Defense Lawyer Earns A Well-Deserved Benchslap For Misguided Recusal Motion

Last week, we took a ride on the corporate defense lawyer baloney train, this week we jump on the express. Two months ago, pharmaceutical manufacturer Roche Laboratories filed a motion asking Atlantic County, New Jersey Superior Court Judge Carol E. Higbee to recuse herself from the over 7,000 Accutane cases still pending in that consolidated litigation.

 

The 39-page brief Roche filed in support of the motion didn’t have much substance to it, but it was met with much fanfare across the tort reform world as a bold effort to attack a judge who wasn’t sufficiently accommodating to their scorched earth litigation tactics. Roche argued, for example, that Judge Higbee shouldn’t have mentioned at a conference for defense lawyers that Roche was not settling cases because “Roche considers the fact of whether settlements have or have not occurred … to be confidential,” as if we should care that Roche “considers” a publicly-available fact anyone can see on a docket to be “confidential.”

 

Last week, Judge Higbee denied the motion (opinion here, good LexisNexis summary here), shedding more light on how forgiving she has been of the defense misconduct in the case. 

 

By way of background, the Accutane litigation revolves primarily around claims that the drug causes irritable bowel disease. This isn’t some sort of trial lawyer fantasy: in 2006, researchers at the University of Chicago found a link between Accutane use and inflammatory bowel disease. Following up on the 2006 study, a study published in the September 2010 edition of the American Journal of Gastroenterology found that Accutane users had over four times the rate of ulcerative colitis as non-users.

 

Faced with serious claims, Roche and its lawyers came up with a couple of, shall we say, aggressive strategies, including getting plaintiffs — many of whom have suffered horrific injuries, requiring multiple surgeries and ruining the functioning of their excretory system — under oath at depositions and asking them about anal sex and whether or not they’re good Catholics who regularly attend mass. Opinion, p. 12. (In case you’re wondering, no, there’s no connection between anal sex and IBD, and Roche never produced a medical expert arguing otherwise.) The plaintiffs’ lawyers brought this misconduct to the attention of Judge Higbee, who was “disturbed” by the questions, and disturbed that the same questions were being asked at depositions across the country. A defense lawyer even told the Judge during an ex parte break (which the plaintiffs’ lawyer permitted) that she felt the questions were inappropriate and that she was following a script.

 

Now, if Judge Higbee was indeed biased towards the plaintiffs, she could have used this appalling episode — which apparently revealed a deliberate, nationwide attempt to intimidate and embarrass plaintiffs — to allow extensive discovery into the communications among defense counsel (to identify the source of the instructions), and then could have entered sanctions ranging from monetary penalties to the preclusion of evidence at trial.

 

Instead, she counseled the defense lawyer privately, and told the rest of Roche’s lawyers to stop doing it in the future. That’s it — what more did Roche want? A free pass to harass plaintiffs about their sex lives and their religion?

 

Yet, having already been granted one reprieve, that same lawyer came back into the court’s spotlight for improperly redacting communications an expert witness had with a third-party about a study that was being published on the eve of one of the Accutane trials, a study Roche wanted to use in its defense. The end result was the exclusion of the study from the trial, the biggest gripe in Roche’s motion.

 

Frankly, the real facts at issue in the recusal didn’t represent any sort of departure from the norm in scorched earth mass torts litigation. The Accutane litigation just seems to be a particularly hostile version, given that it has gone more than eight years with, as far as I can tell, a single settlement reached solely to get rid of a bellwether trial. I wasn’t going to even write about it, but then I read the ending of Judge Higbee’s order:

 

The Court is also not frustrated that the litigation has not settled. When there had been two verdicts in favor of the plaintiffs and there were only a few hundred cases filed, the Court encouraged the defendant and plaintiffs to settle the cases. For whatever reasons, the opportunity got away and now there are thousands of cases. This is likely much more frustrating to the parties than to the Court. The Court continued to encourage settlement negotiations between the parties with an outside mediator until they ended over a year ago. The lack of candor by defense counsel who claimed in his certification with this motion that he has been handling settlement negotiations implied there are still ongoing negotiations. This is disturbing. At oral argument, counsel acknowledged that at least for a year and maybe closer to two years, there have been no settlement discussions. This lack of candor is another example of the Court being placed in the position of having to ask counsel what appears to be a contradictory statement about the litigation.

 

Needless to say, if you are going to attack the Court for being unfair and unreasonable, it behooves you to refrain from making misrepresentations in your motion for recusal. Yet, apparently the lawyers couldn’t refrain from breaching even that basic tenet of good faith advocacy. Notably, Judge Higbee again granted them a reprieve for this conduct; she could have ordered sanctions there, but instead she responded by merely questioning them at a hearing and burying a criticism against an unnamed lawyer in an unpublished opinion.

