Alison Frankel

In the next day or two, W. Mark Lanier of the Lanier Law Firm will file a letter with Dallas federal judge Ed Kinkeade outlining the reasons why he should lead what Lanier believes will become a huge mass tort: the multidistrict litigation over DePuy’s Pinnacle hip replacements. More than 300 personal injury suits accusing the Johnson & Johnson unit of failing to warn patients about design defects in the best-selling product have been filed in federal courts around the country and consolidated before Judge Kinkeade. Lanier made a preemptive play to take charge of the MDL, proposing that he and a handful of other well-known mass tort veterans head up a broadly inclusive plaintiffs steering committee. But instead, in an August 10 order, Judge Kinkeade threw open the leadership contest with a call for plaintiffs firms to respond to a long list of questions about their experience in big cases.

“It’s an interesting situation,” Lanier told me. “You’ve got the usual crew of mass tort lawyers who’ve done this rodeo time and time again. And then you’ve got a new crew of Dallas lawyers who are looking to be in leadership roles because they know the judge, know the Dallas system.”

Lanier’s allies include Edward Blizzard of Blizzard McCarthy & Nabers; Richard Arsenault of Neblett Beard & Arsenault; Kenneth Seeger of Seeger Salvas; and Paul Hanly of Hanly Conroy Bierstein Sheridan Fisher & Hayes. Blizzard told me that coalition is holding together, “but what I took from Judge Kinkeade is that he’s going to make his own decision.” The judge, who has never before presided over an MDL, has said he may even interview candidates to lead the case.

Notably absent from the contenders’ ranks is Ellen Relkin of Weitz & Luxenberg – but that’s because she’s already co-lead counsel in the other DePuy hip replacement MDL. Yes, that’s right: the Pinnacle litigation is a younger brother to the year-old MDL over DePuy’s ASR hip replacement. Johnson & Johnson recalled the ASR implants a year ago, and that MDL already includes more than 2,000 cases. Relkin and her co-lead counsel, Steven Skikos of Skikos Crawford Skikos & Joseph, previously led the Ortho Evra birth control MDL before the Cleveland federal judge who’s overseeing the ASR case, David Katz. Judge Katz picked Relkin and Skikos from among dozens of plaintiffs lawyers who filed applications.

The big question, according to Lanier, Relkin, and Blizzard, is how the two DePuy hip replacement MDLs will differ. Obviously, they involve different products, only one of which was recalled. J&J has been proactive about complaints by patients with ASR hip replacements. As Reuters reported earlier this week, the company reached out to doctors who used the ASR products and, in a controversial move, brought in a consultant, Broadspire Services, to administer patient claims for replacement surgery. (Ed Blizzard calls Broadspire, a health insurance management company, “a spy for J&J.”)

All ASR implants have a metal-on-metal hip-in-socket design, which is the source of the problems plaintiffs allege. (The basis assertion is that when the two metal pieces rub against one another, they create metallic residue that causes debilitating local irritation and, possibly, systemic metal poisoning.) Some Pinnacle products, on the other hand, have polyethylene or ceramic liners between the metal parts. That means, according to Relkin, that there’s a known universe of potential ASR plaintiffs — about 34,000 in the U.S. — but not of potential Pinnacle plaintiffs because it’s not clear how many Pinnacle implants are metal-on-metal. (Relkin’s firm, Weitz & Luxenberg, is involved in both MDLs.) Lanier is convinced Pinnacle claims will eventually outpace ASR claims because DePuy sold many more Pinnacle implants; Blizzard said ASR will be the bigger MDL.

All three plaintiffs lawyers told me J&J will eventually have to settle the ASR cases, considering that the company recalled the product and has already begun paying for replacement surgery through Broadspire. Relkin and Lanier said, however, that J&J seems to be gearing up for a real fight over the Pinnacle, which is still on the market. The company’s lead counsel in the ASR MDL is Drinker Biddle & Reath and Tucker Ellis & West; in the Pinnacle MDL it’s Skadden, Arps, Slate, Meagher & Flom.

“Skadden and John Beisner are known to fight to the death,” Lanier said. “Bringing them in was an overt gun-shot blast. The hard part of leadership in the case is that [plaintiffs lawyers] generally compete against each other. So how do you get a group to coordinate to go up against Skadden Arps?”

I left messages with lawyers at Drinker Biddle; Tucker Ellis; and Skadden, as well as a corporate spokesperson at DePuy. Beisner of Skadden declined comment; none of the others got back to me.

