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?