5. Digging In
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47 5 Digging In By the end of 1991, Weinberg had filed three separate lawsuits—on behalf of the Johnsons, Niedermans, and Weisses—in Middlesex County, New Jersey, his home county. Middlesex was a good place for a plaintiff’s lawyer . Juries were typically blue-collar and included people of color, both known to be favorable to plaintiffs. The bench was a good mix of liberal and conservative judges, and Weinberg had tried cases before several of them. He knew the hemophilia cases probably would end up before one judge, and was comfortable with the notion that whatever judge was assigned, his clients would get a fair shake. The blood-product companies had other ideas. They thought federal courts were a more favorable place for corporations. This is generally true, although why is not entirely clear. It might be that the federal bench tends to be more conservative, or that federal procedural rules are more onerous and therefore more difficult for plaintiffs to handle. In addition, federal juries tend to be from a broader and more well-to-do social spectrum, and therefore are likely to be more conservative. Whatever the reasons, the companies exercised their prerogative to remove the cases from state court, and they were transferred to the U.S. District Court in Newark. Weinberg’s three cases were assigned to Magistrate Judge Joel Pisano, who recently had been appointed to the federal bench. Judge Pisano had been a trial lawyer in private practice. Magistrate judges are typically younger than district court judges. They are essentially junior-grade federal judges and serve two basic functions. One, they handle minor cases BLOOD ON THEIR HANDS 48 from start to finish. Two, they handle preliminary issues in major cases, but when the cases are set for trial, they are transferred to a district court judge. So the magistrate judge must make sure that the parties comply with the rules of “discovery”—that is, the exchange of documents, the taking of sworn statements, and the choosing of expert witnesses. Judge Pisano, in his early forties at the time, was assigned to the discovery issues in Weinberg’s cases, all of which in turn were assigned to different district judges. These were the first hemophilia-HIV cases to be filed in New Jersey. There was a small body of case law involving infectious diseases transmitted by blood, but it was not helpful, as those cases involved hospitals that used whole blood or red blood cells, not for-profit companies that made plasma products. The first case management conference took place at the federal courthouse in Newark on a cold day in February 1992. To Weinberg, it seemed clear that Judge Pisano was not impressed with his theory of liability. He seemed unreceptive to arguments that the commercial manufacturers should be considered different from hospitals. Weinberg had the sense that the judge didn’t like him very much, either. In addition, Weinberg’s adversaries were all from large firms that represented a wide array of corporations , and they spent far more of their time in the federal courthouse than he did. From the outset, Judge Pisano’s orders imposed most of the burdens of discovery on the plaintiffs—Weinberg’s clients. Among the issues he listed was the identification of the product that had caused each client’s HIV infection, which was going to be difficult since most had used more than one brand. Weinberg argued that the burden of proving which product was to blame should be borne by the defendants—that each should have to prove another company was to blame. He tried his best to convince the court that wide-ranging discovery was essential to his cases—and that for starters, he needed corporate documents that would identify plasma sources. The industry lawyers were smart and tough—dozens of them and their support staff, from major law firms with huge resources—and they fought back on every issue. They knew Weinberg’s cases were potentially just the tip of a very damaging iceberg, and their legal strategy was to be as difficult and aggressive as possible, to keep him from making any progress. DIGGING IN 49 And so he was inundated with all manner of demands for discovery, with the approval of the court. Weinberg was at another disadvantage. Most of the corporate lawyers had been defending their clients for several years. They knew the issues, the history of the products, and the evidence that...