ATLANTIC CITY, N.J. - (Mealey's) The judge overseeing New Jersey's Accutane litigation on Feb. 13 denied a motion by defendant Hoffman-La Roche Inc. to recuse, refuting allegations that she is biased in favor of plaintiffs and stating that in this litigation, defense counsel are "less respectful of the Court, less candid in their representations to the Court, and much more difficult to deal with than plaintiffs' counsel" (In Re Accutane Litigation, No. 271, N.J. Super., Atlantic Co.).
(Opinion available. Document #28-130221-015Z.)
On Dec. 11, defendant Hoffman-La Roche Inc. filed a motion asking Judge Carol E. Higbee of the Atlantic County Superior Court to recuse herself from the state's multicounty Accutane litigation because of bias. Roche cited Judge Higbee's appearance at a defense legal conference with a plaintiff attorney from the Accutane litigation.
It also said Judge Higbee showed a bias in favor of plaintiffs by, among other things, criticizing Roche for not settling the litigation.
Conference Appearance Open, Balanced
After a January hearing, Judge Higbee said she appeared on a panel at the Defense Research Institute (DRI) May 2012 meeting that featured another judge, plaintiff attorney David Buchanan of Seeger Weiss in New York and a defense attorney. She said she insists that any programs at which she appears be open to both plaintiff and defense counsel and that her panels feature both plaintiff and defense attorneys.
Judge Higbee said her appearance at the DRI conference was known to both sides in the Accutane litigation and took place at a time when the court was not conducting court business. She said that though the panelists discussed how the program would be divided, she said "any suggestion that Mr. Buchanan and this Court engaged in improper ex parte communications is without merit."
The judge said she is well aware that she should have no ex parte conversations without the consent of the other side and said her conversation with Buchanan "did not pertain in any way to the Accutane trial." Additionally, Judge Higbee said Roche's counsel "never gave any indication that they had even the slightest concern about the Court's appearance with plaintiff's counsel at this conference."
No-Settlement Stance No Secret
Judge Higbee said that in describing the New Jersey Accutane litigation at the conference, she stated that there were no settlement negotiations and that Roche indicated that it wants to have additional trials. She said "defendants usually tout the fact that they are not settling cases as a way to discourage new cases from being filed."
"Defense counsel in this case or in any other case has never suggested to the Court they wanted to keep a secret that they were not paying to settle cases," she continued. "The opposite has occurred. Nothing was said about Accutane that was not public record and/or well known."
Judge Higbee said she addressed expert witness challenges during the panel presentation, but never addressed the Accutane litigation.
In discussing Lone Pine orders, Judge Higbee said, "Nothing the Court said at this conference could create even a perception of bias against the defendant Hoffman-La Roche or defendants in general."
Defense Pro Hac Vice Revoked
The judge said she has, at times, found fault and taken action "to get to the truth" to maintain control of the proceedings. She said that in one instance, defense firm Ice Miller of Indianapolis engaged in an inadvertent discussion with a plaintiff expert.
Judge Higbee said she determined that the information Ice Miller obtained was not significant, "but defense counsel's failure to be candid with the Court about what had occurred resulted in this court revoking the pro hac vice admissions of the attorneys from Ice Miller."
In another instance, Judge Higbee said that plaintiffs' counsel complained that certain plaintiffs were being harassed and embarrassed during their depositions by several different defense attorneys. She said plaintiffs were asked about anal sex and a Catholic plaintiff was asked why he did not attend mass regularly.
"This Court made it clear that the questions were outrageous and different defense counsel asking the same questions in depositions scattered across the country was disturbing," the judge said.
Attorney 'Sorry' About Scripted Questions
Although Roche "adamantly denied these allegations," Judge Higbee said that during a break, a defense attorney asked to speak with the judge ex parte. "She came into chambers, said she was having difficulty not crying, and proceeded to explain that she had been given a 'script' of the questions to ask," the judge said.
"She stated she was sorry and would not engage in such behavior again," the judge continued. "She was concerned about repercussions."
Judge Higbee said she did not sanction any defense counsel but ordered such deposition questioning to stop.
Less Than Candid
"These are just two of several incidents that have created difficulty for the Court to appear even-handed in the face of contradictory representations made by defense counsel during the course of the litigation," the judge said. "The conflicting representations give the appearance of defense counsel initially being less than candid with the Court and only being forthright after the Court took action."
Judge Higbee said she has taken the same approach to both defense and plaintiffs' counsel. "However, defendant's counsel have been less respectful of the Court, less candid in their representations to the Court, and much more difficult to deal with than plaintiffs' counsel when it come to any type of compromises to move the litigation forward," she said.
The judge said she was not referring to settlements.
When defense counsel accused a plaintiff expert of deleting part of an email chain, "the Court took steps to make sure the defendant got the deleted information," the judge said.
Why Study Was Excluded
Roche also complained that Judge Higbee had refused to allow the so-called Racine study into evidence at the most recent trial. She said the trial resulted in two defense verdicts and two plaintiff verdicts and will be appealed and properly reviewed at that time.
"There is no question, however, that the same defense attorney who the Court had the prior discussion with about the harassment of plaintiffs in depositions improperly redacted portions of the e-mail chain between a defense expert and others without noting it in a privilege log," the judge said.
Judge Higbee said that when she called a defense attorney from the same firm into chambers "to question her actions as an officer of the court," the attorney wanted the conversation on the record. The judge said she told the attorney, "that's too bad."
The judge wanted the conversation off the record so as not to create a record that could be used against the attorney if she applied for admission to another court. Eventually, Judge Higbee said the conversation went on the record but was sealed for the attorney's protection.
Not Biased Or Abusive
"To use any of this to suggest the Court has a bias against the defense, as opposed to acknowledging the Court's actual attempts to fairly handle a difficult situation with concern for the attorneys' and the parties' welfare, is not justified," the judge said.
"None of the Court's comments to counsel or questions about the credibility of counsel at different times could reasonably be perceived as being based on a bias against the defendant or counsel," Judge Higbee said. "None of the Court's comments referred to by the defendant at argument have been abusive, and none have been in front of any jury."
The judge said there is no merit to Roche's argument that she is "frustrated" by appeals court rulings. She noted that appeals have gone both ways.
"From the early point in the Court's assignment to multi-county litigation, it became apparent that this Court was not in Kansas anymore, and every ruling would be scrutinized and some reversed," the judge said. "This does not frustrate the Court. It makes the job challenging and interesting."
Judge Higbee said she is not frustrated that the litigation has not settled. She said the fact that there are not thousands of Accutane cases in her court is "likely much more frustrating to the parties than to the Court."
Judge Higbee said she "continued to encourage settlement negotiations between the parties with an outside mediator until they ended over a year ago."
"The lack of candor by defense counsel who claimed in his certification with this motion that he has been handling settlement negotiations implied that there are still ongoing negotiations," the judge said. "This is disturbing. At oral argument, counsel acknowledged that at least for a year or maybe closer to two years, there have been no settlement discussions."
"This lack of candor is 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," the judge concluded.
Before filing the motion, Roche attempted to have Judge Higbee removed by the state Supreme Court. That court declined, saying the proper procedure is to file a motion asking the judge to recuse.
Roche is represented in the motion by Michael Griffinger of Gibbons in Newark, N.J. The plaintiffs are represented by Christopher Seeger of Seeger Weiss in New York.
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