A Philadelphia judge is the latest to kick the mass tort law firm Beasley Allen off cases alleging products like Baby Powder cause cancer, revoking the permission he once granted its attorneys to practice in the court.
Judge Joshua Roberts issued that ruling April 17, a week after the New Jersey Supreme Court affirmed disqualification of Beasley Allen from more than 3,600 lawsuits in that state. And a federal judge in New Jersey has issued a similar decision to remove Beasley Allen as lead counsel in the consolidation of more than 60,000 cases.
Beasley Allen was found to have strategized too closely with a former lawyer for Johnson & Johnson on a plan to craft a mass settlement of claims alleging products like Baby Powder contained asbestos.
“Doubt created by infidelity can never be cured, and the Court should not have to require a party (here, J&J) – even a multinational highly sophisticated company – to overlook infidelity so that an opposing party may have counsel of their choice, especially when the offending firm could have easily avoided the harm complained of,” wrote Roberts, who oversees 176 talc lawsuits.
Though Beasley Allen said in court documents it is “likely to prevail in its forthcoming appeal” of the federal disqualification to the Third Circuit, lawyers at other firms have begun filing applications to take over as lead counsel.
This battle could have been avoided. Beasley Allen led the fight against Johnson & Johnson’s plan to settle claims for $9 billion in bankruptcy court. The firm 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 Birchfield collaborated with a former J&J lawyer on a mass settlement plan – an arrangement J&J called “shocking and deeply troubling.”
New Jersey’s Appellate Division found Beasley Allen violated professionalism rules when it consulted 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, said Beasley Allen tried to trick her into signing a retroactive power of attorney giving the firm the power to vote against the $9 billion bankruptcy plan Johnson & Johnson 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.
“There can be no question that Mr. Birchfield and Mr. Conlan, an ‘ex-lawyer’ with significant experience in the complexities of mass tort litigation, knew or should have known of their professional obligations, and that their collaboration (i) jeopardized Mr. Conlan’s duty of confidentiality to J&J; and (ii) potentially allowed Mr. Birchfield access to that information,” Judge Roberts wrote.
“Mr. Birchfield and Beasley Allen ratified Mr. Conlan’s conduct by using that information in mediations and/or to negotiate directly with J&J.”
Beasley Allen has defended its conduct, writing in the federal court that it never employed or controlled Conlan. Affirming its disqualification would chill participation in mediation efforts, the firm said, and discourage “creative approaches to dispute resolution.”
The federal 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.
