Judge Slams Roche for Recusal Request

Judge Slams Roche for Recusal Request

March 6th, 2013 // 1:35 pm @ marquee

In rather stark terms, a New Jersey state court judge recently rejected a request by attorneys for Roche who accused her of bias in long-running and sprawling litigation over the Accutane acne medication. And in her remarks, Superior Court Judge Carol Higbee maintains that she has worked hard to appear even-handed despite several instances in which actions by the Roche legal team have raised “serious concerns” and tried her patience.

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The drugmaker, which is defending more than 7,700 lawsuits charging the risks associated with the acne medication were not properly disclosed, had asked Higbee to recuse herself over an alleged pattern of comments and decisions in which she has “unjustifiably prejudged Roche as a corporate defendant that is underhanded and not credible.”

Although the Roche motion and Higbee ruling make for interesting and sometimes amusing reading, the nasty spat has brought into the open longstanding frustration defense attorneys have had with the state court system in New Jersey, where countless lawsuits have been filed against drugmakers over the years.

In fact, the Superior Court of Atlantic County, where Higbee works, was given the No. 4 position in the annual ranking of judicial hellholes – or unfair jurisdictions – as compiled by the American Tort Reform Association in 2008. This occurred in the midst of the litigation over the Vioxx painkiller over which Higbee presided (back story).

But why does Roche believe Higbee is biased? The Roche lawyers implied that Higbee has been irked because she has overseen seven Accutane trials and the outcomes have either been reversed for retrial or in favor of the drugmaker, while another is on appeal. There was also an inference Higbee is frustrated the cases have not settled, a contention she denied. In any event, the Roche lawyers insisted her “bias” was on display in several ways.

For instance, they cited an appearance Higbee made last May on a panel that was sponsored by DRI, an association of defense lawyers. Among the panelists was David Buchanan, one of the attorneys who represents consumers who have filed lawsuits against Roche over Accutane side effects.

The Roche legal team maintained they learned of her participation from a brochure, that Higbee invited Buchanan into her chambers to discuss the panel presentation and suggested Higbee discussed specifics of the Accutane litigation at the panel presentation. In doing so, they charged Higbee ran afoul of the Code of Judicial Conduct.

In her ruling, however, Higbee maintains Roche attorneys gave no prior indication they had concerns about her appearance and some members of the defense team attended the event. She then insisted there was no communication with Buchanan concerning an ongoing Accutane trial and the only case information she provided at the panel was, essentially, a status report on the overall litigation. “Nothing was said about Accutane that was not public record and/or well known,” Higbee wrote. “Legal rulings or legal issues relating specifically to Accutane were never discussed.”

She then noted her role as arbiter when lawyers bicker or attempt to take unfair advantage of their opponents and pointed to instances in which the behavior of one or more members of the Roche legal team has been questionable. “Unfortunately, there have been several events over the years that have raised serious concerns about representations made by counsel to the court,” she wrote.

For instance, she recounted allegations that individual plaintiffs were harassed and embarrassed during depositions, and that the “pattern of questions” suggested there was an “intentional plan” to intimidate them. The Roche legal team denied the allegations, although Higbee noted the depositions questions concerned religion and anal sex (here is her ruling).

“The questions went far beyond anything that was appropriate, including follow-up questions such as why a Catholic plaintiff did not attend mass regularly,” she wrote. And “there was no medical expert who related anal sex to disease process.” The lawsuits claim the widely used medication caused patients to develop inflammatory bowel disease. As Higbee noted, a medical connection to anal sex was not offered.

Higbee described the questions as “outrageous” and noted different Roche lawyers were asking the same questions in depositions that were being held around the country. She then explained that she was alerted to a “script” that was being used by a Roche lawyer, who asked to speak with her during a so-called management conference and apologized for participating in the questioning. Higbee did not sanction the attorney or the drugmaker.

The Roche lawyers, however, maintained that, at various times, Higbee showed bias by not allowing a study, which showed no connection between Accutane and IBD, to be introduced as evidence in a trial. And Higbee allegedly failed to take action when Roche lawyers argued that a plaintiff’s witness had destroyed evidence – an e-mail thread – and that a plaintiff’s attorney asserted, nonetheless, the e-mails had been produced.

The Roche legal team also charged Higbee applied different standards for introducing various forms of evidence, questions of credibility and expert witness fees (here is the Roche motion with a comparative table at the end showing alleged differences in treatment).

“While an objective review of the facts demonstrates bias against Roche and for plaintiff, Roche need not establish actual bias,” the Roche lawyers wrote in their motion last December, “all that is required for recusal is a reasonable perception of partiality … the record amply establishes an appearance of partiality.”

Higbee did not address these points specifically, but did cite another instance in which she expressed concern about the conduct of Roche attorneys. An expert witness for the consumers mistakenly called a law firm working for Roche and discussed details of the litigation. The lawyers maintained no discussion took place and the call was ended when the mistake was realized. But when asked by plaintiff’s lawyers to produce notes, it was clear a discussion was held and notes were distributed.

“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 litigation. 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,” she wrote.

In a footnote, Higbee also pointed to a similar issue involving Michael Griffinger, who is listed as an attorney for Roche. She noted that he was involved in an episode in a federal court where still more Accutane lawsuits are being heard and had “misrepresented to the court the availability of discovery materials in response” to a request from lawyers for Accutane patients. We asked Griffinger for comment, but he did not respond.

Higbee also points out that the lawyer for Roche who filed the motion seeking her recusal had described himself as handling settlement talks. He also implied negotiations were under way when, in fact, such talks have not been held for as long as two years. The judge described this as a “lack of candor.” And another defense counsel improperly redacted portions of an e-mail chain between a defense expert and others without noting this.

In that instance, Higbee adds that she did not take action against the attorney and agreed to seal the record so it could not be used against the attorney in another court where the attorney appeared. “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 concerns for the attorneys’… welfare, is not justified,” she wrote.

A Roche spokesman sends us this: “We respectfully disagree with the court’s decision to deny Roche’s motion to recuse. We believe Judge Higbee’s actions demonstrate an objective appearance of bias and that recusal is appropriate. Roche will seek leave to appeal. As appropriate, Roche will address in its motion for leave to appeal the mischaracterizations of events in the opinion, which it believes give rise to further concerns about the court’s appearance of partiality.”

[UPDATE: A Roche spokesman has, indeed, asked a state appeals court to review her decision (here is the brief) and adds that “Judge Higbee’s refusal to step aside in the Accutane litigation confirmed Roche’s deepest concerns about her bias. Judge Higbee went out of her way to inject animus against Roche into her opinion on irrelevant matters that even the plaintiffs didn’t raise and that were often factually mistaken.”]