"Michael Clayton" and the Tao of Product Liability Defense

Inflatable penile implants started it all.

After nine years of working for a ginormous third-party claim administrator, I eagerly sought career advancement and change. Handling medical malpractice claims for a teaching hospital system in the Washington DC area gave me an intoxicating taste for liability claims against hospitals and healthcare providers. Plotting my escape from TPA Land, I interviewed for a Claims Manager job at a specialty "captive" insurer who wrote product liability coverage for medical device manufacturers. It needed help.

The captive’s fronting insurer had bungled claim files for years, contesting legit claims and paying spurious ones. Courthouse step surprises abounded. Defense firms complained about slow payments. Reserves oscillated like an EKG strip, with no rhyme or reason. Hence, this specialty carrier, a Bermuda captive, needed a full-time claim professional to right the ship. I was looking for a medmal claim position, but this job involved medical equipment and technology. Close enough!

Diving Into Mass Tort Product Liability – A Stiff Challenge

The biggest claim problem this specialty carrier had was — no joke — over 100 claims around the country with plaintiffs suing a manufacturer of inflatable penile prostheses. (This time frame was pre-Viagra.) I was offered the job and took it, which involved coordinating claims-handling and litigation defense with the product's manufacturer. I later joked privately that "The Pump" technology was better suited to Reebok basketball shoes than urological applications.

Penile implant mass torts were just the beginning. Over the next two-plus decades, I handled and managed mass tort claims involving breast implants, TMJ jaw implants, latex gloves, electro-surgical devices, hip implants, stents, and implantable mesh graphs. Class actions and mass tort cases became my bread and butter.

So, not surprisingly, I did a double-take when recently re-watching "Michael Clayton," a 2007 underrated film and one of my top-10 all-time favorites. If you haven't seen it, I encourage you to do so, whether you are in the insurance and claims business or not. It is an under-the-radar classic. My background in product liability claims quickly tuned me into this movie's narrative.

Cinematic Parallel

When I settled in to watch "Michael Clayton." I didn't know that the movie centers on a product liability case, a class action involving a weed killer and a mythical Nebraska-based company called U-North. 

Highlights of the plot that may interest claim folks:

·         (SPOILER ALERT) Bad corporate documents sink a defense (though how did these stay suppressed and secret for so long?)

·         During a plaintiff's deposition, the lead defense counsel strips down to his tidy whities, adding a new meaning to the term "legal briefs." Also, why did Tim Wilkinson play the lead defense counsel instead of, say, Charlize Theron?

·         A partner at Kenner, Bach & Ledeen dances a celebratory jig when the firm hits 30,000 billable hours in defending the weed killer. Yippee!

OK, it's Hollywood.   I get it. Nevertheless, if you work in product liability defense, you may get a hoot from "Michael Clayton."  Step into the shoes of a jaded "fixer" for a powerful Big Law firm as he navigates the murky waters of product liability and mass torts.

Legal Drama

George Clooney's masterful performance dramatizes high-octane product liability battles, where "smoking gun" documents can make or break a case. Explore the nuanced portrayal of the immense pressures, ethical crossroads, and the often-overlooked human element within the behemoth that is the legal industry. 

At the heart of managing mass tort product liability claims lies the pivotal role of critical documents. These are the foundations on which defendants craft legal strategies. Corporations win or lose cases based on whether documents are exonerating or incriminating. In "Michael Clayton," a newly disclosed memo reveals upper management's long-ago knowledge of the carcinogenic health dangers of U-North's herbicide. The memo's discovery shows how a single document can tip the scales and crater product liability defenses. 

Sink or Swim Through Discovery

Moreover, the "smoking gun" document takes center stage in the film, highlighting its critical nature in proving liability. When concealed or manipulated by corporations, these documents possess the power to expose negligence or deliberate wrongdoing. Uncovering such evidence becomes a plaintiff's relentless quest, as depicted by Clayton's dogged investigation to unearth the truth behind U-North's actions. The film underscores the high stakes in obtaining these documents and the lengths parties will go to in order to suppress or destroy them. It does not, however, explain how the discovery process and document production failed to unearth a damning memo after years of litigation.

Clayton finds himself part of a law firm complicit in defending corporate interests at any cost, including manipulating legal proceedings and exploiting loopholes. The film critiques the inherent conflict of interest within the legal system, where financial gain predominates over pursuing justice.

Hollywood Drama

Yet, while the film accurately portrays certain aspects of the legal landscape, it also tends to exaggerate and sensationalize certain elements. "Michael Clayton" portrays large corporations as nefarious entities willing to resort to covert operations to limit their legal liability exposure. While corporate malfeasance certainly exists, the movie's depiction overdramatizes the complexities of corporate behavior and legal proceedings.

Further, the film's cloak-and-dagger operations stray into the realm of fiction, painting an unrealistic picture of the legal world. While intrigue and drama are inherent in high-stakes litigation, the extent to which "Michael Clayton" portrays covert activities is sensationalistic.

"Michael Clayton" offers a compelling exploration of the challenges of managing mass tort product liability claims. It underscores the importance of crucial documents and pursuing "smoking gun" evidence while highlighting the suppression of harmful documents. We should view "Michael Clayton's" tendency to villainize large corporations and depict unrealistic cloak-and-dagger operations with a critical eye. While the movie dramatically portrays the legal arena, it is essential to separate fact from fiction when depicting mass tort litigation.