Cosmetic Talc Litigation Media Coverage 12/9/2016

Client Attorney Privileged/Attorney Work Product/At Request of Counsel

US Coverage

1. Facing Huge Verdicts, J&J Keeps Switching Its Lead Counsel

   Dec 9, 2016 | Corporate Counsel

   By Jennifer Williams-Alvarez
   
   
   It’s hardly surprising that Johnson & Johnson has hired a small army of lawyers to defend it in the many product liability cases it’s facing, including the one that ended in a $1 billion verdict last week.

Client Attorney Privileged/Attorney Work Product/At Request of Counsel

US Coverage

1. Facing Huge Verdicts, J&J Keeps Switching Its Lead Counsel

   Dec 9, 2016 | Corporate Counsel

   By Jennifer Williams-Alvarez

   It’s hardly surprising that Johnson & Johnson has hired a small army of lawyers to defend it in the many product liability cases it’s facing, including the one that ended in a $1 billion verdict last week. What’s more interesting, however, is J&J’s approach to putting together its trial teams. The pharma giant keeps switching its lead counsel—a sign that J&J thinks that it should be winning these cases, lawyers say.

   New Brunswick, New Jersey-based J&J is facing thousands of cases relating to the allegedly defective hip implant devices made by DePuy Orthopaedics Inc., which J&J acquired in 1998. J&J won the first so-called bellwether jury trial in October 2014, but the company has struggled since. In March, a federal jury in Dallas awarded a $502 million verdict to five plaintiffs, which was later reduced to about $150 million. And this month, the company was hit with a $1 billion punitive damages verdict, which is also sure to be reduced. A fourth case has been scheduled for September.

   Meanwhile, J&J faces a number of suits alleging that company products containing talcum powder contribute to the development of ovarian cancer. Three cases in the 22nd Circuit Court in St. Louis have come down against the company, starting in February with a jury verdict of $72 million followed by a $55 million verdict in May and a $70 million verdict in October.

    (J&J is likely hoping for appellate reversals. John Beisner of Skadden, Arps, Slate, Meagher & Flom, who oversees the talcum powder and hip implant cases for the company, told our affiliate The National Law Journal that jurors have been allowed to hear evidence that shouldn’t have been introduced.)

   In both mass tort litigations, J&J general counsel Michael Ullmann, who has been in his current role since 2012, has been shuffling around his trial lawyers. In the talc products cases, there’s been new lead counsel in each of the three St. Louis trials so far. Similarly, in the hip implant bellwether trials, there have been six lead attorneys hailing from as many firms.

   Deep-pocketed companies like J&J will often use more than one first-chair trial lawyer in a mass tort litigation. Trials are unpredictable, and schedules can change, so it’s good to have a roster of go-to jury trial lawyers, says John Sullivan, a product liability lawyer at Cozen O’Connor. “It’s risky to have just one person,” he says.
   But this much reshuffling is unusual. When Merck & Co. Inc. faced claims that pain medication Vioxx caused heart attacks and strokes in the federal MDL in New Orleans, the company stuck with lead lawyer Philip Beck from firm Bartlit Beck Herman Palenchar & Scott for five trials, even though the second ended in a loss.

   Why all the tinkering with the trial teams? One answer may have to do with J&J’s losing streak, says Gary Sharp, a partner at firm Foley & Mansfield, which defended Colgate-Palmolive Co. in talc products cases similar to the ones J&J faces. “It is not uncommon to find, when a case goes badly, that there’s a change of counsel,” he says. “Different firms also have different access to different experts, so sometimes you can see a change of counsel because of different experts being available to different firms.”

   After a loss, in-house counsel feel pressure to demonstrate that they’re learning from the defeat, says David Graham of Dykema Gossett. “Changing your outside counsel is one way to do that,” he says.

   Opinions differ on how much it costs to change trial teams as J&J keeps doing. Graham says the costs aren’t too bad, since a lot of product liability work is done with alternative fee arrangements that cap costs. Also, many lawyers are just excited to have a chance to win a case for a big client like J&J, Graham says, so they are happy to do it at a low cost.

   Mixing up the trial teams can be a substantial investment, argues Erik Gordon, an assistant professor at the University of Michigan’s Ross School of Business who studies drug companies. “You invest a lot of time and money into getting lead counsel educated on your cases,” he says. “So you don’t change lead counsel when you’re winning, you change because you’re losing and you’re not ready to believe that the facts are against you,” Gordon adds. “It’s a strong indication that Johnson & Johnson really believes that the facts should be producing different verdicts.”
   

   http://www.corpcounsel.com/home/id=1202774283390/Facing-Huge-Verdicts-JampJ-Keeps-Switching-Its-Lead-Counsel?mcode=1202617073467&curindex=0&slreturn=20161109045254
   

   Return to headline | Return to top