Kulkarni v. Horizon Therapeutics PLC
- Paul Engelmayer
- 1:22-cv-05740
- U.S. District Court · Southern District of New York
- 3
Kulkarni v. Horizon Therapeutics PLC: Judge Moses denied Kulkarni’s request for pro bono counsel without prejudice because the unserved claims had not yet been tested.
Nivedita Kulkarni’s requests for volunteer counsel in two related lawsuits were denied without prejudice; the named drug-manufacturer defendants were not served and were not otherwise affected by the ruling.
What happened
In Kulkarni v. Horizon Therapeutics PLC and a related case, Nivedita Kulkarni, who was representing herself, alleged that prednisone caused a neurological disorder and sued drug manufacturers for allegedly failing to warn about the medication’s risks. She asked the court to find a volunteer lawyer to help her pursue the cases.
The court said that requests for appointed volunteer counsel generally require showing that the claim has substance or a likelihood of success. Kulkarni had contacted about 30 products-liability lawyers, but the complaints had not been served on any defendant and had not yet been tested on their merits.
Judge Moses denied Kulkarni’s applications for pro bono counsel without prejudice, allowing her to renew the requests later if a potentially meritorious claim could be shown.
The detailed version
- Kulkarni v. Horizon Therapeutics PLC · No. 1:22-cv-05740
- Paul Engelmayer
- Sept. 30, 2022
Background
The opinion concerns two related actions brought by Nivedita Kulkarni, who was proceeding without a lawyer. Kulkarni alleged that she took prednisone in 2019 and later experienced shaking and muscle spasms that were diagnosed as Functional Myoclonus, a neurological disorder that continued to affect her. She believed the medication caused the disorder.
In No. 22-CV-5735, Kulkarni sued three generic drug manufacturers on a failure-to-warn theory. In No. 22-CV-5740, she sued three different manufacturers, describing that action as being against the “brand name label.” She stated that she had taken the generic version of the medication and did not understand whether she should sue the brand-name manufacturer, the generic manufacturer, or both. None of the defendants had been served with a summons and complaint. The court also had denied her requests to proceed without paying filing fees earlier that day.
Request for volunteer counsel
Kulkarni asked the court to seek pro bono counsel, meaning a volunteer lawyer, to assist her before she served the defendants. She stated that she had contacted approximately 30 products-liability lawyers and had not found one willing to take her case. She reported that the lawyers told her the case was complicated and difficult to prove.
The court explained that it considers several factors when deciding whether to request volunteer counsel, including the apparent merits of the claim, the plaintiff’s ability to pay for a private lawyer, efforts to obtain a lawyer, whether counsel is available, and the plaintiff’s ability to gather facts and handle the issues without assistance. The court emphasized that the merits or likelihood of success is the most important factor and that volunteer counsel is rarely appointed at the early stages of a case, usually not before a decision on the merits.
Ruling
The court concluded that the complaints had not been served and had not yet been tested on their merits. It said that a more developed record was needed before determining whether Kulkarni’s chances of success justified appointing counsel. The court therefore ordered that her 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.