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Talc Litigation Takes Another Dramatic Turn

On Wednesday, April 10th, a hearing on a motion to disqualify a prominent plaintiffs’ firm and a lead attorney from the talc multi-district litigation (MDL) will continue in an Atlantic City courtroom.  Johnson & Johnson is attempting to disqualify the Beasley Allen law firm and attorney Andy Birchfield after it came to light the firm was working behind the scenes with one of J&J’s former talc lawyers unbeknownst to the company.

According to J&J, former Faegre Drinker Biddle & Reath attorney, James Conlan, who represented the company in the talcum powder MDL, communicated multiple times with Birchfield without telling the company or seeking permission to do so.  Erik Haas, the Vice President of Litigation for J&J, testified in March that Conlan and Birchfield attempted to “thwart” the efforts to resolve the talc claims.  The lawyers’ coordination began as early as April 2023 and continued through multiple key inflection points in the bankruptcy effort. 

The ATRF has written extensively about the battle over whether the bankruptcy process is the appropriate mechanism for resolving the talc litigation.  Beasley Allen is at risk of losing out on hundreds of millions of dollars in attorneys’ fees if the litigation is moved out of the civil courts.  Not surprisingly, they are spearheading the opposition efforts to the most recent attempt at bankruptcy.  It was suggested in an April 2023 hearing that plaintiffs’ lawyers stand to lose over $780 million if claims are removed from the tort system and resolved through bankruptcy.

It is readily apparent that the plaintiffs’ lawyers have an overwhelming financial stake in preserving the status quo, but that should in no way impact judges’ handling of the bankruptcy filing. Resolution of these claims should prioritize the best interests of claimants – not the profit-seeking motives of their lawyers.

The voluntary Chapter 11 bankruptcy process is an essential step to resolving the legal morass that has arisen over many years in claims related to talcum powder. Addressing litigation claims is a valid bankruptcy purpose and has been historically recognized by courts across the country. Resolution of mass-tort liabilities in bankruptcy court has been a key tool for U.S. businesses since the Bankruptcy Code was first enacted in 1978. 

By contrast, plaintiffs’ lawyers want to continue to bring their cases in a flawed mass tort system where high-dollar awards, low evidentiary standards, and low barriers of entry are the norm.

There can be no dispute that the traditional tort system has failed all involved in the talc litigation with the exception of the plaintiffs’ lawyers and a few select claimants. If the goal is to provide a level playing field, rather than a “race to the courthouse” for talc claimants, then the bankruptcy system is the only viable solution.

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