Photo by Thomas Strand.
Not every second-year associate gets to work on a historic case like the Big Tobacco litigation of the mid-1990s. For Tara Sutton, the experience was a formative one and laid the groundwork for her becoming one of the nation’s leading plaintiff-side product liability attorneys. Sutton also had experience in general business and intellectual property litigation when she became chair of Robins Kaplan’s mass tort group in 2004. Since then, her track record in complex cases against pharmaceutical and medical device companies has been second to none. Her passion for the job is rooted in her desire to “help ordinary people achieve some level of justice” for one of the worst events they or their families will ever face.
“It is a privilege to show my clients that everybody is entitled to justice, not just the rich and powerful,” says Sutton, a 1992 University of Iowa College of Law graduate. “It doesn’t work out perfectly all the time, but there is usually something that we can do to help.”
Lawdragon: What did you start out doing as a litigator and how did you begin to develop your current practice focus?
Tara Sutton: I have had an extraordinary opportunity to work in a variety of practices during my 25 years at Robins Kaplan. I started out in our business litigation group, focusing on representing mid-size companies in mainly contractual disputes.
When I was a second-year associate, I got very lucky. I was asked to join a very high-profile litigation team that was devising a novel legal theory to pursue the tobacco industry on behalf of the State of Minnesota for the costs of treating smoking-related illnesses. At that time, in 1994, the tobacco industry had been in litigation for fifty years and never lost a single case and had turned over only 4,000 pages of documents in discovery. This case really changed everything for me. I was involved in every aspect of the case – including being the only associate – in the well of the courtroom during a highly-publicized trial. After four years of litigation – including unearthing more than 30 million pages of internal documents, litigation of crime-fraud issues, more than a dozen unsuccessful interlocutory appeals by the tobacco industry, including two to the U.S. Supreme Court, and four months of trial – the case settled on the eve of jury deliberations for $6.6 billion and unprecedented injunctive relief. Former Surgeon General C. Everett Koop, who actually attended a portion of our trial, called the Minnesota tobacco litigation one of the most significant public health achievements of the 20th century.
LD: What came after that?
TS: After playing in the Super Bowl of litigation, I had to decide what to do next. Tobacco was a tough act to follow, but I soon discovered the rewards of a corporate practice, representing Medtronic in a number of high stakes intellectual property battles in the early 2000’s regarding coronary stent and catheter technology. It was quite a shift but really gave me insights into the other side of the aisle and business considerations behind litigating versus settlement.
I also developed a keen interest in medical treatments that made my next career move – chair of Robins Kaplan’s Mass Tort group – a more natural fit. In 2004, when I was a junior partner and mother of two young children, the executive chairman of the firm asked if I would be willing to take over the department. Part of the thinking was I could cut down on my travel, which makes me laugh now as I have yet to have a year where I didn’t make some elite airline status. Robins Kaplan had been a pioneer in developing the field of mass torts, starting in the late 1970’s when the firm represented over 500 women suing A.H. Robins over the Dalkon Shield IUD birth control device. I was taking over a department with a storied reputation and stellar lawyers. My days taking on the tobacco industry had given me a keen sense of justice and fair play that made taking on big corporations on behalf of injured individuals an easy choice. The challenge was taking the practice to the next level in a moving environment exploding with a proliferation of MDLs and new plaintiffs’ firms swarming to the practice.
LD: Your practice involves being able to understand and explain complicated medical issues, drugs and products. What are the challenges associated with being able to do that effectively?
TS: As I tell my colleagues who practice in the intellectual property space, the scientific issues involved in mass tort cases are just as complicated and daunting as those I faced as an IP litigator. I have found that the most successful approach is to bring on key experts in the field from the beginning, preferably before we even initiate suit. Because mass tort cases involve high risk-high reward, I am a strong advocate for employing experts from the onset who explain and help understand the path to proving medical causation. The experts can also help shape discovery requests and assist in developing the liability story. I ultimately have to be prepared to explain these difficult concepts of pharmacology, mechanism of action and causation to a jury, and have found it very helpful to explain by analogy. For example, in a recent case involving severe GI effects from a hypertension medication, we were able to rely on a light-switch type analogy as the GI effects subside rapidly upon cessation. It is also extremely helpful to use experts that have had first-hand experience with the side effect at issue. They are powerful, credible advocates for cases and well-versed in explaining how this might happen to lay persons.
