PHILADELPHIA (Legal Newsline) - Prominent plaintiffs’ law firm Hagens Berman can’t use the attorney-client privilege to shield information it gave to an outside ethics expert hired to defend the firm against claims it improperly pursued thalidomide claims despite strong evidence they were barred by the statute of limitations.
Continuing with harsh criticism he has dealt out to Hagens Berman over its behavior in the thalidomide litigation, U.S. District Judge Paul S. Diamond said the Seattle law firm had no justification for withholding confidential materials it had shared with Abraham Reich, a Fox Rothschild partner who prepared an expert report defending the firm’s behavior.
The materials included closed-door testimony over how Hagens Bermans sought to cease representing clients after defendant companies complained their claims were filed years too late or plaintiffs had already accepted money over identical claims in the past. While this information normally would be covered by the attorney-client privilege protecting communications between a lawyer and client, Judge Diamond ruled, in this case Hagens Berman had waived the privilege by sharing it with an outside attorney not involved in the case.
“Hagens Berman plainly wishes to use the work product privilege as a shield – protecting its materials from public disclosure – and a sword – using the materials to show that it did not commit misconduct,” the judge wrote after a May 24 hearing. “This is impermissible.”
Hagens Berman was ordered to pay $145,000 in sanctions in 2015 over its behavior in the thalidomide litigation, which it once pursued as a promising new toxic-tort theory. The firm represented clients who claimed they suffered birth defects because of their mothers’ use of the morning-sickness drug in the early 1960s. Defendants including GlaxoSmuithKline soon produced evidence the plaintiffs either lacked any evidence of prenatal exposure, had already settled similar claims previously, or had “discovered” the widely known connection between thalidomide and birth defects many years ago, dooming their claims under the statute of limitations.
Confronted with this reality, Hagens Berman dismissed many of the suits in what a special master described as a “suspicious” arrangement under which Glaxo also dropped its request for sanctions. Then in a further development, the law firm informed the court one of its lawyers had falsified a medical expert’s report to convince a client to drop her claims. Last year, it settled a lawsuit by one disgruntled former client who accused the firm of selling her out to protect its own reputation.
Despite courtroom losses and embarrassing revelations, Hagens Berman continues to fight the sanctions order. When a special master required it to turn over the disputed expert report, the firm filed a “redacted” version that was entirely blacked out, including the letterhead and page numbers.
In its latest attempt to block public disclosure of the document, Hagens Berman argued it hired Reich only to offer expert opinions on its decision to cease representing five thalidomide clients. While acknowledging it is now “adverse” to its former clients, the firm said it had the right to shield confidential communications from the companies it sued. It complained that it only hired Reich at the urging of the judge and shouldn’t be forced to make public otherwise confidential information as a result.
In his order, Judge Diamond said Hagens Berman “confused the law and the record.” It didn’t waive the privilege when it hired Reich, the judge ruled, but when it shared confidential information with the outside expert. The law firm has “done what it could to frustrate” Special Master William Hangley as he investigates why Hagens Berman continued to pursue dozens of thalidomide claims after it was apparent they were barred by the statute of limitations, the judge wrote.
Hangley has “uncovered extremely disturbing facts,” the judge went on, so he has continued to probe into “whether these suits were permissibly initiated and prosecuted.”
The judge ordered the report to be made public with several precisely targeted redactions.