MassDevice Q&A: Greenberg Traurig’s Lori Cohen on defending product liability lawsuits

When it comes to defending product liability lawsuits, it’s tough to top Greenberg Traurig’s Lori Cohen and her 98.2% winning percentage – she’s 56-for-57 lifetime in the courtroom.

Cohen, a shareholder at the law firm, is chairwoman of GT’s pharmaceutical, medical device & healthcare litigation practice and its trial practice group. Based in Atlanta, she’s saved her medical device and pharmaceutical clients at least $174 million in potential damages over the years.

We asked Cohen recently about her best advice for medtech makers, the secret to winning over juries in cases with sympathetic plaintiffs and when it’s time to settle.

Below, edited for clarity, is a transcript of our conversation:

MassDevice: You’ve had a long and very successful background in product liability defense. What’s the 1st thing you tell medical device companies who are looking to protect themselves against either existing or potential liability claims?

Lori Cohen: Obviously, the most important thing is to have a good product and all that goes with that, including, obviously, good testing, good compliance, regulatory compliance, good safety measures, that sort of thing. If a company, a client starts with a good product then that’s obviously a great place to start and an important place to start and then everything builds from there.

That’s No. 1. If you have a company that makes a safe product that’s tested well for the company, is involved in good regulatory compliance that’s, obviously, a great place to start and a good jumping-off point.

I should add that no matter what a company does, they’re not going to be immune to potential lawsuits, litigation, the fees that often occur in this industry. But they can do things, obviously, to put themselves in a better position. That would include making sure that people within the company understand how to conduct themselves in terms of communications and not emailing crazy thoughts that aren’t supported, making sure that people comply with protocols and standard operating procedures. I think beyond having the right, safe products is making sure the people who work at the company understand how to conduct themselves in terms of communications; verbally and also, importantly, in writing.

MassDevice: Can you tell us about your favorite case?

Lori Cohen: If I’m focusing on the trial itself and the courtroom experience, obviously, I’ve had a lot of amazing, really rewarding experiences in the courtroom. Sometimes it seems that the most recent trials are the most rewarding, because they’re so fresh in your mind, but I have had a lot of really significant courtroom successes and I attribute it to, obviously, having really supportive, great clients, but also having the really great team that I’m working with, a cohesive team in terms of presenting our cases.

Some of the ones that stick out in my mind are ones where we had very seriously injured plaintiffs with a lot of sympathy, but yet we were able to combat that and have the jury overcome that tremendous sympathy and recognize that my client didn’t do anything wrong.

I was defending Medtronic (NYSE:MDT) in a case that turned out to be … you’ll see a theme here that these cases tend to start with the idea that they’ll be a pretty short trial and they end up being a really long trial. That was the case here, it ended up being an 8-week trial in Connecticut. It was the Hurley vs. Medtronic case that started in 2007 and the case went through 2008. We went from Halloween through Martin Luther King Day 2008.

In that case we had a really sympathetic, nice, young woman who had a Medtronic pacemaker implanted, and she ended up having a cardiac arrest, and ended up in a persistent vegetative state as a young woman. It happened when she was about 13 and by the time we went to trial she was in her early 20s in a vegetative state. It was a very challenging, very sympathetic situation. There wasn’t a dry eye in the courtroom, basically, when they wheeled her in and her mom testified.

In that case, again, through our efforts and presenting the facts and the evidence to the jury, it helped the jury see that Medtronic, even though it was a big company, didn’t do anything wrong. That was, I think, a monumental trial, and one that I remember very vividly, and that was a very important win for a number of reasons.

Then there’s another Medtronic case, [with] a really sympathetic plaintiff, again. She was a very nice woman who was a singer, if you can believe it, and involved in her church singing group, and loved karaoke. She went in to have just a 10 minute outpatient procedure and ended up with this blowtorch injury and on a ventilator for the rest of her life until she actually died, after our trial.

That was a very challenging case, because we not only had the plaintiff coming after us and an excellent plaintiff’s attorney and firm, but also a number of co-defendants who wanted us to, basically, bear the burden of the case being the big out-of-town company, and so they were coming after us as well. We were in the crossfire of the plaintiff and the co-defendants and we were able to come out of that one with a win. That was another memorable success, again, a really well-fought victory and cohesive team on our part for Medtronic.

