Ten lawyers for plaintiffs claiming injury from the Dalkon Shield signed a motion seeking the disqualification of U.S. District Court Judge Robert R. Merhige Jr. in the bankruptcy case of A.H. Robins Co., which made the intrauterine device. The number of signers was incorrectly reported in an article in Wednesday's Business section.
Two lawyers for Dalkon Shield plaintiffs asked U.S. District Judge Robert R. Merhige Jr. today to disqualify himself from presiding in the voluntary bankruptcy of the A. H. Robins Co., which manufactured the intrauterine contraceptive device. The lawyers' motion contended that Merhige "has a personal bias or prejudice in favor of A. H. Robins Co. Inc. and its chairman, E. C. Robins Sr." They also asked for a stay of all proceedings in the Chapter 11 case until the petition is ruled upon.
The lawyers, Douglas E. Bragg of Denver and Bradley Post of Wichita, Kan., asked Merhige to issue an order of disqualification "so that the case may be assigned to another judge, who should come from outside" Richmond.
The motion alleged that there is a pattern in which "the Robins family's prominence in Richmond, the importance of the A. H. Robins company in the community, and the interwoven nature of the bench and bar in Richmond make it impossible for any Richmond judge to sit on this case. The case is too big and will involve too many people from the Richmond bar and business community."
The motion was filed after Merhige announced from the bench that he was dissolving the Committee of Representatives of Dalkon Shield Claimants, a 38-member panel appointed after the company filed for bankruptcy last Aug. 21.
Merhige said he will appoint a new committee of three to seven members. The purpose of the claimants' panel is to represent the interests of about 5,100 U.S. women whose product-liability lawsuits were frozen by the bankruptcy filing, and also of women from 80 countries who have until April 30 to file notice of claims. Their number is expected to reach 200,000.
Merhige said that the 38-member panel was "not well suited for the purpose for which it was formed," saying that he has "not seen much progress."
Post was the original elected chairman, and Bragg the first elected vice chairman of the committee, but both resigned in December. The committee was divided over whether to try to have Merhige disqualified. Bragg and Post, in a 39-page statement of facts, cited several episodes involving Merhige's family and meetings about the case without the presence or consent of plaintiffs' lawyers, or ex parte. These episodes, they alleged, show a bias or a prejudice that require disqualification.
A key figure in the statement is Murray J. Janus, a Richmond lawyer who is Merhige's former law partner. The two were partners in Novus Holding Co., the statement said. Janus was cocounsel with Joseph S. Friedberg and other Minnesota lawyers whose cases had been transferred to Merhige's court last year. Janus and Friedberg urged a mandatory Shield class action from which plaintiffs could not opt out. Other plaintiffs' lawyers, including Post, Bragg, and Robert E. Manchester, of Burlington, Vt., adamantly opposed any class action.
In an affidavit, Manchester told of a June 27 meeting, at which Friedberg told him "that he had had an ex parte meeting" with Merhige "at the judge's house."
The affidavit also said that the ex parte meeting had occurred with the consent of Robins' attorneys, that Friedberg said Merhige had told him he would grant the class action, and "that Judge Merhige had requested the opportunity to speak ex parte with me."
Post and Bragg also told of a July 18 meeting in Merhige's chambers at which the judge announced to Manchester and others that he was organizing a meeting of federal and state judges who were handling Dalkon Shield litigation. The transcript shows Merhige saying in the presence of Friedberg and an outside lawyer for Robins that he was "not really disturbed about a Chapter 11" -- a bankruptcy filing -- and that "I have it in any event. If it is Chapter 11, I've got it."
Merhige also said: "I think no matter what happens, either class action or Chapter 11, you had better get used to Richmond, everybody, if we can't work out some method, because that's where it is going to end up, and I know it, and I couldn't care less."
On Aug. 7, the day after the meeting of federal and state judges, a federal judge who attended said in an order that Merhige had "suggested that it would be useful for him to have as many as possible of the pending Dalkon Shield cases transferred to his district, not only for the purpose of assessing the motion for a class action, but also for facilitating a settlement across the board in the event the motion fails."
On Aug. 22, the day after the Chapter 11 filing, Merhige, in an exchange with Bragg, called Robins Chairman Claiborne Robins "a neighbor and a fine man," and said he had met with him before the filing "just by accident, I suspect."
Bragg and Post also submitted a document showing that Carle E. Davis, of McGuire, Woods & Battle, which had been the company's lead Shield defense law firm, is the personal lawyer for Judge Merhige and his wife, for their wills, several trusts and real estate matters.
Last Dec. 4, Merhige appointed Stanley K. Joynes III to a post in the Shield litigation. His wife works for McGuire, Woods & Battle's tax department, Post and Bragg said.
Paul D. Rheingold said in a letter Oct. 21 that he had met "last Friday with Bob Merhige, the judge's son," in connection with the class-action dispute.
Rheingold was a member of the claimants committee and was -- before his resignation -- ordered to show cause why he should not be dropped from the committee for advertising for Shield clients after the committee had passed a rule prohibiting such advertising.