Phil Goldberg has more than 25 years of experience on liability-related public policy, public affairs and public relations issues. Since joining Shook in 2003, Phil has assisted clients in addressing important litigation issues outside of the trial courts, often in front of Congress, state legislatures, appellate courts and the media. As part of this work, he counsels Fortune 500 companies and their trade associations on a wide variety of liability public policy issues.
Phil focuses his practice on three areas:
- Development of the Common Law,
- Federal and State Legislation,
- Litigation Communications.
As co-chair of Shook’s Public Policy Practice Group, Phil has filed amicus briefs with courts at every level, from the U.S. Supreme Court to the U.S. Courts of Appeals and state appellate courts. He also has testified before state legislatures, authored legal scholarship, and spoken at judicial and attorney conferences on some of the highest-profile liability issues in the last decade. He also has become a resource for reporters who write on liability issues. In 2015, he was named the director of the Progressive Policy Institute’s Center for Civil Justice, which provides a center-left voice on important civil justice issues.
The substantive issues Phil works on tend to impact repetitive or high-profile cases, and often involve unwise expansions of liability based on novel tort and product liability theories, as well as procedural gamesmanship. In particular, he has worked extensively on unwise expansions of public attorney general and locality litigation, public nuisance theory, pharmaceutical and medical device liability, auto manufacturer liability, novel applications of the False Claims Act, international biotechnology liability, climate change tort litigation, liability in asbestos and other toxic tort cases, and damages in animal injury claims.
With respect to government litigation and public nuisance theory, Phil has become a leading voice for maintaining the traditional boundaries of the tort and not allowing it to become a catch-all theory of liability. He has authored several articles explaining that public nuisance does not, for example, circumvent product liability law. He also authored amici briefs submitted to the U.S. Supreme Court in the 2011 climate change case Connecticut v. AEP and the Supreme Court of Rhode Island in Rhode Island v. Lead Industries Association. The Supreme Courts of Rhode Island and New Jersey cited Phil’s articles in denying overly expansive public nuisance theories.
Phil has also been involved in cutting edge medical liability theories in pharmaceutical, medical device and physician litigation. His article on innovator liability has been cited by the U.S. Court of Appeal for the Sixth Circuit and the Supreme Court of Iowa to reject liability for branded medicine manufacturers when the harms were allegedly caused only by generic counterparts. He also has participated in congressional and judicial briefings against innovator liability. Phil works with trade associations, including the National Association of Manufacturers, AdvaMed and the American Medical Association, to oppose similar unwise expansions of medical liability in their fields of law.
Through this work, Phil has developed a strength for communicating complex business legal issues in ways that resonate with lay audiences. He handles “Fast Track” recalls for clients who manufacture consumer products and focuses on policies affecting public access to information in high-profile litigation, including media shield laws and attorney-client privilege with public relations firms. He also counsels companies on external and internal communications strategies in high-profile litigation.
Phil is a member of the American Law Institute, which publishes the Restatements of the Law for torts, product liability and other areas of law related to his practice. He has received Shook's Mosaic Award for his commitment to diversity in the legal profession and is Managing Partner for Shook’s Washington, D.C., office.
Before joining Shook, Phil spent eight years as an aide to three Democratic members of Congress and three years as a vice president of litigation communications for two leading public relations firms. He received his law degree from George Washington University Law School, where he was Order of the Coif, and his bachelor of arts, cum laude, from Tufts University. He resides in Bethesda, Maryland, with his wife, three kids and their fun and energetic dog, Riley.
Government and Public Nuisance Product Litigation
- The Case Before the Supreme Court This Month That Is Dividing Progressives, The Hill, September 21, 2018.
- Conagra Grocery Products Company, et al., Petitioners v. The People of the State of California, The Sherwin-Williams Company Petitioner, v. The People of the State of California (filed U.S. 2018) (brief for amici National Association of Manufacturers, NFIB Small Business Legal Center, Coalition for Litigation Justice, Inc., and Plastic Pipe and Fittings Association, explaining that the expansive public nuisance liability theory adopted by California’s lower courts violates the constitutional rights of petitioners)
- City of Pomona v. SQM North America Corporation (filed 9th Cir. 2018) (brief for amici Chamber of Commerce of the United States of America, National Association of Manufacturers, the Fertilizer Institute, CropLife America, American Coatings Association, International Association of Defense Counsel and Coalition for Litigation Justice, Inc., explaining that applying modern scientific knowledge to products of a previous era would create unprincipled, unforeseeable liability)
- California’s Lead Paint Litigation: Access to Justice or Just Access?,Presentation to Federal Environment and Toxic Tort Annual Law Conference, October 9, 2014.