LD: More generally, how would you describe your style as a trial lawyer?
TS: I just try and be myself. My style is not to be bombastic or accusatory. That isn’t comfortable for me. I strive for a conversational or educational tone and am polite with opposing counsel. Whether before a jury or a judge, I try to be authentic and tell a story that demonstrates how my clients were harmed and why they are entitled to recovery.
I also think it is important for the jury to see how much I believe in my clients and how hard I am willing to fight for them. I also am not the type of lawyer who feels comfortable “winging it.” I spend a tremendous amount of time on preparation and making sure I have complete command of the record and the exhibits. Being able to pull out the perfect exhibit to use on re-direct or cross examination from memory is invaluable in the complex cases I work on involving millions of pages of documents. Although I might not have tried as many cases as my adversary, I always feel like my level of preparation puts me at an advantage. I also like to think it gives me a high level of credibility with the court and the jury, which is essential.
LD: What does it take to effectively manage such huge MDLs and other large cases that can last years?
TS: MDL litigation has exploded. More than 30 percent of cases on the federal docket nationwide are part of an MDL, with mass torts comprising a vast proportion. As a result, developing an effective plaintiffs’ leadership structure from the outset is a hallmark of whether a case will languish or proceed efficiently towards resolution. Plaintiffs’ leadership battles are often rough and tumble. For too long, there were so many repeat players in plaintiffs’ leadership it felt like breaking into the “club” was impossible. Fortunately, the courts and also the plaintiffs’ bar – spearheaded by strong women leaders – are making great strides to address this problem of diversity in leadership.
But that is only part of the issue in managing huge MDLs. Another necessary skill set is the ability to work cooperatively and collaboratively with other attorneys from other firms. Economically, it is nearly impossible to prosecute a huge MDL on your own. Shared costs and shared risk are a necessary component to taking on large pharmaceutical and medical device manufacturers with far greater resources. Because we are unrelenting competitors by nature, you have to have the diplomatic skills and organizational skills to direct this incredible energy on the opponent so that success will result for everyone involved.
LD: Of your cases from recent years, can you discuss one that stands out as particularly memorable?
TS: Early in my career I was focused almost solely on the fight but an equally valuable skill is envisioning the path to settlement. One of my favorites was the Stryker Rejuvenate/ABG II defective hip litigation from a few years ago. It was a case involving more than 4,000 claims where the product had been withdrawn from the market. Along with my co-leadership, we agreed from the outset to engage in a bellwether mediation program while conducting parallel fact discovery. Typically, neither side is motivated to even bring up the word “money” until we have worn each other down in discovery and motion practice. Rather than viewing resolution discussions as a weakness, both sides – with the help of the coordinating judges – agreed to engage in a front-loaded resolution process. Much like we select bellwether cases for trial, 21 cases were selected for mediation, representing a range of injury categories. We agreed to mediate the cases before just two mediators, so neither side could claim that a particular result was an outlier due to a runaway process. In the end, 20 of 21 cases mediated settled. This process then led immediately to global resolution discussions, with both sides armed with important information about the value of the various cases at trial. After four months of negotiations, we announced an uncapped settlement program valued at approximately $1.4 billion. Thus, in just over two years a massive mass tort case was settled.
LD: Is there a case from earlier in your career that is especially meaningful to you, either for establishing your reputation, proving your trial skills or the benefit achieved for the client?
TS: I would definitely say the Mirapex products liability litigation against Pfizer and Boehringer Ingelheim. The case involved a very novel injury – the development of compulsive gambling compulsions as the result of dopamine agonist therapy. The patient population involved suffered from Parkinson’s disease – a dopamine deficiency disease – and Mirapex treated the disease by activating dopamine release in the brain. The trouble was the drug not only activated dopamine in the movement region of the brain impacted by Parkinson’s, but it also activated dopamine in the reward center, where addictive behaviors are triggered. Although there were reports of the side effect in the medical literature and a very plausible biological explanation for why gambling behavior could occur, the case was viewed with skepticism. Unlike other mass tort MDLs where multiple plaintiffs’ firms flock, Mirapex was an anomaly – our firm was virtually alone from beginning to end. As lead trial counsel, our team ultimately won a verdict of $8.27 million, including $7.9 million in punitive damages, on behalf of a retired police officer from Wisconsin who lost $175,000 while gambling on Mirapex. That verdict ultimately led to resolution of every case in the MDL and helped enhance our reputation of taking on the hard case and winning, even when we were on our own.
