Hu v. Janssen Pharmaceuticals ( 2024 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SOPHIE HU, et al., Case No. 21-cv-05990-HSG 8 Plaintiffs, ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF 9 v. COUNSEL 10 JANSSEN PHARMACEUTICALS, INC., et Re: Dkt. No. 45 al., 11 Defendants. 12 13 Before the Court is Plaintiff Sophie Hu’s motion for appointment of counsel, Dkt. No. 45. 14 The Court finds this matter appropriate for disposition without oral argument and the matter is 15 deemed submitted. See Civil L.R. 7-1(b). The Court DENIES the motion. 16 I. BACKGROUND 17 Plaintiff filed her original complaint against Defendants in this Court in August 2021. Dkt. 18 No. 1. She filed an amended complaint later that month. Dkt. No. 8. In December 2021, her case 19 was transferred to the Eastern District of Louisiana for inclusion in coordinated proceedings there. 20 Dkt. No. 39. The Judicial Panel on Multidistrict Litigation remanded the case back to this Court 21 in January 2024. Dkt. No. 40. Plaintiff filed a motion for appointment of counsel in February 22 2024. See Dkt. No. 45 (“Mot.”) at 4–5. 23 Plaintiff’s amended complaint alleges that her mother, Fumian Zhao, experienced a 24 cerebellar hemorrhage due to her use of the medication Xarelto, causing her extreme pain and 25 suffering and leaving her incapacitated. See Dkt. No. 8 (“FAC”) ¶¶ 6–11. Plaintiff brings various 26 product liability claims against Defendants as the makers of Xarelto, most of which appear based 27 on a failure-to-warn theory of liability. See id. ¶¶ 12–17. She seeks compensation for the 1 compensate injury, pain, loss, and suffering to [her] entire family.” Id. ¶ 18. Despite Plaintiff’s 2 sustained efforts over several years to find representation, she has appeared pro se throughout the 3 litigation. See Dkt. No. 65 at 2. 4 II. DISCUSSION 5 “The court may ask counsel to represent an indigent litigant under 28 U.S.C. § 1915 only 6 in ‘exceptional circumstances,’ the determination of which requires an evaluation of both (1) the 7 likelihood of success on the merits, and (2) the ability of the plaintiff to articulate her claims pro se 8 in light of the complexity of the legal issues involved.” Brown v. Cnty. of Del Norte, No. 16-CV- 9 07235-RMI, 2018 WL 11364271, at *1 (N.D. Cal. Feb. 13, 2018) (quoting Wilborn v. Escalderon, 10 789 F.2d 1328, 1331 (9th Cir. 1986)).1 11 The Court finds in its discretion that no exceptional circumstances warrant appointment of 12 counsel. Plaintiff lacks the ability to prosecute her claims in this case pro se not because the legal 13 issues involved are complex, but because she may not bring her viable claims, all of which she 14 asserts on her mother’s behalf, without representation as a matter of law. See C.E. Pope Equity Tr. 15 v. United States, 818 F.2d 696, 697 (9th Cir. 1987); Johns v. County of San Diego, 114 F.3d 874, 16 877 (9th Cir. 1997).2 Despite what she describes as her best efforts, Plaintiff has not been able to 17 find counsel to take her case, and she remains unrepresented. See Mot. at 3–4. Accordingly, 18 because she lacks standing, her likelihood of success on the merits at this time is essentially zero. 19 Moreover, the Court understands that Plaintiff has spoken to the Federal Pro Bono Project about 20 her potential eligibility for pro bono counsel, but the Project similarly has been unable to identify 21 counsel willing to represent her. Under these circumstances, it would be inappropriate for the 22 Court to effectively force an unwilling attorney to represent Plaintiff. See Mot. at 3 (representing 23 24 1 Section 1915(e) grants courts the discretion to request an attorney to represent a person “unable to afford counsel.” 28 U.S.C. § 1915(e). Plaintiff has never submitted a request to this Court to 25 proceed in forma pauperis, but for purposes of this order, the Court will assume Plaintiff meets the statute’s indigency requirement, as that would seem to be the only possible basis for her motion. 26 2 The Eastern District similarly denied the motion for appointment of counsel that Plaintiff filed in 27 the MDL, finding that her case did not present legal complexities “more severe than those 1 that attorneys Plaintiff consulted, including Xarelto MDL counsel, told her that it would “be 2 irresponsible for any knowledgeable attorney to take a new Xarelto case” and said they were “not 3 aware of any counsel currently taking new Xarelto claims”). 4 || Ii. CONCLUSION 5 The Court DENIES Plaintiff's motion for appointment of counsel. 6 IT IS SO ORDERED. 7 Dated: 9/11/2024 8 . ° mag S. GILLIAM, JR. / 9 United States District Judge 10 11 a 12 14 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28