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AstraZeneca’s approach to the 28,000-case litigation over its antipsychotic Seroquel has been notable for two things. First, the pharma company was incredibly successful in court. It won pre-trial dismissal of hundreds of state and federal suits blaming Seroquel for causing diabetes and more serious injuries and got a defense verdict in the one Seroquel case that made it to trial. Second, AZ has been notoriously secretive about settling the remaining cases. AZ reached private deals with plaintiffs firms that controlled big Seroquel dockets, offering token amounts of money to plaintiffs in exchange for their lawyers agreeing to drop out of the litigation. The company disclosed settlements in blocks, finally announcing in late July that it had reached agreements in principle to resolve all but 250 Seroquel suits for a total of $647 million — a small fraction of what plaintiffs lawyers once hoped they’d get.

The last big holdout on the plaintiffs side of the litigation was Weitz & Luxenberg, an asbestos powerhouse that had one of the biggest Seroquel dockets in the country. Weitz fought harder and sank more resources into Seroquel cases than any other firm; partner Paul Pennock was still insisting the cases would yield big settlements even after he lost the first (and, as it turns out, only) Seroquel trial, a New Jersey state court case that went to a defense verdict in March 2010.

Weitz apparently capitulated earlier this summer, agreeing to settle its 2,300 remaining cases. And last week, the Seroquel Lawsuit blog posted what purports to be the letter Weitz & Luxenberg sent to its Seroquel clients, announcing the group settlement and explaining the allocation process. According to the letter, AZ offered Weitz & Luxenberg a $92.25 million pot to divide amongst its clients. Clients were given three options: they could sign up for a quick $12,000 payment; they could present the facts of their case to a special master for an individualized payment that could be less than $12,000; or they could reject the offer and endanger the entire settlement, which depends on the participation of 98 percent of Weitz & Luxenberg’s clients.

“We strongly believe [the framework] is fair and reasonable and offers each of our clients the best possible outcome under the circumstances of this litigation,” the posted document said. “Based on public reports regarding settlement programs reached with other plaintiff law firms we are confident that the settlement program outlined below has more favorable terms and for this reason we are recommending your participation.”

I should say up front that Paul Pennock of Weitz & Luxenberg told me the posted letter is not a scanned or photocopied version of the letter his firm sent its Seroquel clients. He also said the posted letter “makes characterizations that are completely inaccurate,” though he said he could not address specifics because he is bound by a confidentiality agreement. “[The letter] is not describing what is happening in our resolution,” Pennock said.

I also, however, spoke with the Seroquel Lawsuit blogger, who insisted on anonymity. He is not a Weitz & Luxenberg client, he said, but received the purported W&L letter from a Weitz client who e-mailed the blogger that he was “disgusted” with the settlement offer.

The blogger told me he developed diabetes and experienced other side effects after he was prescribed Seroquel for “situational depression.” He has been urging Seroquel plaintiffs to reject settlement offers and push ahead with litigation against AstraZeneca because he believes plaintiffs lawyers haven’t adequately represented victims’ interests. “Who are they working for? They’re not working for their clients. That’s a miscarriage of justice,” he said. In his own case, he told me, he signed a retainer agreement with a firm that advertised for Seroquel clients, but then turned those clients’ files over to another firm that handled the litigation. He said he has struggled to obtain information from the second firm, which hasn’t responded to his questions about his own case. “That’s a bad model,” he said. “It encourages this kind of stuff.”

AstraZeneca, meanwhile, didn’t offer a direct response to my question about the authenticity of the posted letter. Spokesman Tony Jewell sent this e-mail comment: “We cannot comment on the financial terms of the settlement as they are confidential.”

The letter certainly reads like it was drafted by lawyers who’ve spent long years litigating Seroquel claims, to little avail. “As you know, we have engaged in a long legal battle with AstraZeneca over the past 6 years,” it said. “Weitz & Luxenberg led the charge for the plaintiffs around the country. AstraZeneca put up a tremendous and expensive defense and they successfully were able to get a large number of cases to be permanently dismissed by the court. Weitz & Luxenberg is the only firm who took a case to trial anywhere in the country As a direct result of the endless and consistent pressure applied by the attorneys at Weitz & Luxenberg, we are happy to report that AstraZeneca has now agreed to participate in a favorable settlement program.”

After detailing the two possible tracks for claimants — fast track to $12,000 and individualized special master track in which payouts will depend on the number of claimants — the letter notes that Weitz will be collecting attorneys fees on the settlements. “The terms of your signed contingency fee agreement will be in effect,” it said.

In a separate post Tuesday, the Seroquel Lawsuit blogger added commentary deriding the letter, Weitz & Luxenberg, and the “secret backroom dealings” in which the firm’s lawyers “were selling our clients down the river.”

“REJECT AstraZeneca’s disgraceful Seroquel settlement offer-demand justice, fairness, and accountability,” the blogger wrote.

Pennock of Weitz & Luxenberg said in response that it’s “a shame. Someone who isn’t even a client is trying to derail something that’s going to make a real difference in people’s lives. I don’t think that’s right.”

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