Another case was last year, we tried a case in state court in Missouri which was a vaginal mesh case for C.R. Bard (NYSE:BCR). As you probably know, most of the mesh litigation cases have been these really huge plaintiff verdicts. This was a case where we tried in Missouri state court and we ended up with a defense verdict after 9 weeks. That was one where the plaintiff’s attorney said, “We’ll have a 3 week trial.” It ended up being 9 weeks. We had a woman who took the stand, and she was getting very sympathetic, and telling her story, and we ended up winning that case as well as the co-defendant Boston Scientific (NYSE:BSX). Those are 3 big trial victories that I think have very strong memories.

MassDevice: The obvious theme is overcoming that natural sympathy the jury has with the plaintiff. What do you have in the toolkit that you deploy against that?

Lori Cohen: Always remembering the plaintiff, and always basically being very respectful and showing the appropriate degree of empathy, not being too critical, and not being too aggressive towards the plaintiff is very important.

Finding ways to let the truth come out about different issues and let the jury come to their own realization, because juries are very smart. Most lawyers don’t give them enough credit to figure things out on their own. Many attorneys want to, basically, repeat things, beat them over their heads with things, and feel that they have to really spell things out for juries.

A lot of times if you lead them in the right path and let them reach their own conclusions, that can be very effective. In other words, not be overtly critical but give them enough pieces of the puzzle to let the jurors then figure out on their own. The other component of that is being very respectful to the plaintiff, not being critical, not looking like you’re on the attack, and then also, at the same time, being very respectful to the jurors. Not talking down to them, not being patronizing to them in any way.

Some lawyers will get up in the opening statement and say, “Aw shucks, I can’t figure this out and this is going to be all technical and complex medical issues that you’ll never figure out and I’ll never figure out.”

Whereas I take the opposite approach, which is, “This is really interesting. It’s going to involve medicine, and science, and engineering, and we’re all going to figure it out together. We’re going to go on this journey together and figure it out together.”

You’re not patronizing. You’re being respectful to jurors and letting them know that you respect them, and that you’re going to help lead the path for them but that you know that they can figure it out as well.

One more thing I would say is I think that my persona in court is the same thing that you get if you run into me in the airport, or if you’re having a drink with me after work. I think that my personality and persona in the courtroom is the same as who I am normally. I think that’s very important. I don’t try to be anyone that I’m not.

MassDevice: Is there a point when you tell a client it’s time to settle? How do you approach that conversation? And how do you then turn and approach the other side?

Lori Cohen: I think that people view me as more of the “trial warrior” than the settlement counsel, but in any case I have to consider the settlement aspects as well and when that’s a good recommendation for the client. Most often I will try to look at the case right from the beginning and say, “This is a case that should settle early or this should be discovery.” Then I think it’s something that you have to reassess as the case goes on. You make an initial assessment, you look at it, try to give your client your best judgment and recommendations: “Look this is a case where somebody had a very small injury. It’s going to cost a lot of money to proceed with the case. This is one that you may consider for early resolution.”

It’s something that you assess initially, and then you’d have an open dialogue with your client, and you reassess at different junctures in the case. I think that’s really important, that you keep an open mind and have an open dialogue with the client. The last thing your client ever wants to hear is, on the eve of trial, a complete about-face or shifting of position where for 2 years you’ve said, “This case should never settle,” and all of a sudden you’re about to go to trial and you say, “Oh guess what? This case should settle.” I think it should be an ongoing evolution of discussion where you’re checking in with the client and giving them your best judgment if things go wrong.

There’s a lot of strategy that goes into the timing of settlement or the potential for settlement. It may be a situation like [the Medtronic airway case], where we tried to mediate the case several times, we tried to settle the case, but the demand was so great and the co-defendants had so little in terms of insurance money available that it was virtually impossible to get it settled because of the severity of the injuries, the alleged damages. In that case we ultimately had to go to trial. There are a number of cases where you may recommend settlement, but you cannot get it resolved because of these competing factors of the amount sought and then the potential liability for your client.

In terms of talking to the plaintiff’s attorney, again, it’s “pick your time wisely.” There may be a lot of benefit for doing certain types of discovery. You may have witnesses who are from the company who you need to tell your story 1st, so that the other side can realize that you have a strong defense. You may have to put up other witnesses 1st, so that the other side realizes you have a strong defense. You may have to depose the plaintiff to show that they understood the risks of procedure or that they really will not make a good appearance at trial. There may be different factors that play a role in when you reach out to opposing counsel for settlement. There may be things that have to happen 1st but again, it’s an evolution in the case and something that you’d have to consider initially, and then reconsider over time. Then be very strategic and very collaborative with your client, in terms of determining when would be a good time to broach the topic of settlement with opposing counsel or if it’s a case where you never broach the subject.

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