Nathan Bass Dec. 14, 2012, 8:15pm

ATLANTIC CITY (Legal Newsline) - Attorneys for Roche Laboratories have filed a motion for recusal with Judge Carol E. Higbee of the Superior Court of New Jersey, Atlantic County Division, over which the Judge presides.

Michael R. Griffinger, of Gibbons P.C., attorneys for defendants Hoffmann-La Roche Inc. and Roche Laboratories Inc., filed the motion Dec. 11 after Roche's Nov. 7 request that the Supreme Court reassign the Accutane Multicounty Litigation was declined and the Court invited Roche to file a recusal motion instead.

Griffinger submitted a Memorandum Of Law In Support Of Defendants Motion To Recuse brief with the motion to recuse.

According to the brief, the first Accutane cases were filed in Judge Higbee's court in 2003. The litigation was designated as a Mass Tort - now designated as Multicounty Litigation - in May 2005.

"The MCL now has more than 7,700 cases pending."

The brief states that of the seven trials overseen by the Court, "[t]he first three trials led to judgments for Plaintiffs that have each been reversed and remanded - two for retrial and the third for entry of judgment for Roche.

"The verdicts from another trial ... are now on appeal. Another trial ... resulted in a mistrial ... [t]he verdicts from the remaining two trials ... are still pending before the Court on post-trial motions.

"In this brief," Griffinger writes, "Roche documents the conduct and actions by the Court that demonstrate both bias against Roche and the appearance of that bias.

"The most distressing demonstration of this bias appears from two recent incidents.

"First, the Court's interruption of an Accutane jury trial to appear on a panel in New Orleans with Plaintiffs' lead counsel, during which the Court impermissibly commented on the MCL cases.

"Second, the Court on its own initiative embarked on a procedure that was extraordinary and unprecedented, subjecting a Roche trial attorney to a surprise under oath examination by telephone, first by the Court and then by Plaintiffs' counsel - the same counsel who would appear with the Court at the New Orleans conference."

The brief states that Higbee appeared on a panel at the annual DRI conference in New Orleans with Plaintiffs' lead trial counsel, David Buchanan, on May 10, 2012.

This appearance occurred in the middle of Buchanan's trial against Roche which the Court interrupted in order to accommodate Buchanan and the Judge's attendance.

Roche, according to the brief, was put in the untenable position of deciding whether to object to the trial interruption "knowing that doing so might alienate the Court both for the ongoing trial and in the thousands of other pending cases."

Roche chose not to object based upon "its expectation that the Court would not comment on this litigation or issues relevant to it."

"Contrary to Roche's expectations - and, more importantly, contrary to the Code and Guideline- the Court directly addressed this litigation and legal issue relevant to it."

The brief goes on to list numerous alleged statements and the violations that resultantly occurred.

Regarding the second of the "two recent incidents" that the brief refers, the Court allegedly "took the unprecedented step of putting Roche's lawyer under oath, with only a few minutes notice, to be questioned about the document the expert had obtained" in the midst of Roche's attempt to have a particular study put into evidence.

The Court then allowed Buchanan to cross-examine the Roche attorney. "That the Court perceived some form of potential wrongdoing that warranted such extraordinary proceedings betrays a fundamental partiality against Roche and its attorney."

The brief alleges that this incident occurred nine days before the Judge and Buchanan would appear on the New Orleans panel together.

The thirty nine page brief lists numerous other examples of "the Court's bias against Roche and its witnesses experts, and lawyers" and notes that the Court has already rejected the claim of bias with the statement, "I don't think that exists in this litigation."

"[W]hile an objective review of the facts demonstrates bias against Roche and for plaintiff, Roche need not establish actual bias," the brief asserts, "all that is required for recusal is a reasonable perception of partiality ... the record amply establishes an appearance of partiality."

The brief concludes, "In sum, the Court should recuse itself from this MCL because its conduct now demonstrates an increasing appearance of bias, if not outright bias, against Roche.

"The Court's views against Roche have become so severe that the Court appears to be issuing decisions based on bias rather than legal principle. These are circumstances under which the Court's impartiality can reasonably be questioned and which objectively warrant recusal."

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