Recently the New Jersey Law Journal, The Legal Intelligencer and Law.com published articles noting that the leadership in multidistrict litigation (MDL) is traditionally dominated by men. Law.com said that Hunter Shkolnik, of New York’s Napoli Shkolnik, acknowledged a “big problem in leadership” of MDLs in general when it comes to diversity in gender and race.
After the article was published, Shkolnik would be appointed to the Plaintiffs’ Steering Committee for the Taxotere (Docetaxel) Products Liability Multidistrict Litigation (MDL) in the United States District Court, Eastern District of Louisiana along with Karen Barth Menzies and Abby E. McClellan ,who were also interviewed. McClellan “noted increasing concern that MDL leadership was dominated by ‘older white men,’” the article stated.
There was specific concern in this Taxotere MDL about female involvement in the litigation, as some, like Barth Menzies, see the cases as closely related to women’s health issues. Taxotere is a chemotherapy drug that is used to treat breast cancer as well as other cancers such as lung, prostate, stomach, and head and neck cancer. The manufacturer of the drug, Sonafi SA, is accused of illegally, untruthfully marketing Taxotere as superior to similar competing drugs, while concealing from American consumers that the drug caused permanent hair loss.
McClellan wrote that there were only a handful of women being considered for leadership for the MDL and they “should be expanded and diversified to better reflect both the lawyers pursuing these cases and the victims they represent.” In November the court appointed 14 attorneys from across the country to the Plaintiffs’ Steering Committee; five of the 14 appointed are women.
Another MDL that has recently chosen leadership and centers on women’s issues is the Johnson and Johnson talc federal multidistrict litigation (MDL) in the District of New Jersey. Johnson and Johnson’s talc-containing products, such as Johnson’s Baby Powder and Shower to Shower body powder allegedly cause ovarian cancer when used for feminine hygiene. The company is accused of continuing to market the product for such use and failure to warn consumers when it had been aware of this risk for decades.
According to the New Jersey Law Journal, U.S. District Judge Freda Wolfson of the District of New Jersey appointed two women, Leigh O’Dell and Michelle Parfitt, as Co-Lead Counsels. Six women and 12 men will serve on the plaintiffs’ leadership team that they will lead.
“The court should make sure there is appropriate diversity, but should also make sure the people being appointed deserve the position as well,” Shkolnik told Law.com.
O’Dell, a principal at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala., told the New Jersey Law Journal that having women in the leadership position wasn’t by design. “The more salient point is our firms have been involved in the litigation for years and really have been integral part of the advancement of the case,” she said.
In three talc trials held in Missouri earlier this year, Beasley Allen principal Ted Meadows was lead plaintiffs attorney. Three separate juries awarded a total of $197 million in damages to plaintiffs and their families in the cases, finding Johnson and Johnson’s talc products responsible for contributing to the development of their ovarian cancer.
Parfitt, senior partner at Ashcraft & Gerel in Alexandria, Va., was chosen, according to O’Dell, because of her years working on talc science and with the experts in the litigation.
The talc MDL was one of two major appointments of women in the past week. U.S. District Judge Cynthia Rufe of the Eastern District of Pennsylvania appointed two women as co-lead counsels in an antitrust case a few months after appointing a woman as lead counsel for the defense.
The Legal Intelligencer quoted Dana Alvare, a research fellow at the Sheller Center, who has been studying the appointment of women and diverse attorneys on steering committees and as lead counsels over the past five years. She said she has not seen two women appointed as lead counsel on an MDL in her research.
“It’s extremely rare for there to be a female-only lead, either joint or single,” Alvare said. “It is a really big deal…”