Sean Burke, Partner at Duane Morris, fills us in on the challenges of multidistrict litigation, the advantages of social media evidence, and new medical device technology.
Sean Burke, a partner at Duane Morris LLP, currently represents companies nationwide in complex products liability cases, particularly those involving medical implant devices. He’s tried juries in state and federal courts and manages an intense docket of multidistrict litigation claims. But that’s not all: he also represents business clients in trade secret litigation and commercial disputes and represents clients in the gaming industry, specifically in horse racing. We recently had the opportunity to sit down with Sean and talk about the challenges and rewards of his multifaceted work.
HOW DID YOU GET STARTED WITH DUANE MORRIS AND WITH SUCH A WIDE VARIETY OF LITIGATION TYPES?
Duane Morris was always my top choice for where I wanted to work, starting when I was in law school. I interviewed with them on campus for a second-year summer position and was lucky enough to be brought on. I already knew someone who worked there and had been really impressed with the firm, so it was a no-brainer.
And they’ve given me such a wide range of experiences, starting with the opportunity to step away for a year and complete a clerkship with the Honorable Joel H. Slomsky of the U.S. District Court for the Eastern District of Pennsylvania. As you’d expect, the clerkship was phenomenally helpful in terms of improving my writing and research abilities, but it was so much more than that. Being a young attorney, it was a great opportunity to see the courtroom in action and to learn from the successes and mistakes of counsel. Plus I learned so much from Judge Slomsky, not only about the law but also about business development. He’s a self-made man who’s just an incredible example of the type of professional I aspire to be.
Shortly after my clerkship, I was given the opportunity to complete a secondment with a document services company, doing non-compete and commercial work. It was, in a sense, the best of both worlds: I operated essentially as in-house counsel, but I was still employed by Duane Morris. The secondment is a regular position at Duane Morris, so when I came back, someone else took my place there. That meant that I took over part of that attorney’s case load, which included a few medical device cases. Then those four cases turned into more than a thousand cases, and now it’s become my primary focus!
As far as my experience with gaming law and the horse racing industry, that’s a hobby practice—I grew up in the racing business since my family owned a few horses, so it’s a fun diversion and a bit of a return to my roots. Again, I’m fortunate that I’ve had such diverse experiences and have been able to learn about so many different areas of law—it keeps me on my toes.
IT SOUNDS LIKE YOU DIDN’T HAVE ANY MEDICAL BACKGROUND BEFORE STARTING THIS WORK ON IMPLANT DEVICES OR ANY BACKGROUND IN MASS LITIGATION. WHAT’S IT LIKE WORKING IN THAT SPECIFIC NICHE, AND HOW DID YOU GET YOURSELF UP TO SPEED?
No, you’re right. I now do mainly defense work for medical device companies, dealing with really cutting-edge surgical products, but I didn’t come in with any medical training or knowledge. It was a tremendous learning curve! But I picked it up by working through it; I was blessed with a great support system here, and my colleagues with more experience helped me navigate the hurdles. Our experts, in particular, taught me so much. We rely on a diverse group of experts and consultants, depending on the needs of each case and the different locations we may be in, and they’re such a helpful resource.
One of the best things about working in this field, in my opinion of course, is that there is no such thing as a typical day, a typical case, or even a typical approach to a case. We’re always dealing with different devices, individual plaintiffs with unique medical issues, and varying questions of causation. There’s a novel issue to deal with every day. Plus, managing this sheer number of cases, working with experts, coordinating fact discovery and depositions, traveling around the country, and trying cases—we’ve had three or more go to trial just in the last year—there’s never a dull day and never a sense that you’ve been there, done that. Every day I’m tackling some new challenge.
TELL US ABOUT SOME OF THOSE CHALLENGES. HOW IS MULTIDISTRICT LITIGATION (MDL) DIFFERENT FROM STANDARD LITIGATION?
There are a lot of differences—the approach to a case, the timing, the way you manage it. I suppose the individual theories and defenses you generate are often the same, but due to the volume of cases in an MDL the management is obviously quite different from a standard single case.
The volume of claims is a challenge. Some cases may only have 20 or 30 plaintiffs, but there are others where you have thousands of plaintiffs asserting thousands of unique, fact-specific claims. You get very little by way of discovery about any of those plaintiffs, and due to the numbers, it can be hard to do any meaningful or in-depth investigation, at least early on.
Then there’s this inherent conflict that we have to manage: the perception that just because a company faces hundreds of claims the product is per se defective. That is often not the case and some products subject to mass litigation have been effective. Even so, when the claims start piling up, you cannot cost-effectively try your way out of every case. You have to at least consider settlement, and that’s difficult. We have to manage those perceptions and keep the focus on an equitable outcome.
Figuring out which cases should be MDL bellwethers is another challenge. It helps to be able to narrow the field and pick a handful of representative targets, but you don’t always get to take a sophisticated approach to that selection process; sometimes it’s just a random selection. Plus, on the defense side, we get so little information about individual plaintiffs—generally just a basic fact sheet and some medical records—that it’s hard to accurately identify middle-of-the-road cases.
HAVE YOU BEEN ABLE TO FIND USEFUL INFORMATION ABOUT PLAINTIFFS ON SOCIAL MEDIA? ARE YOU ABLE TO INVESTIGATE INDIVIDUAL PLAINTIFFS THAT WAY, TO EXAMINE THE STRENGTH OF THEIR CASES OR THE EXTENT OF THEIR INJURIES?
Sometimes, absolutely, especially in standard litigation. But in the MDL setting, with thousands of plaintiffs, it’s often, as I mentioned, hard to do comprehensive background or social media searches. We’re primarily looking for information that would pertain to damages or causation; does this plaintiff really have the injuries they’ve claimed? Does their social media show them out skiing or doing physical things that they said they couldn’t do? Or is there evidence that they’ve been engaging in some vigorous activity that might have contributed to or entirely caused their injury? Those are great avenues to investigate.
But the truth is that we often have trouble just identifying the right plaintiffs. We might have to track people down by looking for the witnesses they’ve identified or try some other way to find the right plaintiff by a back-door method. The new ability, with Hanzo Investigator, to rapidly screen social media and identify potentially relevant posts would mean a much more proactive discovery process, which would be incredible.
When we do find information online, we’ve used Hanzo to preserve that evidence in a format that’s admissible and that’s going to be persuasive and useful in court. That’s the easy part for me; I just send an email or make a call, and Hanzo makes it happen. That way, no matter what happens to the online evidence later, we’ve got it preserved.
One quick example: we found a video online once that one of our plaintiffs had recorded. We requested the video in discovery, and what we received was 45 seconds shorter than the version that we’d found online, which of course we’d already asked Hanzo to preserve for us. The missing 45 seconds was not overly significant, but it led to a really interesting examination about what had been cut from the video and why. That kind of evidence allowed us to evaluate the plaintiff when outside his comfort zone. The tone of the deposition changed thereafter as you could see the witness’ wheels turning as they’re trying to figure out what else you know.
WHAT’S NEXT IN YOUR WORK—ANY EXCITING NEW TECHNOLOGY ON THE HORIZON?
I am particularly interested in the development of 3D printing of surgical instruments and medical devices. 3D printed medical devices are already being sold in the U.S. and we are getting closer to seeing point-of-care printing—printing on-site at hospitals of patient-customized components. I just wrote an article about some of the questions it raises for products liability law. There are still a lot of questions to be answered and regulations and standards to be developed, but it’s a fascinating frontier.
