Sheila Birnbaum of Skadden, Arps, Slate, Meagher & Flom is one of the most prominent litigators in the field of products liability and mass tort and a pioneer for women in the profession. Dubbed the ‘Queen of Toxic Torts,’ Birnbaum played a groundbreaking role in products liability cases involving oral contraceptives, breast implants and other sprawling litigation.

She has also been deeply involved in the compensation of people who lost family members or were injured themselves in the al Qaida attacks on the World Trade Center on Sept. 11, 2001. At the behest of Southern District Judge Alvin Hellerstein, she mediated more than 90 wrongful death cases to settlement between victims, the airline industry, airline security companies and the insurance industry—cases that were brought by people who declined to take part in the initial September 11th Victim Compensation Fund overseen by special master Kenneth Feinberg.

Birnbaum, 72, is now working pro bono managing the reopened victim compensation fund set up by Congress in passing the Zadroga Act, where in excess of 14,000 responders, survivors and people who live near Ground Zero have filed claims concerning damage done by the toxic dust in the air on and after 9/11. Birnbaum anticipates that the fund will begin making its first payments early in the new year.


Q: The reopened September 11th Victim Compensation Fund has $1.55 billion for treatment of any illness determined to be related to the clean-up at Ground Zero and then additional compensation for diminished quality of life. How did you determine which illnesses to include?

A: Basically, for the compensation part of the bill, we followed the determinations of NIOSH, the National Institute of Safety and Occupational Health, which administers the treatment program, because they had the medical expertise and scientific expertise as to what injuries should be covered as related to the World Trade Center injuries. We also concluded if NIOSH added new injuries as a result of re-examining the medical and scientific evidence, the fund would also add them, so when NIOSH added certain cancers to the treatment program we agreed to add those cancers as 9/11 related.

Q: How did the division among experts on the causal link between Ground Zero dust exposure and cancer affect your decisions?

A: Well, we didn’t make an independent inquiry as to the issues of scientific and medical causation but relied on the determination made by NIOSH. In part, since administrative costs are included in the limit on the funding we did not want to spend those limited resources to have an independent evaluation done. NIOSH had the credibility.

Q: You have come under some criticism by some World Trade Center advocates and Senator Charles Schumer because the fund has yet to begin making payments. Why is that?

A: I think the reason for that is we don’t have any forms that need to be completed for people to be compensated – we can’t even review them. The problem is they are not giving us the information we need to make a determination. Almost 80 percent of the claims being brought are brought by lawyers, so we are reaching out to law firms and applicants to tell them specifically what we need as quickly as possible so we can make the payments. If Schumer would have called me instead of doing what he does so quickly, he might have gotten the real information. I knew someday the honeymoon would be over and people would be taking pot shots.

I think it’s now going to speed up and we will be in the process of reviewing large numbers of claims this year.

Q: How would you compare the reopened compensation fund with the settlement of the 10,000 World Trade Center respiratory cases before Judge Hellerstein and other mass tort cases? Is a reopened fund unique?

A: I think it is unique. As Ken Feinberg said, regarding the first fund, there’s never been anything like this. First of all, this is a no-fault system. Plaintiffs do not have to prove causation in the formal sense we expect and don’t have to prove anybody is liable. With regard to the [Hellerstein] settlement, it was a unique settlement based on points that plaintiffs were given. Our system of compensation is different in that claimants receive their economic loss, which means out-of-pocket expenses for medical costs, the amount of lost income they incurred as a result of their injuries and other compensable costs, minus what they received from collateral sources—including pensions, life insurance, and other settlements that were done. So even the nature of the compensation is in some ways better than they received in the court system and in some ways worse.

Q: How is this experience different from your work for Hellerstein guiding the 9/11 wrongful death cases to settlement?

A: It’s really looking at apples and oranges because we had to apply different rules and probably some people did better and some people did worse. So they’re just two different systems with different rules and the outcomes could be quite different. From the claimants’ point of view, the important thing is you don’t have to establish liability on anybody’s part and you don’t have to establish causation in the traditional sense that you have to in federal court.

Q: You held a number of town meetings to explain the rules for the reopened fund. What was it like to attend these town meetings, and how did you prepare?

A: When I was appointed as a special master I felt it was very important to meet with the 9/11 community, the leadership, the union leaders, interest groups of all types—the doctors involved in the treatment program, community board members, to understand their concerns and explain how the program would work.

I think people didn’t understand originally that the program was limited in its funding. The first fund had no limit on the amount of money available and disbursed over $7 billion. This fund is limited to $2.775 billion, and people had to understand that there might be a pro-rating of the money they would receive if there were a large number of claimants.

And it was important that people understood the scope of the act because we had limitations built into it as to the time period during which they had been exposed and we had to determine the geographic area where the exposure took place. Through town halls and meeting with community leaders we reconsidered our original position as to how far the geographic area should go and we increased the area where people would be included. That was done because we had many members of the community telling us there was toxic dust in their homes and in their neighborhoods.

Q: Was this a more complicated process than other mass tort cases you have had handled?

A: In some ways it was because we had a set of rules given to us by Congress and we had to create additional rules, to implement the rules and to communicate with various constituencies, not just plaintiffs’ lawyers. With mass torts you’re dealing basically with plaintiffs’ lawyers. Here we have many members of the 9/11 community that are public servants, firemen, policemen, emergency workers, construction workers and there was more of an outreach to the community than you would have in a mass tort lawsuit. There’s a more direct relationship with the community.

Q: Can you describe your experience mediating the wrongful death and injury cases?

