Judicial Notice (03.04.23): Sometimes You Just Need A Gavel

A federal judge under investigation, more Biglaw layoffs, and other legal news from the week that was.

(via Getty Images)

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Hola from Cartagena, Colombia. My husband Zach and I here for a wedding, which took place last night and was amazing, and we’ve also been enjoying the chance to explore the beautiful Old City.

My week leading into this trip was unexciting. We took Harlan to the dentist, and his teeth are healthy, unlike mine (my dentist jokes that I paid for his office renovation). Together with my podcast co-host Zach Sandberg (there are a lot of Zachs in my life), I recorded a new episode of Movers, Shakers & Rainmakers; thanks to Steven Rushing for joining us to discuss the D.C. legal market.

I wasn’t sure I’d get to Judicial Notice, since I’m supposed to be on vacation, but I couldn’t help myself. There was a fair amount of exciting legal news, to which I now turn. (This edition might be pithier than usual—perhaps a good thing—as well as more typo-ridden than usual, since I’m not making Zach serve as my editor while he’s on vacation.)

Lawyers of the Week: the attorneys on both sides of Poppell v. Cardinal Health, Inc.

For almost a month, jurors in Glynn County, Georgia, heard heartbreaking testimony about the harm that opioid addiction has inflicted on both individuals and families. Suing under the Georgia Drug Dealer Liability Act, almost two dozen individual plaintiffs sought to hold three pharmaceutical wholesale distributors—Cardinal Health Inc., McKesson Corp., and J.M. Smith Corp.—liable for the suffering experienced by the plaintiffs and their families because of opioids. It was an important, closely watched trial, since it was the first jury trial in a case brought by individual victims of the opioid epidemic (as opposed to a governmental entity) against opioid distributors or manufacturers.

After deliberating for a day and a half, the jury returned a verdict of no liability on Wednesday afternoon. The defendants did not dispute the horrors of opioid addiction and the opioid epidemic, as well as the incredible harm that opioids have inflicted upon victims and their families. But the defendants’ lawyers successfully argued that responsibility for those harms lay elsewhere—with manufacturers, doctors, pharmacists, and individual users.

It’s a major win for the defendants’ lawyers—from Covington & Burling and HunterMaclean for McKesson, Williams & Connolly for Cardinal, and Fox Rothschild for J.M. Smith. A contrary ruling would have “open[ed] a massive new front in opioid litigation despite multibillion-dollar settlements covering harms suffered by communities,” as noted by Law360.

At the same time, the plaintiffs’ lawyers, from Griffin Durham and Bondurant Mixson, also deserve credit. Although their clients did not prevail, their powerful stories were shared with a nationwide and even worldwide audience. As John Floyd of Bondurant Mixson told Law360, “Obviously, we're very disappointed with the outcome. But I think our clients' story was told, and I think it was told well, and I think that was important. And I'm incredibly grateful to my co-counsel for the skill with which they did that.”

Other lawyers in the news:

• Also on Wednesday, Attorney General Merrick Garland testified for four hours before the Senate Judiciary Committee. It was a contentious, politically charged hearing, and whether you see Garland as a hero or antihero will likely depend on your political priors. (Yes, he managed to slip in references to Taylor Swift, of whom he’s a huge fan.)

• Also jousting with Republican politicians is prominent D.C. lawyer Abbe Lowell, now representing Hunter Biden. Having worked for Ivanka Trump and Jared Kushner, Lowell is no stranger to being a lawyer for the loathed.

• In news of lawyers behaving badly, Judge Lewis Liman (S.D.N.Y.) ordered lawyers from Sim & DePaola, a Queens-based plaintiffs’ firm, to take four hours of continuing legal education about federal practice and procedure, after they repeatedly blew case deadlines. Ouch.

• And Judge Max O. Cogburn Jr. (W.D.N.C.) condemned the “egregious” and “unprofessional” conduct of Taylor English partner Nathan A. White, who was accused of calling his opposing counsel, L. Michelle Gessner of GessnerLaw PLLC, a “worthless human” and a “piece of s**t.” But Judge Cogburn declined to impose sanctions, concluding the incident was an “anomaly” that reflected White’s “very stressed mental state” after a recent emergency-room visit.

In memoriam:

• J.L. Pottenger Jr., the Nathan Baker Clinical Professor of Law at Yale Law School, passed away at 73. I never had the pleasure of working with Jay during my own time in the landlord-tenant clinic, but I heard so much about him, since he was renowned as both a lawyer and a teacher.

• Former U.S. senator James Abourezk (D-S.D.), who practiced law in Rapid City, South Dakota, and Washington, D.C., before and after his single term in the Senate, passed away at 92.

May they rest in peace.

Judge of the Week: Judge Roger Benitez.

On Monday, my former colleague Joe Patrice broke a deeply disturbing story at Above the Law about the conduct of Judge Roger Benitez (S.D. Cal.) during a hearing for defendant Mario Puente’s violation of supervised release. Puente explained to the court that he wanted to move out of San Diego, where he was exposed to some bad influences, and expressed the concern that his 13-year-old daughter was hanging out with peers who might “lead her into the same path that I went down.” You won’t believe what happened next (according to the sentencing memorandum for the resentencing that took place before a different judge after Judge Benitez’s conduct in this case, which led to a reassignment).