Johnson & Johnson Baby Powder no longer contains talc powder.
TRENTON, N.J. – The law firm Beasley Allen made it its mission to fight Johnson & Johnson in court. Now, a federal judge has disqualified it from doing so.
Beasley Allen spearheaded the effort to fight J&J’s plan to pay $9 billion to settle tens of thousands of lawsuits alleging the company’s talc-based products like Baby Powder contained asbestos that caused ovarian and other cancers. It was successful and forced J&J back to New Jersey federal court, where Beasley Allen hoped for jackpot verdicts that would boost its clients’ position for larger settlements than the previous plan would have provided.
But along the way, it and attorney Andy Birchfield collaborated with a former J&J lawyer on a mass settlement plan – an arrangement J&J called “shocking and deeply troubling” that got Beasley Allen booted off 3,600 state court cases in New Jersey earlier this year.
Yesterday, federal magistrate judge Rukhsanah Singh agreed with the company that Beasley Allen should be disqualified from leading cases in the much-larger federal court proceeding, called multidistrict litigation.
“Here, Beasly Allen and Mr. Birchfield’s conduct at issue, even if not violative of [a rule of professional conduct], undermines the goals of leadership in an MDL as complex as this one,” Singh wrote.
“Clearly, personal antagonism and poor choices render Beasley Allen’s continued leadership problematic. Accordingly, Beasley Allen cannot remain on the [plaintiffs steering committee].”
New Jersey’s Appellate Division found Beasley Allen violated professionalism rules when it strategized with James Conlan, who had represented Johnson & Johnson in court, on a mass settlement of talc claims.
The ruling escalated the disqualification push in federal court, where a disgruntled former client of the 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. Wilson 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.
Conlan was a 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.
He worked with Beasley Allen’s Birchfield to craft a settlement outside of the bankruptcy process, which was J&J’s preferred avenue. Conlan and the firm wanted the talc liabilities bundled to an offshoot company that would be sold to him.
Conlan even wrote an op-ed in Bloomberg touting that strategy. Court records show 8,000 Beasley Allen clients who, through Beasley Allen, voted against J&J’s bankruptcy settlement but never actually told the firm what their position on that plan was.
“Indeed, there are many lawyers representing thousands of plaintiffs in this MDL who have not generated the concerns Beasley Allen has,” Singh wrote.
“All plaintiffs involved in this matter deserve to be represented by counsel who take seriously their ethical obligations and who are above reproach.”
Beasley Allen “ratified” Conlan’s conduct by asking to include him in settlement negotiations with J&J, Singh wrote.
The talc MDL is one of the largest in the country and was organized in 2016. There are more than 67,000 claims and the promise of a large payout when it is resolved led to attorneys spending on advertising and some firms taking money from litigation funders who were promised a share of the recovery.
Still pending are motions to disqualify experts who testify there is asbestos in talc, the talc made its way into plaintiffs’ bodies and it caused their cancers. J&J calls those claims “junk science,” and a ruling preventing those experts from telling it to jurors could doom the cases.
J&J has won plenty of defense verdicts in trials that hinge on expert testimony regarding whether there is asbestos in the talcum powder, but when it loses, jurors aren’t shy about delivering massive verdicts. In December, one woman won $1.5 billion in Baltimore, and two women in Los Angeles won $40 million.
