A federal judge who appointed two women to lead the plaintiffs’ team in nationwide talcum powder litigation in New Jersey has called their recent objection to her appointment of a special master “troubling” because it focused on gender.
“The suggestion that gender should play a role in the selection of a special master is completely without merit,” U.S. District Judge Freda Wolfson wrote in an Aug. 18 letter confirming the appointment of retired U.S. District Judge Joel Pisano as special master in more than 2,000 cases alleging Johnson & Johnson’s talcum powder products caused women to get ovarian cancer. Pisano, who served as a U.S. district judge in New Jersey from 2000 to 2015, is now counsel at Newark-based Walsh Pizzi O’Reilly Falanga.
Leigh O’Dell and Michelle Parfitt, who were named in December to head the talcum powder litigation, had suggested the names of three former judges, all of whom are women, to serve as special master instead of Pisano “because this multidistrict litigation involves such a significant and serious women’s public health issue,” according to Wolfson’s letter.
“I find plaintiffs’ objection to be troubling, and not meriting further discussion,” she wrote.
O’Dell, a principal at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Alabama, declined to comment about the matter. But in an Aug. 21 response, she and Parfitt, a senior partner at Ashcraft & Gerel in Alexandria, Virginia, apologized “for any unintended offense.” They asked Wolfson to reconsider the appointment.
They also advanced another argument against appointing Pisano: His firm’s representation of other pharmaceutical manufacturers such as a subsidiary of Merck & Co. Inc. and Pfizer Inc., which has been named in cases linking mesothelioma to cosmetic products made from talcum powder.
The objections to Wolfson’s planned appointment of Pisano come as Johnson & Johnson has filed a motion for the court to oversee the possible testing of 92 containers of its baby powder stored “under lock and key in a controlled physical environment” at a museum at its headquarters in New Brunswick, New Jersey. Johnson & Johnson is claiming that plaintiffs’ attorneys want to test the samples, which span 125 years, for use in thousands of cases across the country as evidence.
“As this court is aware, plaintiffs are currently investigating the link between our clients’ ovarian cancers and talcum powder containing asbestos fibers,” wrote O’Dell and Parfitt, joined by liaison counsel Christopher Placitella, a shareholder at Cohen, Placitella & Roth in Red Bank, New Jersey. “The perception of the litigants and the public dictate that the parties and the court should proceed carefully in selecting a master if there is any question concerning the ties of the proposed master’s law firm to either side.”
The battle over the naming of a special master and the discovery skirmish over bottles of talcum powder at Johnson & Johnson’s museum are the latest developments in the litigation, which includes thousands more cases in state courts in Missouri, California, New Jersey and Delaware. On Aug. 21, a Los Angeles jury handed up a record $417 million verdict. Juries in four Missouri trials have rendered similar verdicts between $55 million and $110 million.
Plaintiffs lawyers in 12 state court cases have asked that Johnson & Johnson to turn over the baby powder samples from its museum. That prompted Johnson & Johnson to file an Aug. 16 motion seeking a protective order over the containers to prevent what it called “destructive testing,” the results of which “may be used to support expert witness testimony in this action and in thousands of pending actions and future actions here and in courts across the country.” The requests could reduce an already limited supply of bottles, threatening Johnson & Johnson’s ability to do its own testing, wrote defense attorney Susan Sharko, a partner at Drinker Biddle & Reath in Florham Park, New Jersey.
In an Aug. 23 opposition, Parfitt called Johnson & Johnson’s “far-reaching request” an attempt to halt discovery and nothing more.
Johnson & Johnson also has supported Pisano’s appointment. In an Aug. 23 letter, Sharko noted that federal rules only prohibited a special master from having a connection to the parties in the case.
Pisano declined to comment about his appointment. In an Aug. 23 letter, he said he had no conflicts. He said he had limited to no involvement in the Pfizer and Merck matters, though he noted that some of his colleagues had represented another defendant in the MDL, Imerys Talc America Inc., a talc manufacturer, while at their former firm, New Jersey’s Connell Foley. He said he would ensure those attorneys were “walled off” from his work on the MDL.
As to not being a woman, he said that he was “associated with a women-owned firm, the majority of my former law clerks are women, I have been married to the same woman for 46 years” and “my dentist is a woman.”
Whoever is appointed special master in the case would be expected to oversee discovery and pretrial action in the multidistrict litigation which was sent to Wolfson’s court. The special master could also take on other duties on Wolfson’s assignment.
Contact Amanda Bronstad at firstname.lastname@example.org. On Twitter: @abronstadlaw.