The Pioneer

Sheila Birnbaum was often the first woman in the room, but it’s in products liability that she blazed a trail

Published in 2009 New York Metro Super Lawyers — September 2009

Every year since 2005, the International Who’s Who of Product Liability Defense Lawyers has named Sheila L. Birnbaum—co-head of the complex mass tort and insurance group at Skadden, Arps, Slate, Meagher & Flom, and a former associate dean and professor at New York University Law School—the leading products liability attorney in the world. That’s right: the world. Upon meeting her it’s easy to understand why.

A diminutive woman with sparkling eyes and a thatch of brownish hair, Birnbaum is a good listener, someone who puts people at ease. She has a plain-spoken eloquence that has served her well as lead counsel in hundreds of liability cases and class action settlements. She’s also a formidable advocate, with a mind for complex litigation and the ability to handle sensitive cases involving injury and loss. All of these traits, in fact, were recently put to use when she became a court-appointed mediator in the resolution of personal injury cases brought by the families of 9/11 victims. “[She] was the unanimous first choice of the lawyers to mediate those cases that could not be settled by counsel,” says Desmond T. Barry Jr. of Condon & Forsyth, one of the attorneys representing American Airlines in the hearing.

Birnbaum grew up in the Bronx, attended New York City public schools and went on to Hunter College. She was the first person in her family to go to college. After graduating she took a job teaching fourth grade, but soon decided to pursue a long-held dream of becoming a lawyer.

“My parents thought being a grade-school teacher was a perfectly acceptable profession for a woman, and were a bit flabbergasted at my announcement,” she remembers. “To be honest, I’m not really certain where the ambition came from. What was odd was that my mother kept an autograph book I had filled out in the sixth grade and on the line where it asked for the child’s future profession I had written ‘lawyer.’ It’s a bit of a mystery because when I was growing up we didn’t know any lawyers, and certainly no women who were lawyers.”

Even by the time Birnbaum graduated from NYU Law School in 1965, female attorneys were rare. She was, for example, the first hired at Berman & Frost. “As you can imagine I was something of an oddity. But because the other attorneys had no experience working with women, I had the advantage of almost always being able to defy their expectations. They seemed pleased and surprised each time I managed to put a sentence together.”

Birnbaum, though, became a pioneer in another sense. In 1963, the seminal case of Greenman v. Yuba Power Products was ruled upon in California, establishing the doctrine of strict liability—the idea that companies have a legal responsibility to compensate people injured by their products, regardless of evident negligence. Prior to the 1960s, Birnbaum recalls, “product liability was a gray area of the law. It was unclear in cases of injury who a plaintiff might sue—a manufacturer or distributor—as there was no contract per se between a consumer and the manufacturer, and mass torts were as yet unknown.”

Birnbaum, while still a law student, immersed herself in the subject of strict liability, and at Berman & Frost assisted the firm’s partners as counsel for the Chrysler Motors Corp. in Codling v. Paglia in 1967. The case involved a head-on collision caused by a defective steering mechanism on a new Chrysler car, and, as a result of the ruling by the state court of appeals, New York joined California, New Jersey, Arizona, Florida, Michigan and other states in adopting the strict liability concept—which today is in use nationwide.

The co-author of The Practitioner’s Guide to Litigating Insurance Coverage Actions, and a regular contributor on products liability for The National Law Journal, Birnbaum considers herself, she says, “very lucky in that I was able to get in on an opening field of law, one that has during my career been dynamic and constantly changing.”

 

Over the years she has specialized in class action lawsuits and settlements involving a host of large-scale industrial hazards, such as contaminated milk and water, DDT and asbestos. She currently advises several major corporations on issues involving cordless phones, chemicals, medical devices, drugs and heavy machinery.

In one of her largest cases, she represented Dow Corning in litigation that alleged that the company’s silicone breast implants caused autoimmune diseases including lupus. Lawsuits against Dow began in 1984 and led, in 1998, to a multibillion-dollar settlement that put Dow in bankruptcy protection until 2004. That case, she says, “was one of the first indications that the market would react favorably to mass settlements.”

The Dow case underscored to Birnbaum the need to balance the public’s right to compensation in cases of injury with the economic ramification of corporations being driven to bankruptcy by the threat of punitive damage awards.

“The overkill in punitive damages in the United States,” Birnbaum explains, “arises partly because, here, product liability cases are tried before a jury. In other countries they are heard by a judge. I certainly don’t disavow the jury system, and jury members are justified in responding on an emotional basis to the painful facts of such cases, but their tendency to then impose outrageous punitive awards is often not sustained by the sitting judge, which is why you’ll often see huge damages of this sort reduced.”

Birnbaum had a chance to address that issue in an important 2003 case before the U.S. Supreme Court, State Farm Mutual Automobile Insurance Co. v. Campbell et al. As lead counsel for State Farm, she argued that a $145 million punitive award was so excessive in relation to the compensatory damages that it violated the due process clause of the 14th Amendment. “There had long been concern about the overkill factor in assigning punitive damages,” she recalls. “Where we broke through was in getting the justices to look at the issue of punishment in these cases through the prism of due process.” The imposition of grossly excessive or arbitrary punishments was unjust, she told the court, because civil defendants are not accorded the same rights as criminal defendants.

A majority of the justices agreed, and in their written opinion instructed lower courts to weigh punitive damages using a precise set of criteria meant to introduce reasonableness into the process.