- Are Public Nuisance Actions a Wise Way to Improve Access to Justice?,Presentation to Law & Economics Center, George Mason University School of Law & The Alliance of California Judges, March 17, 2014.
- Paulsen v. Monsanto Chemical Co.(filed Mont. 2010) (special counsel to the defendant for rebutting claims sounding in public nuisance theory).
- Can Governments Impose a New Tort Duty to Prevent External Risks? The “No-Fault” Theories Behind Today’s High-Stakes Government Recoupment Suits, 44 Wake Forest L. Rev. 923 (2009) (with Victor E. Schwartz & Christopher E. Appel).
- Rhode Island v. Lead Indus. Assn, Inc. (filed R.I. 2008) (amici brief for the Chamber of Commerce of the United States of America, American Tort Reform Association, Pharmaceutical Research and Manufacturers of America, Coalition for Litigation Justice, Inc., National Association of Manufacturers, and the American Insurance Association against use of public nuisance to subsume product litigation.)
- City of St. Louis v. Benjamin Moore (filed Mo. 2007) (amici brief for the Chamber of Commerce of the United States of America and American Tort Reform Association against use of public nuisance to subsume product litigation.)
- The Law of Public Nuisance: Maintaining Rational Boundaries on a Rational Tort, 45 Washburn L.J. 541 (2006) (with Victor E. Schwartz).
Climate Change Litigation
- Suing Energy Producers for Creating Global Warming Won't Help, San Francisco Chronicle, May 22, 2019.
- The Supreme Court's Next Climate Change Case?, RealClear Policy, October 25, 2018.
- Judge's Climate Change Science Day Misses the Point, Progressive Policy Institute, March 23, 2018.
- Climate Change Lawsuits Are Ineffective Political Stunts, The Hill, March 1, 2018.
- Climate Change, Sustainable Development, and Ecosystems Committee Newsletter, ABA Section of Environment, Energy, and Resources, Vol. 21, No. 1, February, 2018.
- GenOn v. Bell (filed U.S. 2014) (amicus brief for the American Tort Reform Association in support of cert. petition on preemption of state tort suits over regulated emissions)
- Utility Air Group v. EPA (filed U.S. 2013) (amicus brief for Peabody Energy explaining the reasons why EPA exceeded its regulatory authority in issuing its GHG regulations)
- Comer v. Murphy Oil U.S.A., et al.(filed Fifth Cir. 2012) (amici brief for the National Association of Manufacturers, National Federation of Independent Business Small Business Legal Center, and the American Tort Reform Association against restricting CO2 emissions through tort litigation)
- Does the Judiciary Have the Tools for Regulating Greenhouse Gas Emissions?, 46 Val. U. L. Rev. 369 (2012) (with Victor E. Schwartz & Christopher E. Appel) (explaining why the judiciary should not regulate emissions through tort allegations over climate change).
- The Use of Civil Litigation as a Tool for Regulating Climate Change, Presentation to Valparaiso University School of Law, February 18, 2011.
- Why Progressives Should Cool to “Global Warming” Lawsuits, Progressive Pol’y Inst., Nov. 2010.
- AEP v. Connecticut(filed U.S. 2010) (amici brief for the National Federation of Independent Business Small Business Legal Center, American Petroleum Institute, and American Tort Reform Association against restricting CO2 emissions through tort litigation)
- Native Village of Kivalina, et al. v. ExxonMobil Corp., et al. (filed Ninth Cir. 2010) (amici brief for the National Association of Manufacturers, National Federation of Independent Business Small Business Legal Center, and the American Tort Reform Association against restricting CO2 emissions through tort litigation)
Pharmaceutical, Device and Physician Liability
- Burningham v. Wright Med. Grp., Inc. (filed UT 2018) (for amici Advanced Medical Technology Association, American Tort Reform Association, BioUtah, Chamber of Commerce of the United States of America, National Association of Manufacturers, and Pharmaceutical Research and Manufacturers of America, urging the Court to categorically adopt the unavoidably unsafe exception to strict product liability for medical devices for products that have gone through either the 510(k) clearance or past approval process)
- Rolando P. Ruiz vs. Tenet Hialeah Healthsystem, Inc. (filed FL 2018) (amici brief for the American Medical Association and the Florida Medical Association on causation standards in medical negligence cases)
- Chance, Patricia vs. Leroy C. Bell, Jr., M.D. and Bon Secours Hospital Baltimore, Inc. (filed MD 2017) (amici brief for the American Medical Association and The Maryland State Medical Society on determining scope of the statutory immunity to physicians for decisions on whether to involuntarily commit someone to a mental health facility)
- Brugaletta, Jannelle vs. Chilton Memorial Hospital, et al. (filed NJ 2017) (amicus brief for the American Medical Association and the Medical Society of New Jersey on the need for New Jersey's post-incident assessment privilege to be absolute)
- Ending the Myth That Branded Drug Companies Cannot Benefit from Preemption; The Sixth Circuit Properly Holds That the Doctrine Bars a Design Claim, L.J. Newsletters Prod. Liab. L. & Strategy (Mar. 2016) (with Victor E. Schwartz).
