Clarkson S. Fisher U.S. Courthouse in Trenton, N.J.
TRENTON, N.J. – Tens of thousands of lawsuits alleging cosmetic talc causes cancer won’t wait in limbo while the parties argue whether the law firm leading those cases is fit to do so.
Beasley Allen has already been disqualified from more than 3,000 cases against defendants like Johnson & Johnson in New Jersey state court for working with a lawyer who previously represented that company. Up next is the same removal effort in a federal multidistrict litigation that houses ovarian cancer and other claims.
While Beasley Allen says any decision should wait on the outcome of its appeal to the New Jersey Supreme Court, U.S. Magistrate Judge Rukhsanah Singh on Wednesday said no. She ordered a meeting to discuss whether other firms should be made available to handle proceedings while the disqualification motion is pending.
“Further delaying, indefinitely, the decision on the motion fails to provide certainty to the tens of thousands of plaintiffs represented by Beasley Allen and Defendants, and it risks compromising the integrity of proceedings going forward as well as thwarting the setting of a bellwether trial,” Singh wrote.
J&J filed a disqualification motion in the federal MDL based on the same facts the New Jersey Appellate Division used to remove Beasley Allen.
And a disgruntled former client of the firm has also come forward to ask the MDL court to remove it. In a motion filed by Beasley Allen-rival Smith Law Firm, Aletha Wilson says Beasley Allen tried to trick her into signing a retroactive power of attorney giving the firm the power to vote against a $9 billion bankruptcy plan Johnson & Johnson once floated to settle talc litigation against it.
Beasley Allen voted against the bankruptcy plan on behalf of some 11,500 clients, claiming they were better off negotiating a settlement or suing in court. Allen says she stood to gain money under the bankruptcy plan but nothing if she sued in court, since plaintiff experts back claims Baby Powder can cause ovarian cancer, but not uterine cancer.
“I feel like (Beasley Allen) was trying to trick me into signing this Power of Attorney to cover up the fact that BA voted on behalf of clients, such as myself, without my consent and against my best interest,” Allen said in a declaration filed Feb. 18 in the MDL court, where Beasley Allen is lead counsel.
Smith’s allegations were filed by attorney Robert Allen Smith, whose firm formed a joint venture in 2014 with Beasley Allen to pursue talc lawsuits. The arrangement soured after a couple of years and Smith broke into open opposition with Beasley Allen over the J&J bankruptcy plan, which Smith supported and Beasley Allen opposed. Smith has accused Beasley Allen of violating its duties to clients by voting against the bankruptcy plan so it could try to earn larger fees in court.
Beasley Allen is suing Smith in federal court in Alabama, meanwhile, claiming Smith began “secretly undercutting” it in settlement talks because Smith is desperate to repay some $240 million to litigation funders. Smith is suing Ellington Financial, ICG Investments, Stifel Financial and other lenders in Mississippi, accusing them of a “loan to own” scheme to force the law firm into default and seize its talc fees.
The lenders’ “motivation was pure greed, realizing the billions of dollars at stake in the talc litigation,” Smith says in that lawsuit.
The New Jersey state Appellate Division took the unusual step of finding Beasley Allen violated professionalism rules when it strategized with James Conlan on a mass settlement of talc claims. The ruling disqualifies Beasley Allen from 3,600 cases in New Jersey state court.
Conlan was a former partner at Faegre Drinker Biddle & Reath who defended J&J in talc litigation. He left the firm to start Legacy Liability Solutions, where he attempted to buy the company’s talc liabilities and opposed the company’s ultimately unsuccessful plan to settle all cases in bankruptcy court.
Wilson says she was betrayed by Beasley Allen and attorney Andy Birchfield, who has testified that cases over some cancers have no value in court because they aren’t backed by science. Despite that, J&J included those cases in its settlement plan in bankruptcy court, but since it was defeated those claims might be worthless.
J&J vowed to fight the cases in court after its settlement plan was rejected by a Houston federal judge. In addition to the offensive against Beasley Allen, it is taking aim at experts put forth by plaintiff lawyers who plan to testify products like Baby Powder contained asbestos, the asbestos migrated into their clients’ bodies and their cancers were caused by this exposure – and not from asbestos elsewhere.
If the MDL judge prevents those experts from testifying to juries, it will be a major hurdle that Beasley Allen – or some other firm – would have to clear.
