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New Book: Mike Burg’s 40-Year Trial by Fire

Trial By Fire by Mark Burg Book Cover featuring scales of justice with a cloud of smoke covering them

A good sense of humor has been the lucky charm for Attorney Mike Burg in a career that started from the hardscrabble neighborhoods of Chicago, to the red carpet galas of Hollywood, through courtrooms across the country, and into the Trial Lawyer Hall of Fame this year.

Burg highlights the effectiveness of humor -- combined with a fierce determination to champion every case he takes on -- in his new autobiography, Trial By Fire, One Man’s Battle of End Corporate Greed and Save Lives. Based in Denver, he has won numerous verdicts for his clients with more than 20 in excess of $1 million.

Who's nervous?

“Having a sense of humor is part of the joy of life,” he said in an interview about his 40-year career as a lawyer for the underdog. “The road is hard, but the journey is joyous.”

The book recounts a case involving a 2004 gas explosion in a building across the street from the courthouse in Steamboat Springs. So many people were involved that the trial was moved to a makeshift facility in a vacant airport.

“How many of you are nervous?” he asked the potential jurors. They all raised their hands.

“I’m really nervous too. This is my first trial...” he said, as the jurors’ eyes widened. He waited two beats and said, “...in an airport.” He was immediately able to build rapport.

At another trial he asked the jury panel, “How many of you hate lawyers?” It sounds like a risky opening, until Burg added, “If you do hate us, can you at least hate us equally?”

Burg honed his skills early in his career, even working nights in standup comedy where he saw Roseanne Barr get her start.

In the book, readers can applaud him as he recovers $6.4 million in the explosion case. You can root for him as he fights for eight years against UBS for knowingly selling risky mortgages to investors. Readers can cheer him on as he leads hundreds of plaintiffs against companies shilling dangerous drugs like Fen-Phen, Yaz, Zyprexa and Pradaxa.

Lawyers will delight as Burg skewers a corrupt executive from Ortho Evra in a deposition. A doctor with a gold-plated resume, he was a director of the birth control patch company who launched his career by faking drug research. For the story, read the book excerpt The Unmasking of Dr. Andrew Friedman.

Mass Torts and the Election

In the book, Burg describes how he got involved in mass torts early, when he connected in 1999 with lawyers from Wyoming, which turned out to be a hotbed of Fen-Phen cases. Many women there had taken the diet drug that caused severe heart valve problems and death. By the following year he had settled more than 450 cases.

Mike Burg is the founding shareholder of Burg Simpson in Denver.

Today he’s involved in 3 mass torts:

  • Low testosterone replacement. “Unfortunately, this treatment has become a mass tort case. The manufacturers tried to sell testosterone to anyone over 40, when in reality it doesn’t help with sexuality. As your body gets older, your body produces less testosterone naturally. Later in life, testosterone increases risk of heart attack and stroke. It’s a crazy deal,” he says.
  • Depakote. Abbott Laboratories sold the drug to treat seizures and migraines, but some women who took it while pregnant had babies born with severe birth defects. The company paid $1.6 billion to settle federal charges that it promoted off-label uses of the drug and for paying kickbacks to prescribers to drive sales. Plaintiffs have filed 800 cases in the U.S. District Court for the Southern District of Illinois.
  • Talcum powder. Jurors in St. Louis hit Johnson & Johnson with $55 million and $72 million verdicts in two trials charging that the company knew that its talc-based Baby Powder and Shower to Shower Powder causes ovarian cancer. “We are gathering an inventory of these cases,” he said.

Burg sees four threats to consumers as big pharmaceutical companies market defective medical devices and drugs to an unwitting public. “We need good drug companies that are interested in helping the public,” he says, “as opposed to making a billion-dollar profit.”

  • Undue influence. “Drug companies have too much influence over the FDA and Congress,” he says. “Unfortunately, the way that elections work after the Citizens United ruling, corporations have unlimited funding. There are multi-billion dollar companies that can finance a political campaign. This is the biggest problem.”
  • Revolving door. “People go from pharmaceutical companies to the FDA, and from the FDA to the pharma companies. This is a bad recipe,” Burg says. “Many times people will leave the drug companies and be their messenger to the FDA. The FDA does not have enough resources, so they have to rely on the company submissions, the new drug applications and data about adverse events, which is under-reported.”
  • Immunity for generics. “You cannot sue generic drug makers after the Mensing decision,” he said, referring to Pliva, Inc. v. Mensing, 131 S.Ct. 2567 (2011), where the US Supreme Court shielded generic drug manufacturers from state-law damages liability for design-defect claims. “Yet we have managed care that requires us to use generic drugs,” he said. “Quite frankly, they’re not the biological equivalent. They’re being made in India and China.”
  • Preemption. The US Supreme Court followed up in Mutual Pharmaceutical Co. v. Bartlett, 133 S. Ct. 2466, 2471 (2013) that federal law preempts a state-law design-defect claim against generic drug manufacturers. “This means we can get a recovery for a person who took the name brand drug, and we have a second person who took the generic version and have to say, ‘There’s nothing we can do for you.’ We cannot sue.”

“That’s why this election is so important. We have to get rid of Citizens United and immunity for generic drugs,” he said. “We’re looking forward to Hillary Clinton winning, and having judges that set an even playing field. We’re seeing a lot of mass torts being stripped away by judges, Dauberting out the experts and then throwing the cases out because there are no experts.

In the book, Burg regales readers with representing everyone from the Little Rascals to Ralph Tamm in the first NFL steroid case. Along the way he’s gone golfing with Michael Jordan, attended George W. Bush’s inauguration with the President’s father, and went to a Hollywood party where Nicole Kidman flirted with him.

“I’ve had a hell of a journey,” Burg says. “One of the messages of the book is, this is a journey. I talk to some lawyers who see law practice as drudgery. I’m like, you know what? We got a note from an elderly couple who thanked me, read my book, knowing I’m in the hall of fame, and wondered why I took their small auto accident rear end case. They read the book and they said, “You did it to help people.’ That makes me come to work every day. I’m not just interested in the big mass tort cases. I want to help the average person with a slip and fall case.”

Trial by Fire: One Man’s Battle to End Corporate Greed and Save Lives by attorney Mike Burg is available on Amazon.com.

 

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