- Iowa High Court Exposes Pharma “Innovator Liability” for What It Is: Deep-Pocket Jurisprudence, 23:11 Legal Opinion Letter (Wash. Legal Found. Sept. 12, 2014) (with Victor E. Schwartz).
- Warning: Shifting Liability to Manufacturers of Brand-Name Medicines When the Harm was Allegedly Caused by Generic Drugs has Severe Side Effects, 80 Fordham L. Rev. 1835 (2013) (with Victor E. Schwartz & Cary Silverman).
- How Litigators Tried to Sneak a Pet Earmark into Health Reform, Progressive Fix (Progressive Pol’y Inst. Nov. 23, 2009) (addressing efforts to reform Medicare Secondary Payer to allow mass statistical claims directly against alleged tortfeasor).
- Kudos to Congress for Saying “No” to Renewed Attempts to Turn MSP into New Vehicle for Litigation Abuse, Medicare Report (BNA) (July 24, 2009).
- CMS Should Stop Health Plans from Displacing Doctors’ Judgment on Prescription Medicines, 18:6 Legal Opinion Letter (Wash. Legal Found. Mar. 27, 2009) (with Victor E. Schwartz & Markus Green).
- Conte v. Wyeth (filed Cal. 2009) (amicus brief for the Chamber of Commerce of the United States of America against competitor liability where a branded drug manufacturer is subject to liability for harms caused solely by a generic version of the drug made by another company)
- A Prescription for Drug Liability and Regulation, 58 Okla. L. Rev. 135 (2005) (discussing rationale for drug liability under the Restatement of Law: Third).
- Nabors v. Romero (filed Tex. 2014) (amicus brief for the Alliance of Automobile Manufacturers and the U.S. Chamber Litigation Center on allowing the admissibility of evidence that a plaintiff was not using an available seat belt when relevant to his or her injuries).
- Hyundai v. Duncan (filed Va. 2014) (amici brief for the Alliance of Automobile Manufacturers and the Association of Global Automakers on proper standards of liability for prophylactic safety devices).
- State Farm v. Davis (filed Del. 2013) (amici brief for the Property Casualty Insurers Association of America and the National Association of Mutual Insurance Companies on payouts under the Personal Injury Protection plans).
- Nissan Motor Co., Ltd. v. Maddox, (filed Ky. 2014) (amici brief for the Association of Global Automakers, American Tort Reform Association, and NFIB Small Business Legal Center arguing that punitive damages should not be permitted when a product adhered to government and industry standards).
Animal Law, Damages for Animal Injuries & Legal Status of Animals
- Non-Economic Damages for Animal Loss: Assessing the Legalities, Realities as Well as Economic Consequences of Such Awards for the Animal Health Industry, Panel presentation at ACI's Second Annual Legal Regulatory and Compliance Forum on Animal Health, Veterinary Drugs, Therapeutics, and Animal Food, September 14, 2016.
- Awarding emotional damages no way to love our pets, The Daily Record (January 22, 2015).
- Damages in Cases Involving Animals, Presentation to Fifth Annual Maryland State Bar Association Animal Law Symposium, April 10, 2014.
- How Much is That Doggie Worth in the Courtroom? Why Giving Owners More in Liability Is Not the Pro-Pet Position, Presentation to California Annual Animal Law Symposium, Golden Gate University, March 2, 2013.
- Courts and Legislatures Have Kept the Proper Leash on Pet Injury Lawsuits: Why Rejecting Emotion-Based Damages Promotes the Rule of Law, Modern Value, and Animal Welfare, 6 Stan. J. of Animal L. & Pol’y 30 (2013).
- The Future of Animal Ownership and Damages in Animal Injury Lawsuits, Presentation to National Animal Interest Alliance Annual Conference, Nov. 11, 2012.
