Kulkarni v. Actavis Generics
- Paul Engelmayer
- 1:22-cv-05735
- U.S. District Court · Southern District of New York
- 3
In Kulkarni v. Actavis Generics, Judge Moses denied Nivedita Kulkarni’s requests for pro bono counsel without prejudice.
Nivedita Kulkarni’s requests for volunteer legal representation in both related actions were denied without prejudice; the defendants had not yet been served.
What happened
Kulkarni v. Actavis Generics concerns Nivedita Kulkarni’s related lawsuits against generic and brand-name drug manufacturers. She alleges that prednisone caused a neurological disorder called Functional Myoclonus and brings failure-to-warn claims.
Kulkarni, who is representing herself, asked the court to find a volunteer lawyer before she served the defendants. She said she had contacted about 30 products-liability lawyers, but none agreed to take her case. The complaints had not yet been served or tested on their merits.
Judge Barbara Moses denied both requests for pro bono counsel without prejudice, allowing Kulkarni to renew them later if the record shows that her claims may have merit.
The detailed version
- Kulkarni v. Actavis Generics · No. 1:22-cv-05735
- Paul Engelmayer
- Sept. 30, 2022
Background
Nivedita Kulkarni is proceeding without a lawyer in two related actions. She alleges that she took prednisone in 2019 and later experienced shaking and muscle spasms that were diagnosed as Functional Myoclonus, a neurological disorder that continues to affect her. She believes the medication caused the disorder.
In No. 22-CV-5735, Kulkarni sued three generic pharmaceutical manufacturers on a failure-to-warn theory. In No. 22-CV-5740, she sued three different manufacturers on the same theory, describing that action as being against the brand-name label. She stated that she took the generic version manufactured by Actavis Generics but did not understand whether she should sue the brand-name manufacturer, the generic manufacturer, or both. She had not served any defendant with a summons or complaint. Earlier that day, the court had denied her requests to proceed without paying the filing fee.
Request for counsel
Kulkarni asked the court to seek volunteer lawyers to represent her. She stated that she had contacted approximately 30 products-liability lawyers and had not found one willing to take the case. She wanted a lawyer before serving the defendants to help her with the process.
The court explained that applications for appointed counsel are evaluated using several factors, including the apparent strength of the claims, the person’s ability to pay for private counsel, efforts to find a lawyer, the availability of lawyers, and the person’s ability to gather facts and address the issues without assistance. The apparent substance or likely success of the claims is the threshold factor receiving the most attention. Requests at the early stages of a case are rarely granted, particularly before the court has reached a decision on the merits.
Ruling
Judge Barbara Moses held that the complaints had not been served and had not yet been tested on the merits. The court concluded that a more developed record was needed before it could determine whether the likelihood of success justified appointing counsel.
The court therefore ordered that Kulkarni’s applications for appointment of pro bono counsel were DENIED without prejudice to renewal when she could demonstrate the existence of a potentially meritorious claim.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.