

Heim and Sheller generally clash during the class certification stage of a case, yet they rarely slug it out oxford-to-oxford. That’s because, while Heim frequently argues Philip Morris’ position in court, Sheller tends to serve as an über-strategist to lawyers in other states, providing direction but leaving the verbal jujitsu to them. In that role, he has observed the unassuming Heim, whom he considers “one of the best lawyers in the country,” control the courtroom with a kind of potent sangfroid.

 

“Bob’s a straight shooter,” Sheller says. “He adds common sense, honesty and decency to the process, a result of which is judges are more willing to hear him out.” Two years ago, Sheller won a $10.1 billion verdict against Philip Morris in Illinois, a victory that, he suggests, was made easier by Heim’s absence. “It probably helped not having Bob on the other side in that one. He’s too damn effective.” (The case remains on appeal.) 

 

Tobacco executives could be excused if they dream of stubbing out cigarettes on Sheller’s forehead, given his ubiquity in class action suits against the industry. In contrast, Heim regards Sheller’s persistence as evidence of his integrity. “Steve shows an interest beyond ‘Can I make some money on these cases?’ You might not agree with his take in a matter — and I don’t on these cases — but this is a guy who has real convictions,” Heim says. “If he has a setback in one place, it doesn’t deter him. That brings a level of credibility to what he does.”

 

Yet even without their professional rivalry, Heim and Sheller would seem no likelier to become friends than Dick Cheney and Eminem.

 

Heim grew up in Philadelphia, served on a Navy destroyer during Vietnam and has spent his entire 33-year legal career with Dechert. Sheller is a Long Island native, represented the Black Panthers in the early ’70s and, restless to “do his own thing,” founded Sheller Ludwig & Badey in 1977. Heim counts Philly’s two daily newspapers, Adelphia, a number of major airlines and the city of Philadelphia among his clients. Sheller has won multimillion-dollar verdicts and settlements for victims of fen-phen, faulty breast implants and flawed vaccines. Heim likes to vacation on the Maine coast; Sheller favors New Jersey’s Cape May.

 

Nonetheless, the two men share an implicit trust. In the early ’90s, a bar association event was held to honor the bar’s past chancellors, including Heim. One problem: He needed to leave early to attend another engagement.

 

Learning of the dilemma, Sheller told his friend that he would take care of it. Heim thanked him and left. Unfortunately for Heim, Sheller’s way of taking care of it was to walk up front to take Heim’s vacant seat. When Heim’s name was announced during the roll call of chancellors Sheller smiled, stood up and waved, confusing many in the audience. In reference to his turn as Heim’s mismatched body double, he quips, “People were asking, ‘Who was that good-looking guy?’”

 

Stakes ran higher when they encountered each other again a couple of years later in federal court, first in Louisiana and then in Philadelphia. In the latter case, Sheller and a phalanx of lawyers sued tobacco companies on behalf of more than 2 million Pennsylvania smokers who wanted the industry to cough up funding for health monitoring. A judge certified the class action suit in August 1997, only to reverse his decision two months later, a couple of weeks before trial. Just as quickly, Heim and Sheller swapped roles of winner and loser.

 

Such abrupt changes of fortune help explain why neither attorney dances a Phillie Phanatic-style victory jig when he wins—a rematch always looms, and with appeals forever pending, court rulings may as well be written in pencil. Both also plead ignorance and indifference on the question of who’s ahead in their personal war-within-the-war. Instead, they muse about the broader fallout of tobacco litigation on cigarette companies and smokers alike. As Sheller says, “I don’t know what round we’re in. But at some point, we have to achieve a result that succeeds for the country.”

 

Apart from hashing out differences in their own cases, they’ll also consult with one another in an attempt to loosen procedural gridlock in other light-cigarette suits that involve Philip Morris. Heim credits Sheller with possessing “a flair for being practical” that cultivates cooperation.

 

“When I have an agreement with Steve, I’ve never doubted for a minute that the agreement would hold. I trust him. That’s so important in this business, and that’s what makes him a friend.”

 

In fact, Heim and Sheller remember only one incident in which their amity gave way to enmity. It occurred a few years ago when Heim and other defense attorneys filed a fraudulent joinder claim that accused Sheller of suing a party solely for jurisdictional purposes. Sheller complained to Heim at a decibel level loud enough to trigger car alarms. “He was in a rage, yelling at me, saying he’s going to sue me personally,” Heim says.

 

Adds a sheepish Sheller: “I might have even cursed.”

 

Sheller continued to rant until Heim snapped, “Steve, you need to look up fraudulent joinder and what it means. And when you calm down, if you still want to sue me, then go ahead.”

 

Though the friction later subsided — the fraudulent joinder claim went away, Sheller didn’t sue — the episode reveals how much each man believes in his cause. “Steve’s a friend, but I never forget he’s an adversary,” Heim says. “He won’t get an inch from me, and I don’t expect to get an inch from him.”

 

Considering the undertow of tension, it’s perhaps no surprise that they seldom hang out together, save for the occasional hoagie lunch to discuss a case. Despite that formality, a genuine bonhomie does prevail. Heim has donated money to Drexel University, where Sheller sits on the board of trustees. When Heim won a case two years ago that enabled the city of Philadelphia to retain control of the Convention Center, Sheller was the first to call to congratulate him. And while Sheller tosses out phrases like “evil incarnate” to describe tobacco companies, he disavows the view of his friend as the Grim Reaper’s hand puppet, as a cartoonist once portrayed Heim.

 

“We both know where we come from,” Sheller says. “When it comes to true beliefs, we come from the vantage point of what’s right for the justice system, for the country.”

 

Then again, Sheller minces no words in contending that he represents the forces of virtue — a sentiment that causes Heim to sigh before slinging a retort. “Steve, you’ve got your values upside down. When you bring huge cases and they inflict great economic harm, I don’t know how you can think you’re the good guy.”

 

“He knows I’m right,” Sheller says.

 

“Steve, you’ve never been right about anything.”