Whether it's a dispute over defective breast implants, asbestos contamination or hormone replacement therapy, the "Queen of Toxic Torts," Sheila Birnbaum, reigns supreme in product liability defense.
Over the course of a half-century career in which she built the mass torts practice at Skadden, Arps, Slate Meagher & Flom into an international powerhouse, Birnbaum has garnered a reputation with her colleagues, clients and adversaries as a one-of-a-kind talent with uncanny ability, agility, acumen and integrity.
She left Skadden a few months ago to cochair the product liability and mass torts practice at Quinn Emanuel Urquhart & Sullivan.
"Sheila is probably the most genuine person I know, certainly in the defense bar," said plaintiffs' attorney Bryan Aylstock of Aylstock, Witkin, Kreis, & Overholtz in Pensacola, Fla. "When she says something, she believes it. It is refreshing because there is not all of this posturing and blustering. It is what it is with her."
Aylstock went up against Birnbaum several years ago when he was representing plaintiffs in a major hormone replacement action and she was defending Pfizer.
"In the hormone replacement litigation, she had the ability to cut through years of animosity and downright bad feelings between both sides and get to the real issues that were keeping sides from a resolution," Aylstock said. "She is able to put her finger on exactly what is keeping the parties apart."
Over the decades, the five-foot-two litigator has represented such corporate giants as Pfizer, Dow Corning, State Farm Insurance, Aventis Crop Science, Thompson-Delaco, Anheuser-Busch and Chrysler Corp. She has won two landmark cases before the U.S. Supreme Court—Buckley v. Metro North, 521 U.S. 424 (1997), which involved medical monitoring, and State Farm v. Campbell, 538 U.S. 408 (2003 ), which reversed a $145 million punitive damage award.
Between 2006 and 2009, Birnbaum mediated more than 90 compensation claims filed by victims and survivors of the Sept. 11, 2011 terror attacks on the World Trade Center, a job she was appointed to by Southern District Judge Alvin Hellerstein. In 2011, Birnbaum, now 73, was chosen by U.S. Attorney General Eric Holder to serve as special master of the reactivated Sept. 11 Victims Compensation Fund program. She agreed to serve pro bono.
A native of the southeast Bronx and daughter of a Russian immigrant who ran a grocery in Harlem, Birnbaum majored in history and minored in political science at Hunter College. She taught fourth grade at P.S. 62 in the Bronx before enrolling in New York University School of Law. Birnbaum discovered her calling at NYU when, by chance, she was assigned a moot court project on product liability. She graduated in 1965, one of about 13 women in a class of 360, and landed a job litigating product liability cases with Berman & Frost.
After seven years, Birnbaum returned to academia, teaching at both Fordham University School of Law and her alma mater, where she became associate dean. Birnbaum was still at NYU when she took a part-time position with Skadden, joining full time in 1985 and eventually becoming its prime rainmaker in products liability and mass torts.
In a December 2012 Law Journal article, Birnbaum described products liability as an opportunity to "mix science, medicine, procedure [and] evidence." Birnbaum said she never had a dull day.
Malini Moorthy, in-house counsel at Pfizer, said Birnbaum has the ability to "think five steps ahead," while keeping one eye on the ball and the other on the final scoreboard.
"Sheila is one of those rare lawyers who is not only a pure strategist, but one who can think about the ground game: discovery issues, the workup, the appellate issues," Moorthy said. She also thinks about "whether the end game is a fight to the finish or a global resolution of the litigation," she said.
In product liability negotiations and litigation, credibility is key, Moorthy said. "When Sheila speaks, people listen."
"She tells me things I don't want to hear and I am sure she tells her clients things they don't want to hear," Aylstock said. "The weaknesses in the case are pointed out to us and that helps us cut through some of the animosity."
Birnbaum's former partner at Skadden, Barbara Wrubel, said her mentor "sees the big picture and sees it quickly."
"She will take the case to trial, no question," said Wrubel, who is now retired. "But she also knows where is that place where the parties can meet, the common ground. It is always the perfect settlement—where the defendant walks away thinking 'I paid too much' and the plaintiff says, 'I took too little.'"