No need for economic class action, Digitek defendants say
Steve Korris Feb. 26, 2010, 3:45am
CHARLESTON – Complaints of economic damage from Digitek heart medicine don't add up to a national class action, manufacturers argue in federal court.
On Feb. 19, Actavis Totowa and Mylan Pharmaceuticals urged District Judge Joseph Goodwin to deny certification of a class claiming economic losses.
"Some of the named plaintiffs concede they suffered no economic loss, and whether any class member did would require individual inquiry," wrote Richard Dean of Cleveland.
"What began as extensive class action litigation has since dwindled to a handful of named class representatives asserting only claims for economic loss," Dean wrote.
He wrote that they seek "a wide assortment of highly unique damages, such as the cost of new glasses, toll charges, insurance premiums, and even the cost of two enemas."
Dean represents Actavis Totowa, of New Jersey. Harvey Kaplan of Kansas City, Mo., endorsed Dean's brief for Mylan, of West Virginia.
Goodwin presides over Digitek suits from around the nation by appointment of the U.S. Judicial Panel on Multi District Litigation.
Litigation started in 2008, after defendants recalled shipments out of concern that a plant in Little Falls, N.J., produced dangerous double thick pills.
Defendants proved last year that lawyers filed suits without seeing medical records and some plaintiffs hadn't ingested Digitek at all.
Lawyers dismissed dozens of flimsy claims, and Goodwin recently wrote that he would determine appropriate sanctions.
Hundreds of cases continue, and the number keeps growing through transfers from district courts.
According to Dean, Actavis initiated a recall in cooperation with the Food and Drug Administration, "out of an abundance of caution."
He wrote, "To date, not a single double thick tablet has been identified as having reached the market."
He quoted from an FDA summary that "harm to patients was very unlikely."
"Some representatives are unable to prove they ever took Digitek, as opposed to some other form of digoxin," he wrote.
He wrote that individual issues would predominate over class issues.
"Given the extensive refund program, which many putative class members participated in, the question of defendants' retention of any benefit is an individual, predominating question," he wrote.
He wrote that Alan Chambers sought $15 in co-payments while Lorena Ard sought thousands in lost wages plus distress.
He wrote that Judy Whitaker asserts a wrongful death claim.
"It is hard to see how a scattering of economic loss cases brought by plaintiffs who do not even claim to have been injured by the recalled product could qualify as a mass tort," he wrote.
Fred Thompson of Motley Rice in Mount Pleasant, S.C., leads a committee Goodwin picked to run litigation for all plaintiffs.