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Q&A With Kirkland & Ellis' Leslie Smith

Leslie Smith is a partner in Kirkland & Ellis LLP's Chicago office.

Smith concentrates her practice in the areas of pharmaceutical and class action litigation.

Q: What is the most challenging case you have worked on and what made it challenging?

A: The heparin products liability litigation in which Kirkland represents Baxter Healthcare Corporation and Scientific Protein Laboratories LLC in cases involving the prescription blood thinner, heparin. In 2008, after decades of safe heparin supply, it was discovered that for a short period of time, a counterfeit ingredient had been added to crude heparin, the starting material for the heparin blood thinner. More than a dozen companies unknowingly bought the raw or unrefined heparin containing the counterfeit ingredient as a primary ingredient in their heparin products.

The plaintiffs claimed injuries resulting from the alleged administration of contaminated heparin products. Hundreds of cases were filed across the country and were successfully consolidated into two actions: a federal multidistrict litigation in the U.S. District Court for the Northern District of Ohio and a state court action consolidated in Cook County, Ill.

The MDL court granted the defendants' motion for summary judgment on general causation with respect to several categories of claims. The defendants then moved to apply the general causation order to individual cases based on the specific facts of those cases. In addition, hundreds of cases in which the plaintiffs received uncontaminated rather than contaminated heparin were dismissed in the federal MDL proceeding and in a consolidated Illinois state court proceeding. Most recently, Baxter prevailed in a jury trial in Nebraska state court.

Q: What aspects of your practice area are in need of reform and why?

A: There should be further reform in the area of electronic discovery. The asymmetric burden placed on corporate defendants regarding the retention and production of electronically stored information creates opportunities for plaintiffs to impose e-discovery burdens for strategic reasons unrelated to the merits of the case. Discovery skirmishes unrelated to the merits of the dispute are not in the interest of the courts or the parties involved. 

Q: What is an important issue or case relevant to your practice area and why?

A: My partner Jay Lefkowitz is handling the appeals of several important decisions that relate to my practice and the pharmaceutical companies I represent. In 2011, Jay successfully argued before the U.S. Supreme Court in PLIVA v. Mensing that federal law preempts state law under the U.S. Constitution's supremacy clause, thus barring plaintiffs from suing the generic manufacturers. Following the decision, more than 90 judges dismissed cases against generic manufacturers due to PLIVA.

Now, several other cases are headed for review by the Supreme Court and could have a significant impact on the companies I represent. Those cases include Bartlett v. Mutual Pharmaceutical Company, in which Jay represents Mutual Pharmaceutical in its challenge of the First Circuit's decision to uphold a $26 million jury verdict on the theory that even though the company could not alter the composition of the drugs any more than they could alter the product warnings, the company could have simply stopped selling the product, and Upsher-Smith Laboratories Inc. v. Louisiana Wholesale Drug Co. Inc. et al, in which Jay represents Upsher-Smith in its challenge of the Third Circuit's decision that all so-called "pay-for-delay" pharmaceutical settlements are presumptively anti-competitive.

Another case I am watching is Humana v. GSK, in which the Third Circuit ruled that private health insurance companies offering Medicare advantage plans (MAOs) may invoke the private cause of action in the Medicare Secondary Payer Act to sue putative tortfeasors for double damages. On behalf of GSK, Jay has petitioned the Supreme Court to review the decision, which, if not reversed, will have dramatic consequences for consumers, manufacturers and insurers because it endangers the settlement process in countless mass tort cases.

Q: Outside your own firm, name an attorney in your field who has impressed you and explain why.

A: The most impressive trial lawyer I know is my father, Raymond Smith, who has had a long and successful career as a criminal defense attorney. I have learned so much from him in terms of cross-examination and presenting the facts in an understandable and persuasive manner.

In the field of commercial litigation, I have a great deal of respect for Susan Lichtenstein, senior vice president, corporate affairs and chief legal officer for Hill-Rom. Susan is incredibly smart and has excellent business judgment. She has built successful law departments not only at Hill-Rom but also at Tellabs, Ameritech Corporation and Baxter Healthcare, where she served as corporate vice president and general counsel at Baxter International and was responsible for global legal matters, corporate communications and government affairs.

Susan has been responsible for advancing the careers of countless lawyers, providing opportunities, insightful advice and invaluable mentoring. Rather than focusing solely on her personal success, she has worked to help others succeed.

Q: What is a mistake you made early in your career and what did you learn from it?

A: Early in my career, there were times where I was too focused on crafting the perfect response to a question posed by a client rather than balancing the need for accurate advice with the client's need for a prompt and decisive response. Outside counsel needs to be sensitive to the fact that the in-house lawyer has a business client who is waiting for an answer. It is important to return phone calls as soon as possible, even if you are only able in the initial call to provide assurance that you are working on the matter or to provide an interim response.

I also learned that it is critical to understand the client's business objectives. While it may be possible in the long run to win a case at trial, the client may prefer a quick and definitive resolution.