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Atlantic County, New Jersey

A recusal fight percolating in ongoing Accutane litigation puts Atlantic County, New Jersey, back on the Watch List for another year. Many eyes are now turned toward the New Jersey Supreme Court to settle Hoffmann-La Roche’s allegations of bias against Judge Carol E. Higbee.

ONE STEP FORWARD, THREE STEPS BACK

Last year’s Judicial Hellholes report applauded Judge Higbee’s June 2012 decision to reject claims brought by plaintiffs against brand name drug manufacturers when plaintiffs allegedly suffered harm from using generic versions of the drugs. But despite the judge’s thoughtful stance against innovator liability, pharmaceutical defendants before the judge’s bench have often complained about unfair treatment, including in prior cases against Merck, the maker of Vioxx. This year, one defendant took direct steps to address the judge’s alleged bias against pharmaceutical companies.

Hoffmann-La Roche, the manufacturer of Accutane, is facing more than 7,700 cases in multicounty litigation (MCL) in New Jersey. While federal MDL courts have rejected many cases for lack of reliable scientific evidence linking Accutane to inflammatory bowel disease (IBD), Judge Higbee has refused to hold a hearing on the reliability of the plaintiffs’ causation expert. And turning a blind eye to newer studies showing no scientific link between the drug and IBD was only one example that defendants pointed to as indications of the judge’s partiality to plaintiffs. Other actions cited include:

  • Appearing on a seminar panel during the middle of the trial with the lead plaintiffs’ lawyer and expressing an opinion on a key issue pending before the court;
  • Placing a defense lawyer under oath and conducting a surprise examination regarding a discovery dispute;
  • Refusing to read defense motions and ruling against the defense on motions that were unopposed by the plaintiffs;
  • Failing to apply settled New Jersey law, but using a Florida decision to find for plaintiffs (a ruling later reversed
    by the appellate court);
  • Personally seeking a document that plaintiffs wanted and assuming a defense expert lied about her ability to
    obtain it;
  • Making negative comments about pharmaceutical companies in general that were unrelated to the case in front
    of her, but were based on earlier cases she participated in; and
  • Faulting the company for not settling the litigation.

JUDGE FINDS HERSELF TO BE UNBIASED

Hoffmann-La Roche filed a motion in December 2012 listing these incidents, asking Judge Higbee to recuse herself from the pending Accutane cases. However, the judge shot back with an order denying the motion and finding herself to be “even-handed and fair” while declaring that “defendant’s counsel have been less respectful to the Court, less candid in their representations to the Court, and much more difficult to deal with than plaintiffs’ counsel when it comes to any type of compromises to move the litigation forward.”

The intermediate appellate court denied Hoffmann-La Roche’s motion to appeal the judge’s decision without issuing an opinion, so the company filed a motion in the New Jersey Supreme Court in August to seek Judge Higbee’s recusal. Besides the judge’s hostile actions toward defendants, her inaction
in handling the Accutane docket was also highlighted. Defendants noted that in one Accutane case, the judge took three years to issue a final appealable order. More than 5,700 of the cases are considered backlogged by the New Jersey courts’ own standards – a total that accounts for 17% of the entire state’s backlog of cases.

“Requiring years of further litigation before the issue of recusal is finally decided will needlessly result in literally hundreds of legal decisions, including multiple trials, being infected with serious doubt about the judge’s partiality,” the defendants wrote in their appeal to the high court. As of press time, the mass tort bar waits anxiously to hear while the New Jersey Supreme Court considers the evidence of bias in the Atlantic County courthouse.

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