The following is an excerpt from Practice Perspectives: Vault's Guide to Legal Practice Areas.
Mara Cusker Gonzalez, Partner, and Rachel B. Passaretti-Wu, Partner — Product Liability & Mass Torts
Mara Cusker Gonzalez is a partner in Dechert’s nationally recognized Product Liability and Mass Torts group. She represents manufacturers in complex litigation, including class actions and cases filed by consumers and state and local governments. In addition to personal injury cases alleging that a product was defective or lacked adequate warnings, Mara’s practice includes cases claiming deceptive marketing, public nuisance, and RICO and False Claims Act liability. Mara has been recognized as one of Dechert’s Exceptional Teachers and helped develop a mass torts litigation training program for associates. She also has an active and varied pro bono practice.
Rachel B. Passaretti-Wu is a partner in Dechert’s Product Liability and Mass Torts group. She represents defendants in products liability, mass torts, and putative class actions and dedicates the majority of her practice to representing manufacturers and producers of various products, including in nationwide pharmaceutical and environmental tort litigation. Rachel manages the day-to-day defense and strategy of numerous putative class actions, as well as thousands of cases through various stages of litigation, including appeals. She has been selected to the Super Lawyers list and has ranked in the Who’s Who Legal publication.
Describe your practice area and what it entails.
Product liability cases are civil tort lawsuits claiming someone was injured as a result of buying or using a defendant’s product, such as a prescription medicine or medical device, a cosmetic product, or an electronic device. These become “mass torts” when there are large numbers of plaintiffs—sometimes tens of thousands or more—bringing similar claims. In addition to product liability personal injury cases, mass torts include other large litigations, including class actions and cases spread across multiple courts and jurisdictions, where many people claim that a manufacturer acted improperly in the way that it made or marketed a product. The large scale of these litigations can require using special procedural devices, such as the federal multidistrict litigation (MDL) law, which permits parties to request that all federal cases asserting related claims be transferred to one judge for pretrial proceedings. The parties and courts also use creative case management tools to streamline these litigations and get to the merits of the claims and defenses. For example, the court may select test or “bellwether” cases for motions and trial or divide cases into different tracks. Our litigations often involve highly regulated products, novel legal theories, and hotly contested scientific questions. Dechert’s practice helps clients navigate and resolve complex product liability cases and mass torts of all kinds in federal and state courts around the country.
What types of clients do you represent?
Mara: I specialize in representing pharmaceutical manufacturers. My practice has included representing Pfizer, Hospira, Amgen, and Purdue Pharma in litigations involving FDA-approved prescription medicine, such as statins, antidepressants, chemotherapies, and opioids. I have also represented major chemical manufacturers in cases alleging toxic environmental exposure. Our group’s broad practice also includes clients who make and sell cosmetics, food and agricultural products, and consumer electronics and building products, among others.
Rachel: I represent branded and generic pharmaceutical companies, as well as companies facing environmental tort litigation. I was part of the team that served as national coordinating counsel for Endo Pharmaceuticals in a federal MDL, in addition to thousands of state court cases. More recently, I am representing Saint-Gobain Performance Plastics in connection with multiple putative class actions and personal injury cases alleging damages from perfluorooctanoic acid (PFOA), which is produced and used worldwide as an industrial surfactant in chemical processes to make materials waterproof and stain resistant.
What types of cases/deals do you work on?
We work primarily on large mass torts, ranging from litigations involving thousands of people claiming they were harmed by improper labeling or marketing of a prescription medicine to class actions in which homeowners allege they have been exposed to harmful chemicals in air, water, or building materials to cases in which municipalities and state governments claim a manufacturer’s marketing activities created a public nuisance. We work closely with clients at each step of a litigation, including strategic decision-making about jurisdiction and whether and where to coordinate cases, writing and arguing early motions, overseeing discovery, working with experts and company witnesses, preparing dispositive and expert motions, developing a trial record, trying cases, and handling appeals. We also counsel clients on regulatory matters and limiting litigation risk.
