An attorney for drug maker Hoffmann-La Roche are asking for recusal of the judge assigned to New Jersey’s years-long, multicounty litigation over its acne medication Accutane.
In motion papers filed Tuesday, La Roche’s lawyer charges that Atlantic County Superior Court Judge Carol Higbee’s words and actions “inexorably lead to the conclusion that the Court is no longer impartial and that its appearance of impartiality is irretrievably lost.”
It’s “impossible for this Court to disregard — and for a reasonable person to believe that this Court could disregard — the history of the [multicounty litigation] and the Court’s bias against Roche and its witnesses, experts, and lawyers,” Michael Griffinger of Gibbons wrote in his brief in In Re: Accutane Litigation, No. 271.
Lawsuits over Accutane — an acne medication that’s allegedly linked to irritable bowel syndrome (IBD) — were first filed in New Jersey in 2003, and were designated for multicounty litigation before Higbee in May 2005. As of Wednesday, 7,840 cases had been filed, the most recent on Dec. 7, and seven bellwether trials have been conducted. Three plaintiff judgments have been reversed, one is on appeal and one ended in a mistrial. Two verdicts are pending.
Griffinger, in his motion, cited Rule 1:12-1(g), which allows disqualification for any reason that “might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so.”
It’s become “increasingly apparent from this Court’s evidentiary and legal rulings … that Roche is being denied basic fairness,” and Higbee “has developed actual partiality against Roche,” he wrote.
Griffinger pointed to a May 2012 appearance Higbee made at a New Orleans seminar on coordinating pharmaceutical mass tort litigation hosted by DRI, a defense lawyers’ organization. He said that ran afoul of Code of Judicial Conduct Canon 5(a)(1), which directs judges to minimize conflicts during extrajudicial activities.
Higbee suspended a bellwether trial to sit on a panel along with the Accutane plaintiffs’ lead counsel, David Buchanan of Seeger Weiss in Newark, during which she “directly addressed this litigation and legal issues relevant to it,” Griffinger said. She referenced a $25 million verdict in one bellwether trial and “commented on the lack of settlements in these cases,” he added.
“The very appearance on a panel with the lead Plaintiffs’ lawyer, during his trial against Roche, creates an appearance of partiality,” he wrote, adding that Higbee and Buchanan had ex parte discussions about the trial in preparation for the event.
Griffinger also cited Higbee’s decision — days before the speaking event — to refuse admission of a February 2012 epidemiological study that found no link between Accutane and IBD, referred to as the “Racine study.”
When a dispute arose over production of communications between a Roche expert and a third party, Higbee called a telephone conference for May 4 and announced, the Friday before trial, that she would exclude the study.
Higbee “attacked Roche’s counsel,” “took the unprecedented step of putting Roche’s lawyer under oath, with only a few minutes notice, to be questioned about the document the expert had obtained,” and “opined on the record that either Roche’s counsel or its expert witness had lied,” Griffinger said.
The “willingness to assume misconduct” without evidence is grounds for reassignment, he added.
Conversely, at an earlier trial, Higbee admitted another study that was more favorable to the plaintiffs, even though it had just been released and there was evidence a plaintiffs’ expert had destroyed evidence related to the study, he said.
Griffinger alleged that Higbee also openly criticized La Roche’s legal strategy — citing remarks that “the defense would be better off trying trials to win, as opposed to trying them for appeal” — opined on the credibility of La Roche witnesses “for no valid reason” while commenting favorably on plaintiffs’ witnesses, and indicated bias against pharmaceutical defendants based on earlier mass litigation regarding Merck’s anti-inflammatory drug Vioxx.
Expression of these opinions “is improper regardless of whether those opinions were or were not expressed in front of a jury,” Griffinger wrote.
He asserted that Higbee has delayed resolving post-trial motions, including by declining to apply a Supreme Court ruling — Cornett v. Johnson & Johnson, 211 N.J. 362 (2012) — that would require vacation of the February 2010 $25 million jury verdict in the plaintiffs’ favor based on the statute of limitations.
Failure to apply Cornett and binding law from out of state “reasonably suggests to an objective observer that the Court is trying to reach a particular result and is not acting in an impartial fashion,” Griffinger wrote.
Last month, La Roche urged the Supreme Court to intervene and reassign the litigation, which it declined to do, instead inviting a motion for recusal.
Griffinger, reached by phone, deferred comment to La Roche spokesman Christopher Vancheri, who said: “After more than nine years of litigation in Atlantic County before Judge Higbee, Roche has reached the firm belief that Judge Higbee’s words and actions have created a significant appearance of bias against Roche, its employees, and its counsel. Accordingly, La Roche has made the difficult decision to seek recusal of Judge Higbee from ongoing management of the Accutane litigation.”
Higbee, through judiciary spokeswoman Winnie Comfort, declines comment on the matter.
Buchanan did not respond to calls and an email seeking comment.
David Gialanella is a reporter for the New Jersey Law Journal, a Legal affiliate.