Two weeks after the judge in charge of nearly 8,000 suits over the acne medication Accutane spurned Hoffmann-La Roche’s attempt to remove her, the drug maker is escalating its efforts.
On Monday, Roche filed a motion for leave to appeal Superior Court Judge Carol Higbee’s Feb. 13 rejection of the argument that she harbors a pro-plaintiff bias that requires her recusal.
And the company brought on some big guns: veteran litigators Edward Dauber and Justin Walder. Both signed the brief in support of the appeal motion.
It’s been nearly eight years since all New Jersey suits alleging Accutane has a link to irritable bowel disease (IBD) were centralized before Higbee as In Re Accutane Litigation, No. 271.
Over time, Roche claims, the judge has demonstrated partiality toward the plaintiffs and against the defense, both in her rulings and in her demeanor.
Roche asked the Supreme Court to remove Higbee from the litigation last November. The justices refused, instead inviting a recusal motion, which Roche filed in December.
In her Feb. 13 denial of the motion, Higbee said that in more than 1,000 decisions she has made in the litigation, "the Court has always been completely even-handed and fair."
Any perceived disfavor toward defense counsel, she said, stems from their having 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."
In its brief, Roche claims that Higbee’s opinion itself "demonstrates precisely why recusal is necessary" and "demonstrates the predicament in which Roche finds itself."
Rather than addressing the arguments, she "justified its negative opinions about Roche by raising six events that were largely unrelated to the issues before it, not accurately recited, and, in some instances, apparently selected to embarrass counsel, without counsel having any opportunity to dispute the alleged facts or respond," Roche said.
Roche referred to Higbee’s mention of Chicago-based defense firm Ice Miller’s improper contact of a plaintiff expert in 2005 and allegedly improper deposition questions that inquired about anal sex, which Roche says has been linked by medical evidence to IBD. Ice Miller voluntarily withdrew, though Higbee said she revoked the firm’s pro hac vice admission, Roche claims.
Roche also faulted Higbee for saying its longtime counsel, Michael Griffinger of Gibbons, implied in a certification that settlement talks were ongoing: "On the contrary, nothing in Mr. Griffinger’s certification expressed or implied that settlement negotiations were ongoing; in fact, counsel stated that such negotiations had occurred in the past but were unsuccessful," the brief said.
Roche, as it had in the motion for recusal, relied heavily in its brief on Higbee’s participation, alongside lead plaintiff counsel David Buchanan, in a panel discussion during a May 2012 conference in New Orleans. Though the event was hosted by defense bar group DRI, formerly known as the Defense Research Institute, Roche complained that Higbee adjourned a bellwether Accutane trial to attend, discussed the event beforehand with Buchanan and during the event specifically referenced the Accutane matter.
In her opinion, Higbee said participation in such a panel with plaintiff counsel is not unusual, and Roche had notice of the event and didn’t object.
But Higbee did not disclose that she would be discussing the pending litigation, Roche countered. She "made a point of publicly stating that no settlements were occurring," mentioned plaintiff verdicts while omitting their reversal and expressed skepticism of motions to determine reliability and admissibility of expert reports, even while such a motion filed by Roche was pending before her in the Accutane litigation, Roche said.
"Such public commentary is flatly prohibited," Roche said, citing In re Broadbelt, 146 N.J. 501 (1996), where a judge’s television commentary on a pending case was held improper, and two U.S. Court of Appeals rulings that ordered recusal based on a letter to the editor and statements made at a seminar.
Roche also pointed to Higbee’s divergent rulings on two studies, each of which was released soon before a bellwether trial, and to a series of statements in which she criticized Roche for not settling cases, accused it of being underhanded and questioned defense witnesses’ credibility — in one instance in front of a jury.
The brief called Higbee’s statement in her ruling that Roche has been uncooperative and tried cases for appeal purposes "particularly troubling, both because Roche has repeatedly compromised in this litigation and because the court is regularly called on to resolve disputes where the parties are unable to reach agreement."
Dauber, of Greenberg Dauber Epstein & Tucker in Newark, a former assistant U.S. attorney in the District of New Jersey, was executive assistant attorney general and director of the Division of Law in the early 1990s. Walder, of Walder, Hayden & Brogan in Roseland, is a former deputy attorney general and assistant Essex County prosecutor.
Walder said in a statement: "Based on the extensive record in the case, it is apparent this judge has lost the necessary objectivity about Hoffmann-La Roche and the Accutane cases. … Allowing this judge to continue ruling on these cases for years to come would be unfair to Roche and to the public."
Higbee did not respond to a request through a judiciary spokeswoman for comment.
Plaintiff counsel Christopher Seeger of Seeger Weiss in Newark, Buchanan’s firm, says he will file opposition papers.
Seeger says he doubts that their arguments would be sympathetically received by any appellate court. "Roche wastes money on anything except settling cases," he says. "When you talk about an abuse of judicial process, this is a classic example."
Accutane suits were first filed in 2003 and centralized before Higbee in May 2005. As of Monday, 7,848 cases had been filed and seven bellwether trials completed. Nine of 14 plaintiffs were awarded damages. Four other plaintiffs lost, and one case ended in a mistrial. According to Roche’s brief, five plaintiff verdicts were overturned.
David Gialanella is a reporter for the New Jersey Law Journal, a Legal affiliate.