 

Of course, the motion for recusal was only the first step of the defense’s plan, not the last, and they will undoubtedly appeal this order, too. Maybe they’ll find a more receptive audience in the appellate court — which is the part that scares me. I’ve worried about appellate courts denying trial courts the power to govern their own affairs, as in Grider v. Keystone Health Plan Central, Inc.. If the appellate court grants the recusal, what message does that send to trial courts? That it’s okay for lawyers to engage in misconduct if their client told them to do so? That, if a party complains loudly enough and raises enough issues, regardless of the merits, the court will give them what they want?

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  • Doug

    It’s time that Roche end this 10-plus year ordeal and settle with the nearly 8,000 plaintiffs. Every pharmaceutical company settles with the plaintiffs in similar bad drug cases. Hoffmann La Roche is the only company that would rather give all their money to their defense attorneys than settle. It behooves them at this point to keep this going. In the end, they will settle and have spent so much more money than they would have had to had they just settled years ago and moved on They are idiots and very foolish!!

    • http://www.litigationandtrial.com/ Max Kennerly

      Indeed. I suppose they could claim they’re just trying to get a complete appellate record on a wide variety of cases but, well, the idea that you’re going to win all of your appeals is foolish for both sides, and Roche has already had some big losses. The Kendall case (on the discovery rule for statute of limitations) has only just begun to reap benefits for plaintiffs, who can now confidently move forward on cases that previously had a cloud of uncertainty over them.

      • Doug

        Exactly! Thanks for responding Max.

        • Doug

          Hey Max,

          Just read an article (dated 7/30/13) that Roche lost their bid to appeal the Accutane Judge’s recusal ruling from this past winter. GOOOOOOOD!!

          Now what? The article said that Hoffmann-La Roche Inc. vowed Tuesday to challenge it. Who do they appeal to now? The NJ Supreme Court? It they lose that, where do they go? Have you ever seen a more stubborn pharmaceutical company than Roche? Do you think this will ever end? They are absolutely nuts and are wasting so much of their money by continuously giving it away to their defense attorneys rather than settle with all of the plaintiffs.

          Would love to hear your thoughts.

        • http://www.litigationandtrial.com/ Max Kennerly

          Thanks for the comment — I had seen the news, but hadn’t updated this post. Next for Roche is the NJ Supreme Court, if it cares to accept the appeal.

          I’m guessing there many more trials ahead for the Accutane cases. Seems to me Roche’s mindset is that, if they keep pressing on far enough, they’ll eventually start repeatedly winning them all, and then they can get rid of everyone with a nuisance settlement.

          Whether that happens remains to be seen; they did have a couple trial victories reversed on appeal, but I don’t think the appellate court entered judgment for the defendant, but rather sent them back down for trial again.

          It’s a stark reminder of the sheer size of the war chest drug companies bring to the war. If they want to try cases forever, they can. A similar process is still ongoing in the Hormone Therapy Replacement cases: most of the cases settled for a number that is, in my humble opinion, inadequate, and now the drug company is forcing everyone to try those cases forever.

        • Doug

          Thanks again for your thoughts, Max! Much appreciated.
          I’m hoping this drawn out process ends sooner rather than later.

          Talk soon -

        • Doug

          Hi Max,

          I was just reding how the NJ Supreme Court issues a stay on 1/14/14 and has now lifted it.

          Law360, New York (January 14, 2014, 4:31 PM ET) — The New Jersey Supreme Court on Tuesday stamped out Hoffmann-La Roche Ltd.’s attempt to expel the presiding trial judge from consolidated litigation alleging personal injuries from the company’s acne drug Accutane.
          In a brief order, the state’s highest court denied Roche’s request for leave to appeal Judge Carol Higbee’s refusal to recuse herself from the underlying multicounty litigation, which comprises more than 7,700 lawsuits blaming Accutane for inflammatory bowel disease and other ailments.

          Roche has now failed to convince three courts, including Judge Higbee herself, that her conduct warranted removal. The drugmaker had complained about comments she made to a defense bar conference about the Accutane cases, her criticism of Roche for not settling, and her allegedly disparate treatment of counsel for Roche and the plaintiffs, among other purported improprieties.

          “As in all cases, we expect the highest level of professionalism from counsel and the parties, including their cooperation with one another and the court whenever possible,” the Supreme Court said. “We also expect that trial court judges will treat all parties with the utmost respect and evenhandedness while presiding over litigation. This matter is returned to the trial court for further proceedings consistent with these expectations.”

          Now what do you think will happen next? Settlements perhaps?

          Would like to hear your thoughts.

          Best regards,
          Doug -

        • http://www.litigationandtrial.com/ Max Kennerly

          Thanks for the update!

          I wished settlement would be next, for everyone involved. But Roche has taken a scortched earth approach, and I think the recusal effort was just another part of that. Higbee won’t retaliate against them — despite their cries to the contrary, she’s a fair and impartial judge — and so they can keep pressing onward until the end of time. I think it’ll take at least a couple wholly finished cases, from trial through completed appeal, to get them to sit down at the table.