A: Well, in a way its still emotional and there are many victims with very sad stories of how their lives have been wrecked by the injuries they sustained as a result of 9/11, but in a way my role is to be treating the whole community of claimants, some with serious injuries, some with not so serious injuries.

In 9/11 mediation, we were confronted mostly with cases where people had died, either at the Pentagon or on planes or at the World Trade Center, so every family had a story of how the event really changed their lives. With the compensation fund, some of the injuries have caused death and some have not, so it’s a different role as such. Although you have to be moved by the cases of the responders and those who went into harm’s way for all of us, we are not engaged in day-to -day dealing with the families as I was when I was mediating the wrongful death cases.

Q: What do you think was the most significant precedents set by Hellerstein throughout the 9/11 litigation?

A: From my perspective as a special master was his concern for the families. On many occasions family members needed to talk to the judge about their stories and he always made himself available to help them overcome their grief and anger so that cases could be resolved, and he brought a sensitivity to those efforts which I think the families really appreciated.

Q: Was there ever a moment when you questioned whether the airlines should be held liable for 9/11?

A: To me that wasn’t an issue I had to spend any time determining. As part of the settlement process there was always an assumption that there would be liability only for the purposes of trying to come to a resolution. There was a risk on the airlines’ part that they would lose on liability and that would be a terrible precedent for them and that is why they wanted to resolve these cases.

On the other hand, on the families’ part, there was a risk they would not be able to establish liability and that’s why they should have settled.

Another important issue was that, under New York law, you would have to find a percentage of liability for the airlines in comparison to all other tortfeasors, including the terrorists! So the terrorist could have been found 80 percent liable and the airlines 20. So that was another important reason for the families to settle.

Q: But is it a good idea or not for airlines to be held liable? Is it rational for our system to hold them responsible to compensate people for injuries directly caused by terrorists?

A: I think that 9/11 was such an event, one of the events of our lifetime, that had such a traumatic impact on the country that there was a real need for healing and for resolution and the question is can we have similar events and will there be similar congressional and other solutions? The hope is that we don’t have another event, but if we do there are serious questions as to liability.

So I think the congressional response was the right response, the fund was an important contribution to that and the continuation of the fund was an important contribution as well to try and justly handle the aftermath and the injuries people suffered. It worked well here. I mean, look at what would have happened. We would have had 3,000 lawsuits for death brought against the airlines and if the airlines had been found responsible they would have been bankrupt.

Q: It’s a common criticism that the plaintiffs bar is an enormous drag on the economy in the area of mass tort, toxic tort and products liability. How would you address that criticism?

A: Sometimes it seems that this is a very litigious society. In some states there has been legislation to try and draw lines where there is no liability. For example, in New Jersey and other states, if a pharmaceutical manufacturer has abided by all FDA regulations and their warnings have been approved by the FDA, they can’t be found liable absent fraud. I think it’s important to limit liability when the conduct has been approved by an agency with a great deal of regulatory authority.

Q: How did you get interested in products liability and mass torts?

A: When I was a law student too many years ago to count, strict liability was just becoming an issue and my moot court problem was about products liability and so it was destined! At that point, I knew more about the issue than most lawyers because I studied so hard for the competition. And when I started out as a lawyer, I went with a firm that was doing that kind of work so I was involved in this field before we called anything a mass tort. My firm and I represented Syntex in the oral contraception litigation in the 1980s, that was really one of the first mass torts around where all of the manufacturers of oral contraceptives were being sued by women who had strokes allegedly as a result of ingesting the pills. We created a national defense effort and handled the cases in a way that mass torts are handled today, but we didn’t realize at that point that this was going to become a model for other kinds of mass tort cases. Then I was involved as one of the national counsel for Dow Corning in the breast implant litigation and at one point in that litigation there were over 40,000 cases.

Q: What advice would you give to young attorneys interested in pursuing this field?

A: I would tell them that this is a wonderful area of the law—you have to mix science, medicine, procedure, evidence and you can actually get into a courtroom and argue cases and try cases. This is one area where cases actually get tried. It is an area of the law that is always growing and there are always challenging issues so I feel quite blessed. I can’t think of a day I was ever bored practicing in this area.

Q: As a former president of the New York Women’s Bar Association, what important changes have you seen for women in the legal profession?

A: A lot more women are trying cases and getting into courtrooms. In the early days of my practicing I was the only woman in a case or a courtroom. The number of women judges has increased exponentially, so the playing field has changed substantially. I never had a woman professor and I taught for several years, now there are so many women teaching law, deans of law schools, chief judges on our highest courts. When I was starting out I never believed there would be such a significant change.

I know people who talk about a glass ceiling but I don’t believe it really exists any more in the legal profession because I see many women partners first chairing deals and litigations.

Q: What was the most difficult or contentious case you’ve ever handled?

A: It was representing State Farm in litigation that developed after Hurricane Katrina when they were under attack in Mississippi and Louisiana not only by the plaintiffs bar but also by state officials. The language of their policies and other insurance policies included a flood exclusion and floods were therefore not included under their homeowner policy but because of the magnitude of the event, state officials were trying to force the insurance industry to respond when their policies did not require it. So it was very difficult dealing with state attorneys general as well as the plaintiffs bar and the political overtones of the entire event. Eventually the courts interpreted the flood exclusion as it was meant to be interpreted, and all of the litigation was resolved but it was a very complex and difficult litigation.

 

Q: You are doing the 9/11 work pro bono?

 

A: Yes, my deputy, Debbie Greenspan, who worked on the first fund is doing this pro bono as well. As I told people, how could I ever take money out of the fund when I would be taking it away from a potential claimant? With a fixed fund I would not even contemplate it.

@|Mark Hamblett can be contacted at mhamblett@alm.com.