Pennsauken's Milstein helps Davids battle the Goliaths

Pennsauken's Milstein helps Davids battle the Goliaths

By MIKE DANIELS

Courier-Post Staff

PENNSAUKEN

Sunday, February 8, 2004

"Sometimes the needs of the one outweigh the needs of the many."

The line comes from Star Trek III: The Search for Spock. It was uttered by the immortal Admiral James T. Kirk (William Shatner). And it is in direct contrast to the Vulcan logic of Captain Spock (Leonard Nimoy), who in the previous Star Trek movie stated that the needs of the many outweigh the needs of the one.

Pennsauken lawyer Alan C. Milstein believes in Kirk's logic, not Spock's. Shatner's line, noteworthy among Star Trek fans like Milstein, sums up his legal career.

A man who most often battles insurance companies, research universities and pharmaceutical conglomerates, Milstein's latest dragon was the mighty National Football League.

As with so many others, Milstein slew this beast, too. On Thursday, Milstein's most famous client, Ohio State University running back Maurice Clarett, was cleared to play in the NFL this year by a federal judge in New York.

In a 71-page ruling handed down before the case even went to trial, U.S. District Judge Shira Scheindlin said it is unlawful for the NFL to bar players from entering the league until three years after their high school class has graduated. The NFL plans to appeal, but Milstein is certain the ruling will stand.

The NFL rule, which was modified in 1990 but dates to the 1920s, would have prevented Clarett from being drafted by an NFL team until 2005. Now, the 20-year-old running back who led Ohio State to a national title 13 months ago as a freshman, can be drafted in April.

Beyond that, the ruling will allow future high school football players or college freshmen and sophomores to jump to the NFL early, just as teenage basketball players do in entering the NBA draft.

Many football pundits have said the ruling hurts the league, the athletes who will enter the draft too early and fans who will have to watch an inferior product, all at the expense of one person, Clarett.

It all smacks of Kirk's line, although in this case, Milstein disagrees. "It will benefit athletes who come after him," he said. "Maurice understood he was taking a great risk by filing this lawsuit. If it means he's going to end up going lower in the draft, he accepts that position."

At first glance, Clarett might seem an odd client for an attorney with Milstein's specialties. He is not a sports agent and does not plan to become Clarett's agent.

But Milstein, 50, of the Pennsauken firm Sherman, Silverstein, Kohl, Rose and Podolsky, likes any case in which he can fight for the little guy. He tries to model himself after one of the all-time underdog, good-guy lawyers, the fictional Atticus Finch from To Kill a Mockingbird.

"I happen to be someone who believes the practice of law is a noble profession, that lawyers are a positive force of change in this country." Second career

It wasn't always Alan Milstein's dream to become a lawyer. A Bob Dylan and Lenny Bruce fan who grew up in Baltimore's Jewish neighborhoods and suburbs, Milstein graduated from the University of Maryland in 1975 and went on to the University of Kansas, where he earned a master's degree in American Studies.

At Kansas he taught classes on America in the 1950s and 1960s. Dylan, Jack Kerouac and Ken Kesey were among the artists Milstein lectured on. Later, Milstein worked as an art critic for the Philadelphia Bulletin until it went out of business in 1982.

After the Bulletin folded, Milstein decided that to raise a family, he'd need more than a reporter's salary. He went to Temple University Law School and graduated in 1983.

Since then he's almost always represented the Davids of the world in their courtroom battles with the Goliaths. Although he says money isn't the driving force behind which cases he takes, he has managed to make enough to comfortably support his wife and three children. They live in Lafayette Hill, Pa., and unlike some high-profile lawyers, Milstein spends most evenings and weekends with his family rather than at the office.

He doesn't believe that to be an honorable lawyer, one must be a poor lawyer. "I am fortunate to be able to take great cases for great causes and that as an unintended consequence, result in a pretty fair fee for me and my firm," he said. Suing Penn

One case that made Milstein plenty of money but also brought him great personal satisfaction was that of Jesse Gelsinger.

In 1999, Gelsinger, an 18-year-old from Tucson, Ariz., with a rare genetic liver disorder, volunteered to take part in a clinical study at the University of Pennsylvania. Researchers there were developing medicine designed to cure infants of the disease. Gelsinger knew the gene therapy treatment couldn't help him, but might help others in the future.

The experimental treatments began on Sept. 13, 1999. Four days later, Gelsinger was dead. In December 1999, Paul Gelsinger, Jesse's father, visited Milstein's firm. Although he was no expert in genetics or biomedical ethics, Milstein took the case. Within a month, Milstein had brokered a settlement with the university. While the amount must remain undisclosed, some legal experts have guessed it to be in the millions.

Since then, Milstein has taken a number of similar cases. He represents several families whose relatives died or saw their condition worsened after undergoing experimental skin cancer treatments at the University of Oklahoma. He has filed another lawsuit on behalf of clients who participated in clinical trials at a Seattle cancer center affiliated with the University of Washington.

In the Oklahoma suit, part of the basis for his claim is that the university breached the patients' "right to be treated with dignity." He is using the 1949 guilty verdicts handed down to Nazi doctors who experimented on Jews and other concentration camp prisoners as part of the basis of the suit.

He also has several clients who are suing doctors and pharmaceutical companies after their children suffered from drugs prescribed to treat Attention Deficit Disorder.

Milstein's lawsuits have angered some in the medical community. But he says it is not his goal to strike fear into universities and laboratories or to halt the development of drugs that could potentially save the lives of millions. He simply wants to make the point that individuals should not always have to be sacrificed for the greater good. "For the most part, I think the researchers and I are fighting for the same thing, advances in science that are achieved through an ethical environment."

Milstein's corner office in Pennsauken is decorated with everything from a seven-generation family tree, to Simpsons figurines. There's an old copy of the Saturday Evening Post with Dylan on the cover. There's a book about the plight of Jews growing up in the South called Shalom Y'All. There's a Baltimore Orioles cap and a paperback copy of The Godfather, his favorite movie. High-profile case

Milstein won't say how Clarett came to be his client, only that he has wide connections. Milstein's Since Milstein began representing the star running back last summer, he has received plenty of hate mail. He's also received his share of media attention. Articles about Clarett in The New York Times and Washington Post hang on his walls.

Groundbreaking, at least in the football world, the Clarett case lacks one element of his other cases - the issue of life and death.

"There are far less weighty issues in the Maurice Clarett case, which is funny to me because reporters will say, `Gee, you've never been involved in such a weighty case, have you?' "

But Clarett's case still plays on the common theme that Milstein looks for: an individual fighting against the so-called "greater good."

Walter "Pete" Swayze, a Philadelphia attorney who represents medical device manufacturers and pharmaceutical companies, has known Milstein for years. The two have squared off in more than one case but remain friends.

"We have mutual respect for each other. He's really a tribute to the profession," Swayze said. "He represents every client as if they are Maurice Clarett."

Swayze was not surprised Milstein took Clarett's case or that he won before it even went to trial. "His mantra is really not NFL players or medical devices. It is representing people who have been harmed or wronged by the system. It's a common thread for him."