Doe v. AstraZeneca Pharmaceuticals LP et al
Filing
35
ORDER & REASONS: denying 26 Plaintiff's Motion to Disqualify Defendant's Counsel; FURTHER ORDERED that Oral Argument on this matter, scheduled for October 7, 2015, is CANCELED. Signed by Judge Carl Barbier on 9/30/15. (sek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
HARLA ROBERTSON
CIVIL ACTION
VERSUS
NO: 15-438
ASTRAZENECA PHARMECEUTICALS,
LP, ET AL.
SECTION: J(2)
ORDER AND REASONS
Before
the
Court
Counsel of Record
is
a
Motion
to
Disqualify
Defendant’s
(Rec. Doc. 26) filed by Plaintiff, Harla
Robertson (“Plaintiff”), and an Opposition thereto (Rec. Doc.
30)
filed
by
Defendant,
AstraZeneca
Pharmaceuticals,
LP
(“AstraZeneca”). Plaintiff has requested that the Court conduct
Oral
Argument
on
the
instant
motion.
(Rec.
Doc.
27).
Having
considered the motion, the parties’ submissions, the record, and
the applicable law, the Court finds, for the reasons expressed
below, that the motion should be DENIED.
PROCEDURAL HISTORY AND BACKGROUND FACTS
Plaintiff
Defendant
Harla
Robertson
AstraZeneca
inadequate
warning
Louisiana
Products
in
and
originally
February
breach
Liability
of
Act
2015,
filed
suit
asserting
express
warranty
(“LPLA”).
(Rec.
against
claims
for
under
the
Doc.
1.)
AstraZeneca filed a Motion to Dismiss for Failure to State a
1
Claim, which this Court granted. (See Rec. Doc. 15; Rec. Doc.
20.) However, this Court allowed Plaintiff leave to amend her
complaint. (Rec. Doc. 20, at 11, 14.)
In
her
sustained
adverse
Seroquel
XR,
Fumarate,
Seroquel
amended
and
complaint,
effects
their
Fumarate
are
(“Lupin”)
Seroquel
and
use
XR,
whereas
by
of
is
the
Quetiapine
Lupin
Pharmaceuticals,
alleges
Quetiapine
AstraZeneca
manufactured
Teva
her
generics,
respectively.
and
from
Plaintiff
that
Seroquel
and
and/or
Quetiapine
manufacturer
and
of
Quetiapine
Pharmaceuticals,
(“Teva”). 1
Inc.
she
Inc.
Seroquel,
Seroquel XR, and their generics are approved by the U.S. Food
and Drug Administration (“FDA”) for treatment of schizophrenia
and bipolar disorder. (Rec. Doc. 21, at 6-7.)
Plaintiff
alleges
that
she
was
prescribed
Seroquel,
Seroquel XR, Quetiapine, and Quetiapine Fumarate to treat her
bipolar disorder and difficulty sleeping. (Rec. Doc. 21, at 3.)
Plaintiff
further
prescription
including,
1
alleges
medications
“weight
that
she
gain,
as
a
result
sustained
inability
to
a
of
litany
lose
taking
of
weight,
these
injuries
medical
Upon Plaintiff’s motion, on June 10, 2015, this Court dismissed
Plaintiff’s claims against Lupin and Teva, leaving AstraZeneca as the
sole defendant in this matter.
2
complications,
physical
damages,
pain
and
suffering,
severe
abdominal pain, gastrointestinal problems, hyperlipidia, chronic
inflammation
of
increased
panic
increased
the
gall
bladder,
attacks,
increased
crying
spells,
suicidal
[thoughts]
due
chronic
abdominal
emotional
distress,
to
[and]
gall
bladder
anxiety,
removal,
depression,
[thoughts],
pain,
aggravation
suicidal
mental
of
anguish,
pre-existing
conditions.” (Rec. Doc. 21, at 16-17.)
Plaintiff also filed a medical malpractice and breach of
contract action arising out of her use of Seroquel against Dr.
John Hunter, Dr. Paul Marquis, and Ochsner Clinic Foundation
(hereinafter the “Malpractice Defendants”). (Rec. Doc. 30, at
1.) These claims are pending before the Louisiana Medical Review
Panel and the Civil District Court for the Parish of Orleans.
Id. at 1-2. AstraZeneca’s counsel’s law firm, Adams and Reese,
also
represents
September
21,
the
2015,
Malpractice
Plaintiff
Defendants.
has
filed
the
Id.
at
instant
2.
On
motion
seeking disqualification of Adams and Reese on the basis that
the entire firm is subject to a conflict of interest under the
Louisiana Rules of Professional Conduct. AstraZeneca opposed the
motion on September 28, 2015.
