Charleston lawyers all over federal class action cases

By John O'Brien | Aug 17, 2006

CHARLESTON - Attorney James Peterson can be excused for not leading the crusade against alleged organ-snatchers from New Jersey.

He already has the blood of 80,000 people on his hands.

Peterson filed two lawsuits on March 17 in U.S. District Court for the Southern District of West Virginia charging eight companies with exposing transplant recipients to potentially disease-ridden human tissue taken from a New Jersey funeral home, but will take a backseat during the Discovery proceedings to Tony Majestro of Powell and Majestro in Charleston.

That's because he's already one of the main attorneys on a class action lawsuit in Des Moines, Iowa, against DuPont that features a study of the blood of 80,000 people and alleges the people of Parkersburg were exposed to a chemical produced in the making of Teflon that has caused cancer in laboratory animals.

It seems West Virginia is well-represented on the national stage of class action lawsuits, and Peterson, of Hill, Peterson, Carper, Bee and Deitzler in Charleston, and Majestro are on the forefront.

Peterson is recognized as a life member of the American Trial Lawyers Association, an honor bestowed on approximately 50 lawyers out of a nationwide trial organization consisting of over 50,000 members, and Majestro has been heavily active in mass tort lawsuits for 10 years. He's been involved with Vioxx litigation, as well as defective breast implants and diet drugs.

Both are currently serving on Plaintiffs Steering Committees, a group of eight-10 attorneys responsible for the Discovery process when a national class action case is consolidated into one court for financial purposes.

"That team will make the decisions of what documents are asked for, depositions taken with who, who will appear in court," Peterson said. "Our group (lawyers from the two firms) will send one person to be one of the eight or 10 that will control litigation.

"Usually it's based upon experience and previous knowledge working with Multi-District Litigation panels."

The official position on Des Moines

"The official position on Des Moines is that it's a wonderful place," Peterson says, chuckling.

Ask him about Parkersburg, specifically its water system, and he's not so sure.

A study of the blood of 80,000 Parkersburg-area residents who volunteered is a key piece of evidence that should be finalized within a year and go a long way in determining what damages, if any, those affected by the alleged presence of a chemical commonly known as "C-8" are entitled.

"It's the largest community-based health study ever done in the world, and it's being done in West Virginia," Peterson said.

An independent panel agreed upon by both sides will then determine if the amount of chemicals exposed to the water districts is harmful.

Peterson says C-8 was discharged as waste material into the air and water surrounding DuPont's Washington Works plant because the company did not protect against it. Detection of the chemical was made in two West Virginia water districts and four more in Ohio, as well as several wells.

On a national scale, Peterson says other cases' complaints deal with C-8 on the cookware to which Teflon is applied.

Whereas the DuPont case was consolidated in federal court in Iowa, the case of the New Jersey organ-snatchers has been placed in the New Jersey District courthouse in Newark.

That's where Majestro just returned from, fresh off the first in a series of monthly hearings.

Organ-harvesting in the Garden State

Majestro and Peterson have worked together before, but maybe never on a case as gruesome as this one.

"This is a unique area of the law," Peterson said. "There's virtually no litigation in this area before. No one, that we know of, has ever done this before."

Alleged ghoul Michael Mastromarino, owner of the now-bankrupt Biomedical Tissue Services, is charged in civil and criminal courts with taking organs from cadavers in a New Jersey funeral home and selling them to human tissue distributors. A New York district attorney has indicted Mastromarino on 122 charges.

The Food and Drug Administration says the tissue was never tested for AIDS, syphilis and hepatitis.

"Jim and I were approached separately by a client and have worked on other mass litigations together, so the two of us had been working on the case from the beginning," Majestro said. "The Discovery to be done has witnesses, quite a few from the New York-New Jersey area, some in Florida - some of the defendants are headquartered there - and some other defendants are headquartered in Tennessee. They're pretty much spread over the country.
"It's truly national litigation."

That case argues New Jersey-based Biomedical Tissue Services never tested the human tissue for diseases and that disease-related effects could be far-reaching. Regeneration Technologies, Spinalgraft Technologies, Medtronic Sofamor Danek, USA, Tutogen Medical, Lifecell Corp., Lost Mountain Tissue Bank and Blood and Tissue Center of Central Texas are the other defendants.

Janie Maria Frazier and David Ramella are, so far, the only plaintiffs from West Virginia.

A letter sent by the Multi-District Litigation Panel to the New Jersey court lists 37 cases from 16 states to be consolidated.

According to Peterson, the case's Discovery process could take up to two years because some possible victims may not realize they are at risk yet and some of the plaintiffs may have given blood before they knew they were at risk for disease.

"Unfortunately, those people who received contaminated blood supplies and bone parts can develop diseases like cancer, AIDS, other auto-immune diseases, then turn around and give blood without knowing," Peterson said.

The end product

According to Majestro and Peterson, federal judge Joseph Goodwin of West Virginia's Southern District shouldn't hold his breath waiting on the organ-snatchers case to return even though the case can't be tried in its current location.

That's because they say the case probably won't be tried at all. A settlement is almost sure to be reached following Discovery.

"The way the MDL system is set up is that the case can't be tried in the MDL court," Majestro said. "If it is trialed, the cases are remanded to their various federal courts with all the Discovery done, and you just have individual trials.

"What happens with a lot of these MDLs, the parties reach a settlement. Remand to the original district courts is rare, but it's a possibility. Like any other case, you have to prepare it for a trial."

Majestro and Peterson, both chosen for their respective PSCs because of their previous experience with mass tort litigation, agree that trials rarely happen because the defendants would have to hire defense teams to work several dozen trials.

"Maybe the victims total 5,000-10,000 (in the organ-snatching case). Maybe some have AIDS, Lupus or some other disease-process that will haunt them for the rest of their lives," Peterson said.

"Once we understand how many there are, we'll know what it takes to settle.

"If only 100 people are affected, then thank goodness. Hopefully it's that way, but I still think they would just settle those claims."

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