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