James D. Herschlein is Co-Chair of the Complex Commercial Litigation Department and recently completed two terms as a member of the firm’s Executive Committee. Jim is a nationally known litigator who has represented some of the world’s largest organizations in a multitude of cases before judges, juries and arbitral or governmental bodies throughout the United States, focusing on product liability litigation and complex contractual disputes. Jim’s trial experience also includes cases involving securities, derivatives, intellectual property, real estate and bankruptcy claims.
Jim is nationally recognized as a leader in the field of Product Liability by numerous publications, including, most recently, Best Lawyers (2015), Legal 500 (2013) and Law360 (2012), in which he was listed as a Product Liability MVP. He was also recently named a “New York Local Litigation Star” by Benchmark Litigation (2016) for his product liability and commercial litigation experience. In September 2014, Jim’s representation of Boston Scientific Corporation in litigation involving late stent thrombosis was named an Impact Case of the Year: Product Liability by LMG Life Sciences.
Additionally, Jim serves as an integral member of both the firm’s Life Sciences Group and Product Liability Group. In 2014, the Life Sciences Group was recognized as practice group of the year by Law360. Similarly, the Product Liability Group was recognized in 2013 as Product Liability Practice Group of the Year by Law360 and was one of eight practice groups to be shortlisted for Product Liability Firm of the Year at the 2013 Chambers USA Awards for Excellence.
Jim has substantial experience representing manufacturers in product liability lawsuits in state and federal courts, including the trial of individual claims and the coordination of the nationwide defense and multidistrict litigation proceedings of hundreds of cases arising from the recall of medical devices, pharmaceutical products and consumer products, among others.
Representative Complex Commercial Litigation Matters
- Lead counsel for a German food-processing company concerning disputes arising from an asset purchase agreement.
- Represented 50 percent owners of a portfolio of 11 real property holding companies, valued at approximately a quarter-billion dollars, in a multi-forum dispute over the management and ownership of the properties, including corporate governance, injunction and corporate dissolution proceedings.
- Represented a major financial institution in lawsuits seeking recovery for breaches of several interest rate swap agreements.
- Represented a major investment bank in connection with multi-state litigation following a $100 million debt offering.
- Represented Lutron Electronics Co., Inc. in litigations in multiple US District Courts, and in the International Trade Commission, on claims that various defendants misappropriated trade secrets, and infringed patents, copyrights and trademarks, owned by Lutron.
- Represented sports equipment manufacturer Rawlings in two lawsuits arising from professional baseball. One case, involving a professional player who suffered a head injury after being struck by a pitch, was resolved without any finding of liability. The other matter was brought by a spectator at a New York Mets game when he was hit by a broken bat that flew into the stands. That case was dismissed without prejudice.
- Represented various clients in counseling, and potential litigation, regarding employee/partner non-compete and non-solicitation agreements.
- Represented the purchaser of a $2.5 billion health group in litigation regarding whether approximately $50 million in Value Added Tax receivables were included as assets in the Asset Purchase Agreement.
- Represented a manufacturer of medical films in litigation against its raw materials supplier over whether the materials complied with the specifications of the Supply Agreement and whether the manufacturer acted in good faith.
- Represented a manufacturer of a prescription drug product on claims for indemnification under the terms of a Manufacturing Agreement against the company responsible for packaging the product, following a packaging error that led to a major recall of the product.
- Represented George Steinbrenner in disputes with Major League Baseball.
- Represented Leona and Harry Helmsley in connection with partnership and real property ownership litigation, including a 50-plus day arbitration regarding the shareholder agreement for, and an option to purchase, Helmsley Spear, Inc.; and multiple New York state court litigations regarding partnership disputes.
- Represented contractors and subcontractors in disputes regarding construction projects.
Representative Product Liability Matters
National counsel to Lutron Electronics Co., Inc. on all product liability claims against any of the company’s many products. In December 2014, won a directed verdict in a products liability trial in Los Angeles County Superior Court concerning a widely used dimmer switch.
Lead counsel to Irving Oil, Canada’s largest refinery, in a suit brought by the State of Vermont seeking statewide remediation of groundwater.
National counsel to Boston Scientific Corporation in litigation involving coronary stents. Argued and won dismissal of several suits on federal preemption grounds, and served as lead counsel in coordinated proceedings in Massachusetts state court. (Named an Impact Case of the Year: Product Liability by LMG Life Sciences in 2014.)
Represented Novartis Consumer Health, Inc. in three jury trials in connection with plaintiffs who claimed injuries from cough/cold or diet products. Conducted all direct and cross-examinations of neurology and other scientific experts. Obtained two defense verdicts in New Jersey state courts and a hung jury in Arizona federal court.
National counsel to Pfizer in litigation regarding a prescription contraceptive injection. Obtained forum non conveniens dismissals of 98 percent of the cases in a coordinated proceeding, leading to a favorable global settlement.
National counsel to Pfizer in litigation involving a prescription antibiotic.
National counsel to Boston Scientific Corporation in litigation regarding a recalled urinary incontinence device. Was co-lead MDL counsel in proceedings involving approximately 750 cases; tried and obtained a jury verdict in favor of our client.
Memberships & Honors
- Association of the Bar of the City of New York: Vice President (2012–2013); Chair, Product Liability Committee (2011–2014); Secretary (2000–2003); Chair, Young Lawyers Committee (1991–1993); Member, Judiciary Committee (multiple terms since 1995)
- The Legal Aid Society, Board of Directors, Member (2012–Present)
- St. John’s Law Alumni Association, Board of Directors, Member (2010–Present)
- International Association of Defense Counsel, Member
- American Bar Foundation, Fellow
- American Bar Association, Member
- Federal Bar Council, Member
- Chaminade High School Alumni Lawyers Association, President (2005–2007)
- Thurgood Marshall Award (1998)
- Legal Aid Pro Bono Publico Award for Affirmative Litigation (2001)
- Named in New York Lawyer (January 2001) as one of the “Fifteen Lawyers 40 and Under Shaping the Law for the 21st Century”
Publications and Presentations
- Moderator and Panelist, “Getting to Yes, Practically and Ethically: Settlement Agreements in Product Liability Cases,” New York City Bar Association, April 24, 2014.
- “Can a Plaintiff Thread the Preemption Needle by Alleging Off-Label Promotion?” Med City News, August 12, 2013.
- Panelist: “The Key Steps to Managing Risks, Resources & Costs: What to Analyze When Considering Litigation” on NYLJ and Pangea3’s webinar, May 6, 2013.
- Presentation: “The Deposition of the Treating Physician: The Trial Lawyer’s Perspective on Taking Treating Physician Depositions” at DRI’s Drug and Medical Device Conference, May 11, 2012.
- Panelist: “The Art of Pleading in a Post-Twombley/Iqbal World: Parallel Claims and More” at ABA’s Current Issues in Pharmaceutical and Medical Device Litigation Seminar, November 17, 2011.
- Herschlein Speaks with Bloomberg BNA on Veteran Hiring Initiatives November 11, 2015
- Benchmark Litigation 2016 Recognizes Kaye Scholer for Antitrust, Intellectual Property and Product Liability Work Nationwide October 29, 2015
- Kaye Scholer Successfully Represents Majority Lenders in Defeating TRO for Arch Coal Debt Swap October 22, 2015