Trial Magazine

Two things are inevitable: challenges and chances. We all face challenges, and we all get chances in life—but it’s how we respond that counts. Practicing in the pharmaceutical drugs and medical devices arena is no different.

In this area, we have collectively exhaled many times after overcoming hurdles, such as when the U.S. Supreme Court ruled in Wyeth v. Levine that brand-name drug manufacturers would not be immunized from liability for FDA-approved drugs. We should enjoy these moments, but we must be prepared to overcome future challenges while seizing opportunities for change.

Challenges ahead. Johnson & Johnson (J&J) is using the “Texas two-step” to escape accountability for its misconduct surrounding its asbestos-contaminated baby powder, which can cause diseases such as ovarian cancer and mesothelioma. Unless stopped, this abuse of bankruptcy laws will become ubiquitous among corporations looking to evade responsibility. AAJ has led advocacy efforts to oppose it.

Last year, the House Judiciary Subcommittee on Antitrust, Commercial, and Administrative Law held a hearing to examine corporate abuse of the bankruptcy system—including the Texas two-step—and the severe detriment to the victims and survivors of corporate wrongdoing. The bicameral Nondebtor Release Prohibition Act was passed out of the House Judiciary Committee last November. In February, the Senate Judiciary Committee held a consensus hearing to examine the Texas two-step. Just two weeks later a bankruptcy court ruled J&J could move forward with Chapter 11, but the ruling is being appealed. We will keep you informed on this critical matter.

Also, federal rules changes relating to multidistrict litigation (MDL) can make it more difficult for plaintiffs. We have organized working groups of AAJ members to help shape potential federal rules changes on privilege logs and new rules for MDLs. These groups provide feedback to the committees drafting the proposed amendments before the formal comment period to build consensus and avoid controversial proposals.

Some proposed rules changes will be more controversial than others. In January, I testified on the proposed change to Federal Rule of Evidence 702 (expert witnesses), which could enhance the gatekeeping role of the judge, limiting experts and claims. The revised rule comes out this month. (For more, see p. 60.)

Over the past three decades, AAJ has protected and promoted the rights of consumers in these cases by participating as amicus curiae in the Supreme Court and courts across the country. This includes Wyeth v. Levine, Medtronic, Inc. v. Lohr, Daubert v. Merrell Dow Pharmaceuticals, Inc., and cases in which J&J tried to escape accountability. Most recently, AAJ filed a joint amicus brief with the Alabama Association for Justice in Blackburn v. Shire US Inc., which addresses whether under Alabama law a pharmaceutical company’s duty to warn includes a duty to provide instructions about how to mitigate warned-of risks. For more, visit www.justice.org/amicusbriefs.

Effecting change. We must seize opportunities to increase diversity for both women and minorities in MDL leadership. Increasing diversity strengthens our ability to represent our clients. Brilliant MDL lead counsel like Jayne Conroy, Ellen Relkin, Stephanie O’Connor, Brenda Fulmer, and Leigh O’Dell have given me a perfect example of how to be a leader within MDLs.

Data gathered by law.com shows “only 5% of appointments, on average, went to lawyers who identified as ‘non-white’ in MDLs created from 2016 through 2019.” We must address this urgently. But there are signs of coming change: Some MDL judges are proactively working to increase racial diversity within MDL leadership. AAJ and other groups, such as Shades of Mass, are implementing initiatives to promote more diverse lawyers to significant leadership roles.

We all face obstacles, and we all get opportunities in life. Arguably, all success is derived from how we respond to this reality. Thankfully, AAJ is ready to fight the challenges that our practices face, while also grasping a historic opportunity to support more diverse leadership in our trial lawyer community.

Navan Ward Jr. is a principal at Beasley Allen Crow Methvin Portis & Miles in Atlanta and can be reached at navan.ward@justice.org.