Hoffmann-La Roche has lost its latest attempt to get Atlantic County Superior Court Judge Carol Higbee, who manages all Accutane litigation in New Jersey, off the case.
Higbee on Wednesday denied Roche’s motion for recusal in In Re Accutane Litigation, No. 271, saying she harbored no bias for the plaintiffs. "In the over 1,000 decisions made by this Court in this litigation, the Court has always been completely even-handed and fair," she wrote.
Defense counsel, on the other hand, have been "less respectful," "less candid" and "much more difficult to deal with than plaintiffs’ counsel when it comes to any type of compromises to move the litigation forward," Higbee noted, which might explain any perceived curtness toward them.
Roche has promised to appeal.
Higbee is in charge of nearly 8,000 suits alleging a link between the Roche’s acne drug and inflammatory bowel disease (IBD).
In its recusal motion, filed Dec. 11 by lead defense counsel Michael Griffinger of Gibbons in Newark, Roche alleged that Higbee had demonstrated a partiality toward the plaintiffs. He cited, as examples, her refusal to admit an epidemiological study proffered by the defense, her criticism of defense attorneys and their strategy and her participation in a panel discussion — alongside lead Accutane plaintiff counsel David Buchanan — at a May 2012 lawyers’ conference in New Orleans.
Though the conference was hosted by DRI, a defense lawyer group, her participation in the middle of a weeks-long bellwether trial — and her discussions with Buchanan at the event — suggested partiality, Griffinger argued.
Higbee, in her written opinion on Wednesday, said her participation, and the rescheduling of trial proceedings to allow it, were not unusual, and Roche had advance notice.
Her discussion with Buchanan, regarding the panel’s format and topics, was not improper because it "did not pertain in any way to the Accutane trial," Higbee said.
And though she generally discussed the Accutane case along with numerous others, "Nothing the Court said … could create even a perception of bias against the defendant Hoffmann-La Roche or defendants in general," she said.
Her management of the case and comments critical of defense lawyers cannot be perceived as stemming from bias against Roche, Higbee said.
She said that "maintaining a fair playing field under the rules of law … means finding fault, taking action to get to the truth and at all times being in control of the proceedings."
Higbee noted revoking the pro hac vice admissions of defense lawyers from Ice Miller in Chicago upon learning they’d misrepresented the nature of an inadvertent conversation between a plaintiff expert and the firm.
She referred to deposition questions shown to her that inquired about anal sex even though no expert had linked it to IBD. The questions "suggested there was an intentional plan to intimidate and harass" plaintiffs and "went far beyond anything that was appropriate, including follow-up questions such as asking why a Catholic plaintiff did not attend mass regularly," Higbee said.
The same attorney Higbee questioned about the depositions — unnamed in the opinion — improperly redacted emails exchanged with a defense expert on the subject of the epidemiological study, she noted.
Higbee also said Griffinger improperly implied, in a recent certification, that he’s handling settlement negotiations, even though talks ended more than a year ago. She called the statement "disturbing" and "another example of the Court being placed in the position of having to ask counsel to clarify what appears to be a contradictory statement about the litigation."
Plaintiffs’ counsel Christopher Seeger, of Buchanan’s firm, Seeger Weiss in Newark, says Higbee, "because of this motion, has had to put trials on hold.
"This is the problem with this motion," he says. "[Defense lawyers are] really getting what they want. … In a way, they’ve almost been rewarded for this ridiculous attack."
As for the documentation of defense counsel misconduct in the opinion, Higbee "went easy on them," Seeger says. "There are many things not mentioned that could’ve been mentioned that would be equally embarrassing."
Roche spokesman Christopher Vancheri confirms that the company will seek leave to appeal the ruling.
Asked for comment on the supposed misconduct, Vancheri says: "As appropriate, Roche will address in its motion … the mischaracterizations of events in the opinion, which it believes give rise to further concerns about the Court’s appearance of partiality."
Griffinger did not respond to a call and email.
This was Roche’s second failed attempt to oust Higbee. The state Supreme Court in November rebuffed its request to reassign the litigation, instead inviting a motion for recusal.
Accutane suits were first filed in 2003 and centralized before Higbee in May 2005. As of Feb. 2, there were 7,865 pending cases — the most recent filed on Jan. 31 — and seven bellwether trials with mixed outcomes.