LD: Is there a mentor who played a big part in how your career evolved?
TS: Yes – Roberta Walburn. She is the person who asked me to join the tobacco litigation team – as a core member – when I was a relatively unexperienced lawyer. Roberta is one of the great legal minds in the country and the hardest working, most dedicated lawyer I have ever come across. She taught me that no detail should be overlooked, that every battle was an important one, and also that the legal practice can be exciting and cutting-edge. These are lessons that I try to follow every day. Roberta not only gave me the opportunity, she showed me how to do it.
LD: Was being chair of the mass torts group something you had been interested in doing as a younger lawyer?
TS: I wasn’t looking to become the chair of the mass tort group. I was the relationship manager for one of our largest corporate clients at the time and was concentrating more on expanding that relationship and my personal trial expertise. But when I was asked, it just seemed like a great opportunity to work with a set of lawyers committed to taking on David vs. Goliath battles, while at the same time staying within the comfort and support of my existing firm. Now, 13 years later, I can’t imagine not running a practice or assisting in firm management.
LD: You did both your undergrad and law school at the University of Iowa. Did you grow up in the area? Were you ever tempted to move out of the Midwest and take a position in one of the coastal cities?
TS: I grew up in a small farming community in West Central Illinois. My parents eloped when they were 18 and just out of high school. My father worked in a gas station repairing tires and they struggled greatly. By the time they were in their early thirties, they had managed to save enough money to buy a tire store across the Mississippi River in Iowa. It was truly a family-run business, with my earliest memories being as a 6-year old sitting on a bar stool making change from the cash register for customers. I worked at the store every Saturday and every summer for nearly my entire childhood, alongside my mother, father and brother.
My parents’ hard work allowed me to attend undergrad and law school about 90 miles away, at the University of Iowa. I was the first person in my immediate family to graduate college. Going to law school in Iowa meant that you most likely were bound to leave the state, as the legal community there is quite small. University of Iowa is a great recruiting ground for firms from around the country, but I focused on the Midwest. Chicago seemed a bit daunting for a small-town kid, whereas Minneapolis seemed more comfortable while also cosmopolitan. I clerked for Robins Kaplan in 1991 and have been here ever since. Even though we do not have extended family in Minnesota, it really feels like home. The fact that Robins Kaplan represents everyone from individuals all the way to some of America’s largest corporations brings a unique perspective and flavor to the firm that I have never felt I wanted to leave. Plus, the firm has given me a platform to prosecute cases all over the country, so I have never felt regionalized in any sense.
LD: What did you expect to do with your law degree when you entered law school?
TS: I didn’t know what kind of lawyer I particularly wanted to be when I went to law school. I knew that I wanted to go into private practice at a firm with a national reputation, which handled complex litigation and was full of accomplished lawyers that could teach me how to become an effective advocate. I was fortunate enough to be extended an offer from Robins Kaplan, which was full of high-stakes, sophisticated trial lawyers with a diverse practice that provided plenty of opportunity for me to grow and explore. I have been fortunate to make myself over several times, before finding my home as a mass tort lawyer.
LD: Can you discuss the community activities you are involved with – how you became interested in these organizations and or what you find meaningful from your work with them?
TS: I served on the Board of Governors of the Minneapolis Children’s Theatre (CTC) for seven years, just ending my service a few months ago. As an audience member for many years, I was struck by how our wonderful theatre – the only children’s theatre company to have ever received a Tony award – was so effective at capturing the imagination and delight of my children. As a board member, I learned just how far the impact of theatre and the fine arts can extend. Theatre can be a powerful voice to illuminate injustice, create bonds, share common experiences and, ultimately, build bridges and empathy. For example, historically, many have been excluded from participating in the theatre due to implications of racism, discrimination bias and classism. The cost of tickets, accessibility for those with disabilities, and a lack of welcome and invitation to communities of color have created further barriers. As a board member I had the opportunity to work with other committed members of our Twin Cities business and professional community to mitigate barriers to all underserved populations. I also got the chance to spend time with some wonderful creative artists and actors, who know about telling an effective story in a compelling, engaging way. It helps to step outside our “law” bubble and look at life, family, work in a fresh way. For me, CTC provides that experience.