PHILADELPHIA (Legal Newsline) - Prominent plaintiff law firm Hagens Berman has been sued by more of its clients who claim they were shoved aside by their lawyers after serious ethical concerns emerged in how the firm handled lawsuits over the banned drug thalidomide.
Five plaintiffs who sued GlaxoSmithKline and other drug makers, blaming their birth abnormalities on exposure to thalidomide, now accuse Hagens Berman in Philadelphia federal court of blocking an investigation into how their claims were mismanaged and trying to mislead them into dropping their cases. As a result, they claim, “the named plaintiffs are trapped in a years-long limbo with respect to their birth injury claims to their detriment.”
Hagens Berman could make the same complaint as it enters the second decade of a drama that began when it formed a partnership with lawyers who thought they had discovered a promising new avenue for mass-tort litigation. Hagens Berman recruited clients who claimed they suffered birth defects because their mothers took thalidomide in the early 1960s. While the morning-sickness drug was never approved by the Food and Drug Administration for use in this country, manufacturers distributed thousands of samples to doctors in clinical trials before it was found to cause birth defects.
Defendants including GlaxoSmithKline 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. The firm was ordered to pay $145,000 in sanctions over its conduct in 2015 but continues to fight the sanctions and the actions of the special master, behavior the new plaintiffs claim is causing “damages to their mental, physical and financial health.”
The lawyers behind this latest case are Nicholas Boebel and Matthew Weisberg of Minneapolis. They earlier represented former Hagens Berman client Carolyn Sampson, who made similar allegations and settled her case in 2020. As with Sampson’s case, the new plaintiffs, including Mark Harrellson and John Marshall, are seeking compensation for mental anguish, disgorgement of Hagens Berman’s benefits from delay, and punitive damages.
The lawsuit states that in October 2014 Hagens Berman sent a letter to clients urging them to drop their claims against Glaxo because it didn’t produce thalidomide when their mothers could have ingested it. The letter mentioned, but didn’t fully explain, that Glaxo would withdraw its sanctions claims against Hagens in exchange for being dismissed from the litigation.
Harrelson and the other plaintiffs said the letter was misleading because it suggested they could still recover money from other defendants when Glaxo was the primary target, and it downplayed the advantage to Hagens if they dismissed their claims against Glaxo.
“GSK surrendering its ability to recover sanctions against Hagens Berman represented a multimillion-dollar windfall for the law firm while the thalidomide plaintiffs would receive nothing,” the lawsuit says.
The special master shifted his investigation into whether clients were properly informed of their rights and in 2015 ordered $145,000 in sanctions against the firm. Hagens Berman has fought back hard every step of the way, filing mandamus appeals to halt the probe, filing procedural motions to delay the process and withholding information.
In May, the special master criticized Hagens Berman for trying to shield an ethics opinion it commissioned from the Fox Rothschild law firm and first filed with the court as an entirely blacked-out document. While some of the information would normally be covered by the attorney-client privilege, the special master, said in this case Hagens Berman had waived the privilege by sharing it with an outside attorney not involved in the case.
That report, now available on the public docket, says Hagens Berman attorneys carefully vetted claims before agreeing to represent thalidomide clients but were forced to abandon cases when more evidence emerged challenging the theory they had suffered birth injuries from the drug. One client, for example, had a child and grandchild with the same birth abnormalities, suggesting a genetic cause. Another was born in Cuba and there was no evidence the drug was distributed there.
In his lawsuit, Harrelson says the vetting process was a sham.
“The analysis was partial, incomplete, and largely irrelevant,” the lawsuit states. Hagens Berman “fundamentally failed to investigate the scientific facts and legal issues and further failed to perform any analysis linking those scientific facts and legal issues to individual claims.”