Johnson & Johnson has asked a federal judge to kick a leading plaintiffs' firm off the mass tort litigation over its talc products, saying that one of its partners teamed up with a former J&J lawyer to thwart the company's strategy to resolve the lawsuits through bankruptcy.
Dec 8 (The Justice Now) –In a motion filed in Trenton, New Jersey, federal court Tuesday, J&J asked U.S. District Judge Michael Shipp to either disqualify Andrew Birchfield and his firm, Beasley Allen, from representing plaintiffs in the case entirely or to remove them from the plaintiffs’ steering committee, where they play a significant role in coordinating plaintiffs’ attorneys’ work and shaping strategy.
Shipp is overseeing a consolidated mass tort litigation encompassing more than 50,000 lawsuits alleging that the company’s now-discontinued talc products cause cancer, primarily by women with ovarian cancer. The company has said its talc products are safe and do not contain asbestos.
The motion says that former Faegre Drinker Biddle & Reath partner James Conlan, who worked on the talc litigation for J&J for nearly two years before leaving legal practice in 2022, has formed an “alliance” with Birchfield aimed at defeating J&J’s efforts to settle the talc cases in bankruptcy.
J&J said it was “impossible that client confidences would not have passed from Conlan to Birchfield,” violating Conlan’s ethical duty to his former client.
Birchfield, in an emailed statement, called the motion “a misguided attempt to silence and bully thousands of people living with ovarian cancer and their families.”
Conlan did not immediately respond to a request for comment.
After leaving Faegre Drinker, Conlan founded Legacy Liability Solutions, which markets itself as helping companies free themselves of their mass tort liabilities by acquiring them after they are split into a new entity.
According to Tuesday’s motion, Conlan made an offer earlier this year for Legacy to acquire J&J’s talc liabilities and settle them. He said Birchfield was on board with the settlement, which would require at least $19 billion from J&J — more than twice what the company had offered in a bankruptcy package rejected by a court in July.
J&J said the proposed deal, which it rejected recently, would also allow Beasley Allen to be paid $1.5 billion or more in fees, much more than they would get in a bankruptcy settlement.
J&J’s worldwide vice president for litigation, Erik Haas, reiterated the company’s intention to resolve the talc claims through bankruptcy in an investor call on Tuesday, either through an appeal of the July ruling or a new bankruptcy filing.
Peter Joy, a professor at the Washington University in St. Louis School of Law specializing in legal ethics, said J&J’s claims about Conlan and Birchfield were “potentially serious.” He told the judge that he would consider whether Conlan and Birchfield took decisive steps to ensure no privileged information was shared.
If they can show that they did, Joy said, they will have a good chance of defeating J&J’s motion.
He said that if they cannot show that they took such steps, the judge would probably consider removing Birchfield and his firm from the steering committee. Joy said they would unlikely be kicked off the litigation altogether because that would harm the thousands of clients they represent.
The talc litigation was on hold for about two years while J&J attempted to resolve it in bankruptcy. The company has recently settled some cases involving a form of cancer called mesothelioma, which represents a minority of the claims.
The case is In re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices and Products Liability Litigation, U.S. District Court for the District of New Jersey, No. 3:16-md-02738.
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