They’ve Got Next: Consumer Litigation Fresh Face Sierra Elizabeth

Sierra Elizabeth says her favorite part about litigation is that “it never gets boring.”

Her most recent noteworthy achievement has been serving as co-lead counsel with fellow Kirkland & Ellis partners Hariklia Karis and Leslie M. Smith on teams that won verdicts for 3M Co. in 2021 in two test trials in massive litigation over combat earplugs.

U.S. military service members and some civilians allege the company’s CAEv2 earplugs caused hearing loss and tinnitus.

Fewer than 700 cases were pending at the inception of the MDL, which has since grown to become the largest MDL in history. Now, more than 250,000 cases are pending in a multidistrict proceeding that was created in 2019 and assigned to Judge M. Casey Rodgers of the U.S. District Court for the Northern District of Florida.

So far, 11 bellwethers, or test cases, have been tried to verdict in the Northern District of Florida between April 2021 and January 2022.

Overall, 3M has prevailed in five cases involving five veterans, after juries rejected the service members’ claims that the earplugs were flawed and that the company misrepresented their safety. Plaintiffs have won verdicts totaling more than $160 million in six trials that involved nine veterans, which 3M is appealing.

Each bellwether trial is a key part of any multidistrict litigation. The trials are intended to let plaintiffs and defendants see how their cases play out in front of juries, and are often used to value the litigation for potential settlement purposes.

Elizabeth served as co-lead in the second and fifth trials. Getting the defense verdicts “was amazing because we put in so much hard work and it’s great to get that kind of result for the client,” she said.

It’s always important to have “fresh eyes” on a case, which is harder to do in a proceeding like the earplug trials because they involve the same product and the same general underlying facts, she said.

To counter that, “I try to run my themes or trial strategies by other attorneys that aren’t working on the case, as well as family members and friends, to get a fresh perspective of what a jury might be thinking,” she said.

In addition to the two 3M cases, Elizabeth was an integral part of the team that won a $30 million jury verdict in June 2021 for artificial intelligence messaging provider LivePerson Inc. in an action involving claims of trade secret misappropriation and unfair competition against the company’s former partner [24]7.ai. The trial, which began in May, is believed to be one of the first in-person civil jury trials in the Northern District of California since the start of the pandemic, she said.

In the three trials during the the Covid-19 pandemic, trial team members prepared virtually, trial testimony was presented over Zoom videoconferencing, trial exhibits were presented electronically, and masks were used in courtrooms.

“In the last two years, it’s been amazing to see the workarounds we have created so we can provide the best and highest quality service to our clients,” she said.

Elizabeth credits much of her career success to her mentor, Kirkland partner Mark C. Holscher, whom she met in 2007 when she was a summer associate after her first year at Duke University School of Law.

Holscher assisted Elizabeth with many aspects of professional development, including helping her navigate a Big Law environment and making connections with clients for her, she said.

“Sierra is a gifted trial lawyer because she relates so well to jurors. She is also a natural leader,” Holscher said. “I think her experience as an elite college track and basketball player also helped shape her ability to perform so well under pressure during trials.”

Elizabeth also likened trial work to her experiences as a Division I point guard and a sprinter, respectively for the University of Michigan basketball and track teams.

“That unpredictability is part of the joy of sports, having to perform that day, in that moment,” she said. “Trial work is the only thing that reminds me of my experience as an athlete. I put in the hours, I collaborate with my team, but I also never quite know what to expect when I walk into that courtroom. That’s what keeps it exciting.”