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Johnson v. SmithKline Beecham Corp.

United States District Court, E.D. Pennsylvania

May 19, 2015



Paul S. Diamond, J.

Between 2011 and 2014, fifty-two Plaintiffs brought suit alleging that thalidomide-a morning sickness drug manufactured and distributed by Defendants-caused them to suffer severe birth defects in the 1950s and 1960s. Special Master William Hangley seeks to interview thirty-two of the Plaintiffs to determine whether they consent to the proposed termination of their claims. Although Mr. Hangley has not yet asked a single question-indeed, no interviews have even been scheduled-Plaintiffs’ counsel, Hagens Berman Sobol Shapiro LLP, objects, threatening to seek mandamus relief unless, by May 18, I either prohibit the interviews altogether or limit the questions Mr. Hangley may ask to those Hagens Berman has authorized. (Doc. No. 502.) Hagens Berman raises this objection only after Mr. Hangley has recommended the imposition of sanctions because of the firm’s dishonesty and bad faith-a recommendation I have accepted. (Doc. No. 414); Johnson v. SmithKline Beecham Corp., 2015 WL 1004308 (E.D. Pa. Mar. 9, 2015). Because Hagens Berman’s objections to Mr. Hangley’s proposed interviews are premature or otherwise meritless, I will overrule them.


I have previously described the extensive procedural history of this litigation. Johnson v. SmithKline Beecham Corp., 2014 WL 5285943, at *1-5 (E.D. Pa. 2014 Oct. 16, 2014); Johnson v. SmithKline Beecham Corp., 2015 WL 1476386, at *1-2 (E.D. Pa. Apr. 1, 2015). I will set out here the events germane to Hagens Berman’s objections to Mr. Hangley’s Orders.

Plaintiffs Invoke Equitable Tolling

In ten separate state court actions, Plaintiffs brought negligence, negligent design, and related claims. Defendants removed to this Court, where the cases were assigned to several judges, including me. After the Third Circuit upheld my refusal to remand, all the cases were consolidated before me for pretrial purposes. (Doc. No. 81); Johnson v. SmithKline Beecham Corp., 724 F.3d 337, 340 (3d Cir. 2013).

Anticipating Defendants’ motions to dismiss, Plaintiffs pled with particularity that Defendants’ fraudulent concealment and, in some cases, the discovery rule tolled the two-year limitations clock. Accordingly, I denied Defendants’ dismissal motions in September 2013, noting that “I cannot determine, at this early stage in the litigation, the viability of Plaintiffs’” tolling allegations. (Doc. No. 92.)

Discovery Misconduct

Defendants then repeatedly and unsuccessfully sought to learn when each Plaintiff knew or reasonably should have known that thalidomide had caused his or her birth defects. As I have described, Plaintiffs provided no responses, misleading “collective” responses, or absurd responses to Defendants’ discovery requests. See Johnson, 2014 WL 5285943, at *3-4; Johnson, 2015 WL 1004308, at *1-2. By June 2014, it was apparent that Plaintiffs had violated my discovery orders and had failed to produce highly probative evidence-including online posts that some Plaintiffs have known for decades that thalidomide caused their birth defects. (Doc. No. 232.) Accordingly, with the Parties’ agreement and in accordance with Rule 53, on June 26, 2014, I appointed William Hangley as Special Discovery Master. (Doc. No. 256); Fed.R.Civ.P. 53(b)(1).

Defendants Threaten Sanctions

As discovery proceeded, it became apparent that many of Plaintiffs’ cases were badly flawed. As Mr. Hangley explained,

[D]efendants learned that several of the [P]laintiffs could not sue for the simple reason that they had already done that once; indeed, in at least one instance, a
[P]laintiff was continuing to receive monthly settlement payments from a
[D]efendant it was suing a second time for the same alleged tort.

(Doc. No. 414 at 6.)

On March 26, 2014, Defendants GlaxoSmithKline and Grünenthal urged Hagens Berman “to undertake a careful review of the claims it made in all these cases.” (Doc. No. 310, Exs. 10-11.) GSK and Grünenthal offered to bear their own costs for cases Plaintiffs agreed to dismiss before April 11. (Id.) For cases “which remain pending after that date, ” however, GSK and Grünenthal “reserved [their] right[s] to seek both costs and attorneys’ fees under all applicable rules and statutes.” (Id.) Hagens Berman did not agree to dismiss any case before April 11, 2014, and the Parties proceeded with “massive” deposition discovery. (Doc. No. 414 at 8.)

In July and August, 2014, GSK and Grünenthal filed Motions for Summary Judgment against three Plaintiffs. (Doc. Nos. 258, 281, 310.) Invoking 28 U.S.C. § 1927 and the Court’s inherent authority, they also asked me to sanction Hagens Berman for the firm’s bad faith prosecution of these obviously time-barred matters. With the Parties’ agreement, I referred these Motions to Mr. Hangley. (Doc. No. 316.)

Hagens Berman Takes Its Leave

With Mr. Hangley’s appointment, it became apparent that Plaintiffs were going to be compelled to produce evidence to support their equitable tolling and fraudulent concealment allegations. In fact, no such evidence exists. Around this time, Hagens Berman began seeking to dismiss cases or to withdraw as counsel. On July 25, 2014, Hagens Berman submitted stipulations of voluntary dismissal in two cases. (Doc. Nos. 284, 285.) On August 1, 2014, the firm asked to dismiss a third case and moved to withdraw from representing another Plaintiff. (Doc. Nos. 301, 302.) On August 14 and 15, 2014, Hagens Berman sought to dismiss four more cases. (Doc. Nos. 317, 319, 320, 321.) Between August 21 and 29, 2014, Hagens Berman moved to withdraw from two cases and asked me to dismiss one. (Doc. Nos. 331, 342, 343.) Two more voluntary dismissals came on September 26, 2014 and October 14, 2014. (Doc. Nos. 360, 368.) In sum, between the time I appointed Mr. Hangley to oversee discovery-when it became apparent that each Plaintiff would have to disclose when he or she knew or should have known that thalidomide caused his or her injuries-and October 14, 2014, Hagens Berman sought to dismiss ten cases and moved to withdraw from three others. In asking to ...

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