Sara J Gourley
Office:
One South Dearborn
60603
City:
Chicago
State:
Illinois
Country:
USA
Tel:
+1 312 853 7694
Fax:
+1 312 853 7036

Questions and Answers:

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Sara Gourley is a litigation partner and products liability practice leader in Sidley’s Chicago office and served on the firm’s executive committee for over 15 years. Sara has substantial experience in pharmaceutical, medical device and blood products liability litigation. Her practice is concentrated in pharmaceutical and medical device defence, especially multi-jurisdictional coordination and defence of class actions. Sara has served in leading defence roles in many of the pharmaceutical industry’s most significant litigation.

What attracted you to a career in product liability?

A great mentor who practised in this area, along with some wonderful opportunities early in my career, which kept me engaged and interested. I always thought I wanted to be a courtroom lawyer, but I didn’t know that I would also decide to practise in a single substantive area until I tried products liability. It allows you to learn new things every day, work with interesting and smart people, and help clients solve real problems.

Was specialising in the pharmaceutical and medical device industry a conscious decision? If so, what drew you to this field?

It was a conscious decision, helped along by my early experiences in the field. I have always been interested in the intersection of law and science, so that was the first thing that drew me to this area. I am also sort of a “civil procedure nerd” who likes to think about the tools and strategies available to rein in large and dispersed litigation. At its core, a large drug or medical device matter – usually an MDL and related state court litigation around the country – is a multifaceted and complicated puzzle that needs solving. Sometimes that solving comes by motion, sometimes by trial, sometimes by settlement, and sometimes a combination of all three. And complex drug and medical device cases are never just about products liability. There are almost always government actions, class actions, and other claims that also need to be resolved in order to actually solve the client’s problem. It is never dull.

What qualities make a successful product liability defence litigator?

First, last and always is preparation. You need to understand the science, your client’s business and goals, and the venue(s) in which you will be defending the medicine or device.

What has been the most memorable case you have ever worked on?

I was lucky enough to work on the haemophilia/HIV litigation from its inception in the mid-1980s until it was ultimately concluded with a ground-breaking settlement. The cases involved the transmission of HIV to people with haemophilia through the blood products they used to treat their underlying haemophilia.

Retrospective studies ultimately showed that most people who became infected with HIV this way were already infected before the virus was identified and before there were any tests for it. Of course, this litigation was happening at a time when for many there was a stigma attached to HIV/AIDS, the science was ever-changing, and the people who were the plaintiffs still required the medicine to avoid the often life-threatening effects of their haemophilia. At the same time, the law was developing on things like market-share liability, which was being pursued as a means to address the causation challenges faced by the plaintiffs (ie, which blood product had caused the infection?). Ultimately, we reached a settlement between the plaintiffs and all of the processors of the blood products in the United States to resolve the litigation.

What are the biggest challenges when working on multi-jurisdictional class action defence cases?

Whenever you have many cases pending in many different jurisdictions there will be logistical challenges in trying to best coordinate all of the matters without undue duplication of effort. There are sometimes competing plaintiff-lawyer groups, which can further complicate matters. I have found that most judges are willing to roll up their sleeves and help (or at least not hinder) efforts to streamline big litigation. But sometimes individual dockets take precedence over the litigation and the client finds itself defending cases in different jurisdictions at the same time. That is hard on witnesses even more than the lawyers, and is a challenge that requires some up-front discussion and negotiation to try to avoid.

How has the US market developed over the course of your career?

The US market has changed in a number of ways over the course of my career. The first big change, I believe, was the “virtual law firm” model. Instead of a single firm being hired to handle an entire matter, individuals are hired to work with people from other firms. The number of firms involved varies, depending on the size of the case, but the model requires significant management and thinking upfront to make sure that everything is covered and being handled by the right people, and that the firms work well together.

Another change is the increasing globalisation of product liability matters. The US will likely remain the focal point of litigation, but increasingly we are seeing claims and lawsuits coming in from other countries or filed in other countries. It is really not surprising given the globalisation of the market for medicines and devices, but it does require a strategy even bigger than what we have to deal with in MDL/state court litigation.

Finally, the most recent development, which is still in progress and requires some hard work, is the rise of the litigation funding companies. There are serious efforts underway to require greater transparency for these arrangements which may influence the course of litigation without disclosure to at least some of the parties affected.

Where do you expect product liability defence law and practice to be in five years’ time?

As with the rest of the law, product liability defence will increasingly be affected by AI – both through its use in the defence of document-intensive cases and because more products will be developed and marketed that use AI and themselves create product liability risk. Recent jurisdiction decisions (BMS and its progeny) mean that product liability litigation may become more dispersed over more jurisdictions, requiring more case management and oversight, and more challenges for effective coordination.

What advice would you give to younger lawyers looking to specialise in the field?

It is a field where you can use your curiosity, your problem-solving skills, your people skills, and your best strategic thinking to solve big problems. Go for it!

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