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McDaniel v. Daiichi Sankyo, Inc.

United States District Court, D. New Jersey, Camden Vicinage

August 15, 2018

DAIICHI SANKYO, INC., et al., Defendants.


          JOEL SCHNEIDER, United States Magistrate Judge.

         This matter is before the Court on the “Motion to Withdraw” (“motion”) [Doc. No. 6][1] filed by plaintiff's counsel, Thomas Cartmell, Esquire, Jeffrey Kuntz, Esquire, and David DeGreeff, Esquire, on behalf of their law firm Wagstaff & Cartmell, LLP (hereinafter collectively referred to as “counsel”). No. opposition to the motion has been filed. The Court recently held oral argument. Counsel seeks to withdraw because the case is too expensive now that his client has chosen to litigate rather than settle. For the reasons to be discussed, counsel's Motion to Withdraw is DENIED.


         Because the Court writes primarily for the benefit of the parties and the parties are familiar with the background of this matter, only the most salient facts will be set forth. This case is part of a multi-district products liability litigation (“MDL”) wherein individual plaintiffs, including Terry McDaniel, brought suit against Daiichi Sankyo Inc., Daiichi Sankyo U.S. Holdings, Inc., and Forest Laboratories, Inc. alleging adverse drug reactions to the olmesarten family of pharmaceutical drugs developed and marketed by defendants. Approximately 2, 000 related lawsuits are pending before the Court. On or about August 1, 2017, defendants and a committee of plaintiffs' counsel reached an agreement in principal to settle. The agreement was supplemented in 2018. The parties' settlement set up a detailed voluntary settlement program whereby each participant was required to opt in in order to participate. Plaintiff is one of only five claimants who have not elected to participate in the voluntary settlement program.

         On June 6, 2018, the Court issued an Order requiring any plaintiff who had not enrolled in the settlement program by the enrollment deadline to appear with counsel before the Court on July 24, 2018. Plaintiff did not enroll in the settlement by the deadline. Accordingly, he appeared with counsel on July 24, 2018. At that hearing, plaintiff informed the Court he did not want to enroll in the settlement program but requested to proceed with his claims individually. The Court offered plaintiff additional time to think about his decision, requiring plaintiff to inform the Court of his final decision by July 30, 2018. On July 30, plaintiff informed the Court of his intent to enroll in the settlement program. [Doc. No. 9]. However, the following day, counsel informed the Court plaintiff changed his mind and was declining to enroll in the settlement program. [Doc. No. 10].

         Counsel for plaintiff filed this Motion to Withdraw stating that it is their belief that entering into the settlement program is in the best interest of the plaintiff. Brief in Support of Motion (“Mot.”) [Doc. No. 6-1] at 2. However, counsel acknowledges plaintiff has the right to move forward with his claims against their recommendation. Id. Nevertheless, counsel contends they should be permitted to withdraw primarily because plaintiff's decision to litigate presents a financial burden on counsel. Id.


         Pursuant to L. Civ. R. 102.1, unless other counsel is substituted, withdrawal of counsel requires leave of court. Rusinow v. Kamara, 920 F.Supp. 69, 71 (D.N.J. 1996). In deciding whether to permit an attorney to withdraw, the Court should consider: “(1) the reasons why withdrawal is sought; (2) the prejudice withdrawal may cause to other litigants; (3) the harm withdrawal might cause to the administration of justice; and (4) the degree to which withdrawal will delay the resolution of the case.” Id. Ultimately, whether to permit withdrawal is within the Court's discretion. Id. at 71. Further, the Court may refuse to permit an attorney to withdraw despite a showing of good cause. Haines v. Liggett Grp., Inc., 814 F.Supp. 414, 422-23 (D.N.J. 1993) (citing RPC 1.16(c)).

         Here, counsel seeks withdrawal pursuant to New Jersey Rules of Professional Conduct (“RPC”) 1.16(b)(1), (6) and (7). Counsel argues: (1) counsel's withdrawal will not have a material adverse effect on plaintiff; (2) requiring counsel to continue to represent plaintiff would place an undue financial burden on counsel; and (3) the retainer agreement between counsel and plaintiff permits counsel to discontinue their representation. After evaluating all relevant factors, the Court finds counsel's motion must be denied.

         A. Prejudice to Plaintiff

         Pursuant to RPC 1.16(b)(1) a lawyer may not withdraw from representation unless “withdrawal can be accomplished without material adverse effect on the interests of the client.” Counsel contends “withdrawal as counsel for plaintiff can be accomplished without material adverse effect on his interests.” Mot. at 1. Counsel points out the case has not been set for trial and discovery has not been completed. Id. Counsel avers the case is in the early stages, therefore, plaintiff “has time to find a new lawyer, and a new lawyer could easily take this case over without any delay to get up to speed.” Id. Accordingly, counsel argues their withdrawal would not prejudice plaintiff.

         The Court disagrees with counsel and is convinced plaintiff will be substantially and materially prejudiced if counsel is permitted to withdraw. It is doubtful plaintiff will be able to retain new counsel at this stage in the litigation. Although trial has not been scheduled and discovery is not complete, this MDL has been ongoing since 2015. Because a detailed settlement program has been agreed to, and plaintiff is one of only five plaintiffs who elected to litigate rather than settle, it is almost certain plaintiff will not be able to find counsel willing to represent him. This is a complex drug liability case that will require substantial resources to prosecute. Plaintiff does not have the resources to fund the litigation. Even counsel acknowledges the value of plaintiff's claim is not enough to pay for the necessary litigation expenses to pursue the case. Given this situation, plaintiff will not be able to find new counsel to represent him.

         Further, counsel represents several hundred other plaintiffs in this MDL. Given their experience acquired throughout the course of this litigation, counsel is or should be knowledgeable regarding the relevant facts, documents, expert testimony, and legal issues in the case. It would take replacement counsel a significant amount of time to become familiar with the case. Other courts have denied motions to withdraw on similar grounds. See Haines, 814 F.Supp. at 425 (denying motion to withdraw in part because counsel was involved in multiple similar cases against the same defendants, thus counsel was “uniquely aware of the facts, documents, expert testimony, litigation strategy, legal issues and legal authority”); Cuadra v. Univision Communs., Inc., C.A. No. 09-4946 (JLL), 2012 U.S. Dist. LEXIS 48431, at *29 (D.N.J. Apr. 4, 2012) (denying motion to withdraw in part because case had been ongoing for three years and counsel was “uniquely aware of the facts, documents, and legal issues”).

         Moreover, plaintiff's claim is too complex for him to pursue pro se. “In cases where withdrawal would significantly impair a party's ability to maintain the action, the court has not permitted counsel to withdraw.” Rusinow, 920 F.Supp. at 72 (citing Haines, 814 F.Supp. at 425; Kriegsman v. Kriegsman, 150 N.J.Super. 474, 479-80 (App. Div. 1977)). Here, plaintiff would be unable to maintain his claims against defendants because it is unlikely he will be able to find replacement counsel and his claims are too complex to pursue pro se. Both the parties and the Court would face significant delay and burden if plaintiff were forced to proceed pro se. See Cuadra, 2012 U.S. Dist. LEXIS 48431, at *29 (denying motion to withdraw in part because the parties and the court would face “unmanageable delays and burden” if plaintiff were forced to find replacement counsel or proceed pro se). Further, an attorney's withdrawal in the MDL context has particular potential to harm the administration of justice and become burdensome on the Court. See In re FEMA Trailer Formaldehyde Products Liability Litigation, MDL No. 07-1873, 2011 WL 4368719, at *2 (E.D. La. Sept. 16, 2011)(denying motions ...

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