- Barking Up the Wrong Tree, New Jersey Law Journal, 209 N.J.L.J. 951 (Sept. 17, 2012)(explaining why attempts to introduce animal harm damages in pet litigation will harm, not help, pets).
- Strickland v. Medlen (filed Tex. 2012) (amici brief for the Texas Municipal League, Texas City Attorneys Association, and the City of Arlington, Texas, on the proper measure of damages in animal injury cases).
- McMahon v. Craig, et al. (filed Cal. Ct. App. 2009) (amici brief for the California Veterinary Medical Association, Animal Health Institute, American Animal Hospital Association, American Kennel Club, Cat Fanciers’ Association, American Pet Products Association, American Veterinary Medical Association, and the Pet Industry Joint Advisory Council on the proper measure of damages in animal injury cases).
- Goodby v. Vetpharm, Inc. (filed Vt. 2008) (amici brief for the Vermont Federation of Dog Clubs, Animal Health Institute, American Kennel Club, and the Pet Industry Joint Advisory Council on the proper measure of damages in animal injury cases).
- Sherman v. Kissinger (filed Wash. 2008) (amici brief for the Animal Health Institute, American Kennel Club, and the Pet Industry Joint Advisory Council on the proper measure of damages in animal injury cases).
Asbestos and Other Toxic Tort Litigation
- Stop New York Asbestos Lawyers From Gaming the System, Law360, February 26, 2020.
- Asbestos Litigation Reform That Helps Victims and Businesses, Forbes (August 10, 2017).
- Asbestos Litigation Reform Momentum Builds in U.S., Financier Worldwide 52 (Mar. 2016) (with Mark Behrens).
- Lessons Learned from the Front Lines: A Trial Court Checklist for Promoting Order and Sound Public Policy in Asbestos Litigation, 16 Brook. J.L. & Pol’y 589 (2008) (with Victor E. Schwartz & David C. Landin).
- Involving Asbestos and Silica Claims By Individuals Who Have No Impairment: Hearing on H.B. 1783 Before the H. Labor Relations Comm., (Pa. July 25, 2006) (testimony of Phil Goldberg).
- A Letter to the Nation’s Trial Judges: Serious Asbestos Cases – How to Protect Cancer Claimants and Wisely Manage Assets, 30 Am. J. of Trial Advoc. 295 (2006) (with Victor E. Schwartz & Paul W. Kalish).
- Asbestos Litigation: Momentum Builds for State-Based Medical Criteria Solutions to Address Filings by the Non-Sick, 20:6 Mealey’s Litig. Rep.: Asbestos 33 (Apr. 13, 2005) (with Mark A. Behrens).
- Defining the Edge of Tort Law in Asbestos Bankruptcies: Addressing Claims Filed by the Non-Sick, 14:1 J. Bankr. L. & Prac. 61 (2005) (with Victor E. Schwartz & Mark A. Behrens).
- Asbestos X-rays: Study Points To Abuse, Nat’l L.J., Nov. 1, 2004, at 19 (with Mark A. Behrens).
Genetically Modified Seed & Food Liability (International)
- The Industry’s Compact and its implications for the Supplementary Protocol, in International Liability Regime for Biodiversity Damage 218 (Akiho Shibata ed., Routledge 2014).
- The New Food Court: Labeling Litigation, Genetically Modified Foods and the Legal Debate Over Modern Food Production, Presentation to Kansas City Agribusiness Council, Jan. 17, 2013.
- How to Integrate the “Compact” with the Supplementary Protocol on Liability & Redress, Presentation to African Regional Workshop on the Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety (“N-KL”), July 21-22, 2011, Addis Ababa, Ethiopia.
- Introduction to the “Compact”: An Option for States in the Event of Damage to Biological Diversity, Presentation to Asia Regional Workshop on the Cartagena Protocol on Biosafety, September 7-8, 2010, Hanoi, Vietnam.
- The “Compact”: Dialogues with States on Liability & Redress Principles for LMO Seeds, Presentation Nov. 17-18, 2009, Brussels, Belgium. and June 18-19, 2009, San Jose, Costa Rica.
- Closing the Food Court: Why Legislative Action is Needed to Curb Obesity Lawsuits, 8:8 Briefly (Nat'l Legal Center for the Pub. Int. Aug. 2004).
Advocacy on Proper Development of Liability Law
- Vigilante Regulation: When Anti-Pipeline Activism Becomes Tortious Interference Activists (report for the Grow America's Infrastructure Now coalition), March 2019 (with James Thompson and Dalton Mott).
