Drug companies will get chance to prove bogus claims

By Steve Korris | Aug 14, 2009

CHARLESTON – U.S. Magistrate Judge Mary Stanley will give drug companies Actavis Totowa and Mylan Pharmaceuticals a chance to prove that lawyers filed bogus suits in national litigation over heart medicine Digitek.

At an Aug. 11 hearing, Stanley ruled that plaintiffs must admit or deny statements establishing that they sued without necessary information.

She told attorneys she would issue an order on Aug. 19, after vacation, and she advised them to follow her oral order until then.

A temporary docket entry says "requests should be answered without objection."

Actavis Totowa and Mylan asked U.S. District Judge Joseph Goodwin for the order on July 14, claiming many cases without merit had been filed.

Goodwin presides over hundreds of Digitek suits by appointment of the U.S. Judicial Panel on Multi District Litigation.

The master complaint alleges 19 counts including wrongful death, fraud, negligence and misrepresentation against manufacturer Actavis Totowa and distributor Mylan.

Plaintiffs started suing last year after federal regulators recalled Digitek pills.

Plaintiffs alleged that adulterated and misbranded pills killed and injured consumers.

According to Actavis Totowa lawyer Richard Dean of Cleveland, some lawyers filed suits before they gathered facts.

"Medical records produced to date reveal many cases where deaths are clearly related to other medical issues," Dean wrote in his July 14 motion.

He wrote that in many cases there was no evidence of toxicity from Digitek.

He wrote that in a cluster of cases neither plaintiffs nor their counsel possessed medical or pharmacy records when they sued.

"In such cases, there could have been no good faith belief in a factual basis to support the litigation," he wrote.

"Defendants believe the minimum factual investigation required before filing cases like these is to obtain and review the medical records," he wrote.

Goodwin referred the dispute to Stanley, who resolved it in favor of the defense.

The temporary docket entry shows that she asked Carl Frankovitch of Weirton, one of three lead plaintiff lawyers, how he could argue that the requests weren't proper.

It shows that she asked if he was serious about claiming attorney client privilege.

It shows that she addressed attorney accountability and said she "will hear from individual attorneys if lead counsel feels uncomfortable."

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