3
PARTIES’ ARGUMENTS
Plaintiff
disqualified
asserts
because
that
Adams
a
concurrent
(1)
and
Reese
should
conflict
of
be
interest
exists under Rule 1.7, and (2) its attorneys have duties to
prospective
clients
under
Rule
1.18.
Plaintiff
asserts
that
Adams and Reese attorneys represent the Malpractice Defendants
in a related proceeding in Louisiana state court. According to
Plaintiff,
the
representation
constitutes
a
direct
adversity
conflict, creating a non-consentable conflict of interest.
In
its
opposition,
AstraZeneca
raises
three
arguments.
First, it argues that Plaintiff must meet a heightened standard
to show disqualification is warranted because Plaintiff is not a
current or former client of Adams and Reese. Second, AstraZeneca
argues that Plaintiff waived the right to seek disqualification
because she
waited
an
unreasonable
time
to
file
her
motion.
Finally, AstraZeneca asserts that Plaintiff’s motion fails on
the merits because she alleged only a hypothetical conflict.
LEGAL STANDARD
In
interest
considering
that
would
whether
an
warrant
disqualification,
4
attorney
has
a
conflict
courts
look
of
to
state
and
national
ethical
standards
adopted
by
the
court.
Babineaux v. Foster, No. 04-1679, 2005 WL 711604, *1 (E.D. La.
Mar. 21, 2005) (citing FDIC v. U.S. Fire Ins. Co., 50 F.3d 1304,
1311-12 (5th Cir. 1995)). Accordingly, the instant motion must be
resolved
with
reference
to
the
Local
Rules
for
the
Eastern
District of Louisiana, the American Bar Association Model Rules
of Professional Conduct (“ABA Model Rules”), and the Louisiana
Rules of Professional Conduct. Babineaux, 2005 WL 711604 at *1
(citing Horaist v. Doctor's Hosp. of Opelousas, 255 F.3d 261,
266 (5th Cir. 2001)).
the
Eastern
District
The task is simplified by the fact that
of
Louisiana
has
adopted
the
State
of
Louisiana's Rules of Professional Conduct, which are identical
to the ABA Model Rules in all respects relevant to this motion.
See L.R. 83.2.4E, La. State Bar Art. XVI, ABA Model Rules of
Professional Conduct.
As
numerous
district
courts
have
recognized,
the
party
seeking disqualification bears the burden of proving a conflict.
See,
e.g.,
Companies,
Babineaux,
Inc.,
No.
2005
03-545,
WL
711604,
2003
WL
*2;
Parker
22208569,
*8
v.
Rowan
(E.D.
La.
Sept. 23, 2003); Cramer v. Sabine Transp. Co., 141 F. Supp. 2d
727, 730 (S.D. Tex. 2001). Generally, “courts do not disqualify
an attorney on the grounds of conflict of interest unless the
5
former client moves for disqualification.” In re Yarn Processing
Patent Validity Litigation, 530 F.2d 83, 88 (5th Cir. 1976).
Moreover,
“[a]
disqualification
inquiry,
particularly
when
instigated by an opponent, presents a palpable risk of unfairly
denying
a
party
notwithstanding
popular
the
the
confidence
counsel
of
fundamental
in
the
his
choosing.
importance
integrity
of
of
the
Therefore,
safeguarding
legal
system,
attorney disqualification, particularly the disqualification of
an
entire
firm,
cavalierly.”
is
a
sanction
that
must
not
be
imposed
U.S. Fire Ins. Co., 50 F.3d at 1316.
The Louisiana Rules of Professional Conduct provide that an
attorney may not represent a client if the representation will
subject him to a “concurrent conflict of interest.” La. Rules of
Professional Conduct Rule 1.7(a). Such a conflict exists when
“(1) the representation of one client will be directly adverse
to another client; or (2) there is a significant risk that the
representation of one or more clients will be materially limited
by the lawyer’s responsibilities to another client, a former
client
or
a
third
person
or
by
a
personal
interest
of
the
lawyer.” Id. When a concurrent conflict exists, the lawyer may
still undertake the representation if:
(1) the
will be
lawyer reasonably believes that the lawyer
able to provide competent and diligent
6
representation to each affected client; (2) the
representation is not prohibited by law;
(3) the representation does not involve the assertion
of a claim by one client against another client
represented by the lawyer in the same litigation or
other proceeding before a tribunal; and
(4)
each
affected
client
gives informed
consent, confirmed in writing.
La. Rules of Professional Conduct Rule 1.7(b).