The Washington Post labeled the ruling “a big win for corporate America.” Birnbaum believes the High Court may further refine the judicial methods by which punitive damages are arrived, but for now is taking a wait-and-see attitude to observe how lower courts respond to the guidelines set forth in State Farm.

Because liability cases often turn on highly specialized information, Birnbaum strives to translate complex technical information for the layperson on the jury. She recalls one case, she says, “where we were going to examine an expert defendant in court, and we couldn’t get him to explain the information in a way an ordinary person could understand. So we on the defense team went out and obtained a high school science textbook and studied it until we nonscientists could understand the scientific principles at work. Then we asked the expert to explain it along similar lines.

“This is a serious issue in product liability cases. If you bring experts in who are going to speak over the jury’s heads, the jury will glaze over and will perhaps favor the testifying expert whose voice and appearance they found most pleasing. That obviously harms a case and inhibits the likelihood of a just verdict.”

Her own lack of scientific training, she says, is an asset. “I have a great capacity for not understanding science, and that has kept me in good stead. Because if I can get to a point where I grasp something technical, then a jury is likely to understand it.”

Perry Weitz of New York’s Weitz & Luxemburg, who has “sat across the aisle from Sheila many times,” says that even opponents have learned to trust what she says. “I’ve known her for 25 years,” Weitz says. “She is a class act and a person with tremendous integrity.”

Birnbaum understands that advocating for corporate clients can be controversial. “If there is a question as to the causation of the alleged harm, then of course you have to fight,” she comments, “but if the company’s conduct has been less than sterling, you have to resolve it as best you can. Remember that in these cases it’s not a matter of criminal conduct—that is for another court to decide—but rather compensating those who have been injured, or their survivors, in a way that is fair and humane.”

She cites as an example a 1984 case she handled involving the Great Adventure amusement park in New Jersey, in which a flash fire in the Haunted Castle ride took the lives of eight teenagers. A criminal case against the park’s management ended in a verdict of not guilty, and there was substantial evidence the cause of the fire was reckless arson on the part of a juvenile, but, in the liability case, Great Adventure chose to settle.

“Now, one could have conceivably argued that in some way Great Adventure was not technically responsible for this fire,” Birnbaum recounts. “However, the point was that eight young lives had been lost inside the Haunted Castle. It would have been difficult to convince a jury in such emotional circumstances that the company bore no responsibility. There was no option but to settle the case and I believe that was the right thing to do.”

 

Of course, there are other haunted places.

On the morning of Sept. 11, 2001, Birnbaum was walking across Midtown Manhattan toward her office when news of the collapse of the World Trade towers began to spread. “It was chaos on the streets and sidewalks,” she remembers. “No one was quite sure at first what was happening. All transportation had stopped. What was heartwarming to see, as the extent of the disaster sunk in, was how people on the street reacted—trying to help and direct one another, store owners handing out water because it was a warm day and everyone was walking. That night my home, which is on the East Side near 57th Street, became a kind of gathering place for relatives and friends who’d been stranded and couldn’t get to their own homes in Westchester or wherever.”

She found another chance to contribute as a court-appointed mediator in 9/11 cases involving survivors of victims who had opted out of the government-sponsored settlement. She enjoyed the opportunity to act, not as an advocate, but as a neutral party, while mediating between the 95 plaintiffs and the defendants: American Airlines, United Airlines and security companies responsible for airport screening. The task was made even more difficult by the different laws in the various states in which the victims lived. “All such cases involving tragic death are hard,” she says, “but working with the 9/11 families was especially emotional because of the high profile of the tragedy—the fact that it was a national and really global catastrophe, one in which all of us have shared.” She adds, “It’s particularly hard on the impacted families, who because of the public nature of the event must live and relive the death of their loved one.”

She explains that many of the families that refused the initial settlement were those for whom the deceased was a particularly high wage earner, or whose income and/or presence supported the special needs of another family member.

“Of course,” she adds, “what’s extremely difficult—always in these cases—is the impossibility of placing a monetary value on a loved one. We [the mediators] explained that while the focus on a dollar amount may seem crass, it is ultimately what a court does in this context. Indeed it is all a court can do.”

Although Birnbaum refuses to generalize about what kinds of awards were agreed to because they were judged individually and varied widely, the approximately $500 million allotted in the settlement spread over the 92 recipients suggests that it was worthwhile for these families to have held out. Three of the families, however, were unable to come to a settlement through mediation; at least one hopes to use a trial to get defendants to reveal more information about what occurred on 9/11. Birnbaum questions the efficacy of that tactic, since the details of mistakes made on 9/11 in airport screening and cockpit security have already been publicly identified, and reforms have been affected to address them.

“Sheila was the consummate professional,” recalls American Airlines attorney Desmond Barry, “explaining the complex legal issues involved to the family members in terms they could understand while always being cognizant of their personal loss.”

 

Having been involved in the “birth” of modern products liability law, and having nurtured many of its changes and reforms, Birnbaum is in a unique position to speak of the field to young lawyers entering the profession. “I tell them that product liability law will continue to expand into new areas such as biotech, human genetics and environmental law,” she says, “and the scope of the cases is getting more global all the time as issues become internationalized.

“There’s no end to the number of crises that companies—not only U.S. corporations—are going to face in the next decade or so,” she adds, “whether it’s white-collar crime, products liability or securities regulations. What we often see happen is that many corporations—even the higher echelons of corporations—don’t know a [legal] crisis is brewing. They try to manage an issue so it doesn’t escalate, but they don’t fully appreciate the dimensions.”

And that’s where Sheila Birnbaum steps in.

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