Madison - St. Clair Record

Friday, April 10, 2020

When plaintiff lawyers outsmart themselves

Our View

By The Madison County Record | Feb 18, 2020


President Trump isn’t the only chief executive plagued by leakers. There are plenty of leakers wreaking havoc in the private sector, too, in the form of disgruntled employees, opportunistic competitors, and adversarial attorneys.

By leaking sensitive information (true or false) about targeted defendants, plaintiff attorneys can generate public support for their lawsuits, poison jury pools, and exert enormous pressure on defendants to settle for fear of further damage to reputation and financial status.

Whatever their motivation, the lawyers at asbestos firm Simmons Hanly Conroy sought to profit somehow from a timely leak when they released to the Reuters news service a videotaped deposition of Johnson & Johnson CEO Alex Gorsky. They really stepped in it this time, though, because the deposition in question was under a protective order.

The deposition, in which the J&J CEO affirmed his belief that the company’s Baby Powder is completely safe and contains no asbestos, was released to Reuters after reports that the Food and Drug Administration had detected minute amounts of asbestos in the powder during recent tests. Reuters headlined its Oct. 22 article, featuring excerpts from the deposition: “Johnson & Johnson CEO testified Baby Powder was safe 13 days before FDA bombshell.”

Bad press, and more bad press. Having to recall 33,000 bottles of powder didn’t help the company’s image either – or its stock value – even though subsequent testing by outside labs found no trace of asbestos. By the time that reassuring announcement was made, the damage had been done.

Alas for Simmons Hanly Conroy, their gotcha! moment didn’t last long.

J&J moved for sanctions, arguing that plaintiff lawyers abused the discovery process “to collect source material for an extrajudicial media campaign” that could prejudice jury pools in future trials.

Concluding that the unauthorized release of the video deposition was “frivolous and done to harass the defendants,” Manuel Mendez, chief judge of New York’s specialized courts for asbestos lawsuits, sanctioned the firm.

It deserves to be sanctioned. It should also be held accountable for the financial damage done to a reputable, successful American company.

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