How did you choose this practice area?
Mara: I studied public health and environmental sciences before law school and loved the subject matters. As a summer associate interested in litigation, I worked on a pro bono trial with a mass torts partner who suggested I try an assignment. Needless to say, I followed his advice, and I’ve been fortunate to work with and learn from the same great team ever since. I love the variety and pace of the cases; the many opportunities to write and think creatively about a broad spectrum of legal and policy issues; and the interplay between the worlds of science and medicine, tort law, and regulation. It is rewarding to help clients address what are often very novel legal and scientific challenges to their important products and businesses.
Rachel: I’ve always been drawn to science and even contemplated medical school before my business ethics class in college convinced me to pursue law school instead. So as I started looking for 2L summer jobs, I searched for practice areas that would allow me to find my way back to science. While intellectual property was another option, the real human element of product liability cases made the choice obvious for me.
What is a typical day like and/or what are some common tasks you perform?
Mara: A typical day often includes a mix of “stand-up” time (e.g., meeting with an expert or fact witness, taking a deposition, or appearing in court), lots of real-time communicating with my teams and clients about litigation activities and decision points, and staying on top of the latest case filings and relevant legal and industry news. Most days involve at least one significant development—from a long-awaited decision in one of our cases to a new scientific study. We communicate the most important information and any potential litigation impact to our clients, recommend next steps, and mobilize or adapt resources if necessary. This is almost always a team effort, and I work closely with associates at all levels, many of whom have become subject-matter experts on specific legal, factual, and scientific issues.
Rachel: The only thing that is typical about my day is that it is always different. I may be spending the day on the phone advising clients on media and PR issues in the midst of crisis management, going to court, meeting with an expert, or editing a brief. Each day presents a new challenge, which is one of the best parts about practicing law in this area.
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
Mara: Experience with and interest in civil procedure, federal courts, evidence, and negotiation will all come in handy, along with as much legal writing practice as you can get. An openness to learning about scientific methodology, statistics, and medical and other scientific issues is also helpful. Part of our job is to help make those often-complex issues as clear and accessible as possible for judges and jurors.
Rachel: In addition to being a master of civil procedure, I’ve found learning more about epidemiology to be enormously helpful. I think a course in statistics would also be useful and not necessarily something a lot of lawyers have in their backgrounds.
What is the most challenging aspect of practicing in this area?
Rachel: The most challenging aspect for me is getting a fair shake for our clients. We are typically right on the law and the facts, but judges find themselves faced with difficult questions and often sympathetic plaintiffs or thousands of claims, so it can be extremely hard to get the right result for our clients.
What do you like best about your practice area?
Rachel: What I enjoy most is that while there are certainly similarities in cases where you can bring prior learning and expertise to bear, there are always unique challenges with different twists and turns. So there is always an opportunity to problem-solve and be creative—I think that’s the best part about being a lawyer and what makes this practice area so great.
What misconceptions exist about your practice area?
Mara: Tort law and the practice of personal injury and consumer-oriented litigation is more dynamic than many people think. While familiar legal principles like proximate cause and due process anchor much of our work, our practice is also impacted by a constantly evolving backdrop of scientific, technological, regulatory, and legislative developments, along with creative lawyering by the other side. We get to help our clients and courts understand and inform how the law should operate in new and complex real-world situations.
Rachel: I think people often wonder if we ever feel morally conflicted about the work we do, so I think the largest misconception is that the plaintiffs’ bar is on the correct side of many of the controversies in which we are involved.
What is unique about your practice area at your firm?
Mara: Dechert’s practice is unique in its breadth of product and mass torts cases and our collaborative approach. Our team includes lawyers who have worked together for decades and built a reputation for successful advocacy and seamless representation in many of the largest and most complex torts cases in U.S. history. We also prioritize knowledge-sharing and training junior attorneys holistically. Junior lawyers are involved in all aspects of our practice and build broad skill sets through early opportunities for substantive responsibility, including taking depositions, preparing and defending witnesses, managing individual cases, and reporting developments to clients.