- Shear v. Maz Partners, LP, on behalf of itself and all others similarly situated (filed U.S. 2018) (amicus brief for the National Association for Behavioral Healthcare, urging the Court to grant certiorari to curtail awards to uninjured plaintiffs and provide guidance to lower courts acting in equity to ground liability in sound legal principles based on Seventh Amendment concerns).
- Deep Pocket Jurisprudence: Where Tort Law Should Draw the Line, 70 Okla. L. Rev. 359 (2017) (Victor E. Schwartz & Christopher E. Appel).
- Torts of the Future: Addressing the Liability and Regulatory Implications of Emerging Technologies, (U.S. Chamber Inst. for Legal Reform, March 2017) (with Cary Silverman and Jonathan L. Wilson).
- Tyson Foods, Inc. v. Bouaphakeo (filed U.S. 2015) (amici brief for the National Association of Manufacturers, Alliance of Automobile Manufacturers, Association of Home Appliance Manufacturers, American Tort Reform Association, American Petroleum Institute and the Metals Service Center Institute explaining why class actions should not be certified when they include any uninjured class members).
- Neutral Principles of Stare Decisis in Tort Law, 58 S.C. L. Rev. 317 (2006) (with Victor E. Schwartz & Cary Silverman).
- Extending the Privilege to Litigation Communications Specialists in the Age of Trial by Media, 13:1 J. Comm. L. & Pol’y 7 (2004) (Victor E. Schwartz & Steven B. Hantler).
False Claims Act Abuse
- Universal Health Services, Inc. v. United States (filed U.S. 2016) (amici brief for the American Medical Association, National Association of Chain Drug Stores, National Association of Manufacturers, American Tort Reform Association, and NFIB Small Business Legal Center explaining that the False Claims Act does not give qui tam plaintiffs the authority to leverage the Act’s harsh penal structure to pursue minor regulatory violations when the government has not been defrauded).
- How False Claims Act Abuse Can Lead to Highway Robbery, Law360 (Dec. 17, 2015) (with Victor E. Schwartz).
- Carrots and Sticks: Placing Rewards as Well as Punishment in Regulatory and Tort Law, 51 Harv. J. on Leg. 315 (2014) (discussing recent types of False Claims Act litigation abuse and potential reforms) (with Victor E. Schwartz).
"Patent Troll" Litigation
- Patent Troll Reform, Presentation to American Legislative Exchange Council Annual Meeting, December 6, 2013 and May 2, 2014.
- Stumping Patent Trolls on the Bridge to Innovation, Presentation to Rochester Intellectual Property Law Association, Nov. 8, 2013.
- The Wild West of Legal Reform: From Patent Trolls to Attorney General Litigation, Presentation to Retail Industry Leaders Association Annual Law Conference, Oct. 17, 2013.
- Stumping Patent Trolls on the Bridge to Innovation, Progressive Pol’y Inst. Policy Brief, Oct. 2013.
- The U.S. Supreme Court's Personal Jurisdiction Paradigm Shift to End Litigation Tourism, 14 Duke J. Const. L. & Pub. Pol'y 51 (2019) (with Christopher E. Appel and Victor E. Schwartz)
- Goodyear Tire & Rubber Co. v. Haeger (filed U.S. 2017) (amicus brief filed for the National Association of Manufacturers urging the Court to rule that discovery sanctions must be causally tied to the alleged misconduct)
- The U.S. Supreme Court Reins In Discovery Sanctions, IADC Committee Newsletter - Appellate Practice, September 2017 (with Kathryn Constance).
- Science, not politics, should drive California regs on BPA, The Sacramento Bee (June 18, 2015).
Federal & State Legislation
- Calif. Lawmakers Should Stay Out of USC Sex Abuse Case, Law360, May 7, 2019.
- Forcing More Litigation Isn't the Answer to Litigation Abuse, Washington Examiner, July 30, 2019.
- DRD Pool Servs., Inc. v. Freed (filed Md. 2010) (amici brief for the Maryland Chamber of Commerce, Chamber of Commerce of the United States of America, American Tort Reform Association, NFIB Small Business Legal Center, Maryland Motor Truck Association, American Trucking Associations, American Chemistry Council, Property Casualty Insurers Association of America, National Association of Mutual Insurance Companies, and the American Insurance Association arguing for the constitutionality of noneconomic damages cap).
- Total Immunity Without Accountability: Why the Proposed Federal Media Shield Bill is Out of Balance with America’s Laws and Values, 10:5 Briefly (Nat'l Legal Center for the Pub. Int. May 2006) (with Victor E. Schwartz).