The Rules subject attorneys to similar duties with respect
to
their
prospective
relationship
whose
develops,
interests
are
clients.
an
Even
attorney
“materially
when
cannot
adverse”
no
attorney-client
represent
to
those
a
person
of
the
prospective client in the same or a substantially related matter
if the prospective client revealed information to the lawyer
that
could
be
significantly
harmful
to
him.
La.
Rules
of
Professional Conduct Rule 1.18(b), (c). However, the attorney
can still undertake the representation if:
(1) both the affected client and the prospective
client have given informed consent, confirmed in
writing, or:
(2) the lawyer who received the information took
reasonable
measures
to
avoid
exposure
to
more
disqualifying
information
than
was
reasonably
necessary to determine whether to represent the
prospective client; and
(i) the disqualified lawyer is timely screened
from any participation in the matter and is
apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the
prospective client.
7
La. Rules of Professional Conduct Rule 1.18(d).
One lawyer’s conflict of interest may be imputed to his
entire firm. When an attorney is prohibited from representing a
client under Rule 1.7 (current clients) or 1.9 (former clients),
no other attorney in his firm may represent the client. La.
Rules of Professional Conduct Rule 1.10(a). Similarly, when an
attorney is prohibited from representing a client because he
obtained information from a prospective client, no member of his
firm can represent the client. La. Rules of Professional Conduct
Rule
1.18(c).
However,
Rule
1.18
also
provides
a
screening
mechanism, described above, which allows other attorneys in the
firm to represent the client despite the conflict. La. Rules of
Professional Conduct Rule 1.18(d).
DISCUSSION
Plaintiff
disqualified
asserts
because
that
Adams
a
concurrent
(1)
and
Reese
conflict
should
of
be
interest
exists under Rule 1.7, and (2) its attorneys have duties to
prospective
Plaintiff
clients
bears
the
under
Rule
burden
of
1.18.
As
the
demonstrating
moving
a
party,
conflict
of
interest that warrants disqualification. Plaintiff’s burden is
8
heightened here because she is not a former client of Adams and
Reese.
First, Plaintiff failed to prove a conflict of interest
under Rule 1.7. Adams and Reese represents AstraZeneca in this
matter and the Malpractice Defendants in a related proceeding in
state court. It does not represent AstraZeneca in a case against
the
Malpractice
Defendants,
or
vice
versa.
Thus,
no
direct
adversity conflict exists. Plaintiff also failed to demonstrate
a
material
AstraZeneca
limitation
and
the
conflict.
She
Malpractice
merely
Defendants
alleged
have
that
“potential
claims” against each other. (Rec. Doc. 26-3, at 2.) Plaintiff
failed to allege any facts suggesting that Adams and Reese would
be
materially
AstraZeneca
or
limited
the
in
its
Malpractice
representation
Defendants.
of
either
Plaintiff
alleged
that the state-court claim may be removed to federal court and
consolidated
with
hypothetical
at
this
this
case,
stage
but
of
this
the
conflict
litigation.
is
Id.
merely
at
4.
Moreover, even if a 1.7 conflict existed, such a conflict is
curable. 2 Thus, disqualification is not warranted.
2
Adams and Reese informed AstraZeneca of its representation of the
Malpractice Defendants, and AstraZeneca waived any potential conflict
of
interest.
Counsel
offered
to
provide
9
the
waiver
for
in-camera
Second, Rule 1.18 does not apply in this case. Rule 1.18
outlines
Adams
an
and
attorney’s
Reese
Defendants
duties
undertook
before
Plaintiff
to
prospective
representation
filed
the
of
clients.
the
instant
Here,
Malpractice
motion.
The
Malpractice Defendants are current clients of Adams and Reese,
not prospective clients. Thus, Plaintiff failed to show that
Rule 1.18 applies. Because Plaintiff failed to show a conflict
under Rule 1.7 or 1.18, she also failed to demonstrate that any
conflict was imputed to the entire firm under Rule 1.10.
Because
unnecessary
Plaintiff’s
for
this
motion
Court
to
fails
on
consider
the
merits,
AstraZeneca’s
it
is
waiver
argument.
CONCLUSION
Accordingly,
review
by
this
Court.
AstraZeneca
did
not
mention
whether
the
Malpractice Defendants also consented to the potential conflict of
interest. However, because this Court finds that Plaintiff failed to
prove a conflict, proof of consent is not necessary to decide this
motion.
10
IT
IS
HEREBY
ORDERED
that
Plaintiff
Harla
Robertson’s
Motion to Disqualify Defendant’s Counsel of Record (Rec. Doc.
26) is DENIED.
IT IS FURTHER ORDERED that Oral Argument on this matter,
scheduled for October 7, 2015, is CANCELED.
New Orleans, Louisiana this 30th day of September, 2015.
CARL J. BARBIER
UNITED STATES DISTRICT COURT
11
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