Monday, April 18, 2005
Court of Appeal Orders Lichtman’s Removal From Vioxx Cases
By KENNETH OFGANG, Staff Writer/Appellate Courts
The Court of Appeal for this district Friday ordered the removal of Los Angeles Superior Court Judge Peter Lichtman from the coordinated cases involving the anti-inflammatory drug Vioxx.
Given the disclosure that Lichtman himself used the drug, Presiding Justice Joan Dempsey Klein wrote in an unpublished opinion for Div. Three, “a reasonable person would hold a strong clear realistic doubt concerning the ability of the coordination judge to remain impartial.”
The panel granted a writ of mandate sought by Merck & Co., Inc., the maker of the drug. The justices had signaled their intent to grant the writ Feb. 2 when they issued an order, pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, saying that reasonable minds could not “differ on the undeniable appearance of impropriety arising from Judge Peter D. Lichtman’s involvement in the proceeding.”
The order barred Lichtman from hearing any further proceedings in the cases pending issuance of the writ. A response filed by Superior Court counsel Frederick Bennett argued that Merck failed to seek Lichtman’s ouster from the cases in a timely manner.
Vioxx was removed from shelves last September in light of findings that it substantially boosted the prospects of heart attacks or strokes. Over 380 plaintiffs had already filed suits alleging various ill effects from the drug, and those cases were ordered coordinated and assigned to Lichtman in 2002.
Merck challenged Lichtman for cause Jan. 11 of this year, citing comments made by the judge at status conference last October that the drug was a “very effective medication” but that he had “cleaned out” his medicine cabinet following its withdrawal.
Based on that comment, Merck’s lawyers said in their motion, they began to suspect that Lichtman had used the drug, but that they did not know that for certain until a meeting with the judge and plaintiffs’ counsel on Dec. 16.
The judge struck the statement of disqualification three days after it was filed. He also responded that because he liked the drug and had decided not to join the suit, “[t]here is simply no doubt that this court can be fair, impartial and unbiased.”
But Klein, writing Friday for the Court of Appeal, criticized the trial jurist for not disclosing the conflict on the record and for proceeding in the absence of an on-the-record waiver.
“Even though Judge Lichtman ëbelieves’ he recalls he disclosed his use of Vioxx during [the February 2003 initial status conference], the transcript of that hearing contains no reference to his use of Vioxx and no counsel present at the proceeding states to his or her personal knowledge such a disclosure was made.”
Nor, Klein went on to say, was any such disclosure made at any of five hearings held between May 2003 and December of last year.
The jurist wrote:
“In view of the absence of an on the record disclosure of Judge Lichtman’s use of Vioxx and the allegations regarding the unknown potential future medical implications resulting from ingestion of Vioxx, there clearly is a strong, clear and reasonable basis to doubt his ability to be impartial. This is particularly true since Judge Lichtman was using Vioxx when he was initially assigned to the case and continued to use it for almost two years while presiding over the case and stopped using it only after the medication was withdrawn from the market.”
The presiding justice went on to say that regardless of Lichtman’s statement that he does not intend to participate in the litigation, the possibility remains that “issues to be resolved in this litigation may have a direct, substantial and personal impact on Judge Lichtman.”
Given that possibility and applying the reasonable person standard rather than looking to the judge’s subjective view of his own impartiality, disqualification is clearly required “irrespective of whether [Lichtman] is actually impartial.”
Attorneys on appeal were Michael K. Brown and Thomas J. Yoo of Reed Smith and Norman C. Kleinberg and Theodore H.V. Mayer of Hughes Hubbard & Reed for Merck; Thomas V. Girardi and James O’Callahan of Girardi & Keese, Tina Nieves of Gancedo & Nieves, Mark P. Robinson Jr. and Sharon J. Arkin of Robinson, Calcagnie & Robinson, and Phllip C. Bourdette and Miriam R. Bourdette for the plaintiffs.
The case is Merck & Co., Inc. v. Superior Court (Adair), B180613.
Copyright 2005, Metropolitan News Company