The judge in charge of New Jersey’s massive number of suits over the acne drug Accutane has been transferred to the appellate bench for two months—a move that won’t upset lawyers for drug maker Hoffmann-La Roche who have painted her as their nemesis.
Roche attorneys launched an unsuccessful campaign to remove Superior Court Judge Carol Higbee, of Atlantic County, for alleged pro-plaintiff bias.
However, the reassignment avowedly has nothing to do with the defense bar’s rancor.
“She is one of three judges who are being temporarily assigned and the assignments are unrelated to any motions filed in their cases,” says Tammy Kendig, a spokeswoman for the Administrative Office of the Courts.
Higbee, along with Judges Thomas Manahan of Morris County and Thomas Sumners Jr. of Mercer, will be moved to the Appellate Division from April 14 and end on June 20, or longer if need be.
It’s a “normal part of professional development for Superior Court judges to be offered a stint in the Appellate Division if they express an interest and seem suited to the work. That kind of work isn’t for everyone, so this gives them a chance to see if they like it and if they have the aptitude,” Kendig says.
Still, the transfer removes the judge who for nearly nine years has been overseeing thousands of Accutane lawsuits centralized in Atlantic County. And the assignments could be extended “as necessary to decide motions, and prepare for and conclude all matters assigned to them,” the order states.
As of March 7, there were 7,537 cases pending under the caption In Re Accutane Litigation, No. 271, which Higbee has been overseeing since May 2005. The plaintiffs allege links between Accutane and bowel disease.
Kendig says no decision has been made about reassigning the cases to other judges in view of the temporary nature of Higbee’s transfer.
Roche asked the New Jersey Supreme Court to remove Higbee in November 2012 and moved her to recuse when the high court declined.
Roche claims she’s showed partiality toward the plaintiffs and against the defendants, both in rulings and demeanor, and faulted her for attending a 2012 conference during which she sat with lead plaintiff counsel David Buchanan and discussed the matter while a bellwether trial was pending.
Higbee, in denying the motion, said she had been even-handed. In contrast, she said, Roche’s lawyers, including Michael Griffinger of Newark’s Gibbons, have been “less respectful,” “less candid” and “much more difficult to deal with than plaintiffs’ counsel” when it comes to compromise.
Roche’s appeals failed. In January, the Supreme Court declined to hear the issue and reminded the parties to be respectful and professional. The court added: “We also expect that trial court judges will treat all parties with the utmost respect and evenhandedness while presiding over litigation.”
Justin Walder of Walder, Hayden & Brogan in Roseland, who handled the recusal appeals on Roche’s behalf, declines comment on the transfer.
Plaintiff counsel Christopher Seeger of Buchanan’s firm, Seeger Weiss in Newark, calls Higbee “fair,” “smart,” and “one of the best and the brightest.”
Despite the temporary nature of the Appellate Division assignment, Seeger doesn’t anticipate her return to the trial docket. “She’s so good, I would expect her to stay there,” he says.
Higbee, through Kendig, declines comment. •
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