Digitek MDL judges deny request to transfer cases to Texas judge

By Steve Korris | Aug 20, 2009

AUSTIN, Texas -– Manufacturers and distributors of heart medicine Digitek succeeded in consolidating 19 personal injury suits from 12 counties, but were taught a lesson in judge shopping.

On Aug. 5, multi district judges in Austin transferred suits against drug maker Actavis Totowa and distributor Mylan Pharmaceuticals to a pretrial judge, but denied a motion to put Jefferson County District Judge Milton Shuffield in charge of the cases.

Presiding Judge David Peeples wrote that "we consider it improper for a motion to seek transfer to a certain court or county."

Plaintiffs' lawyers suing Actavis Totowa and Mylan objected to Shuffield, claiming he was a former partner of two defense lawyers in the litigation.

Michael McGown and Barry Bennett of Beaumont wrote to the multi district judges that "there could be an appearance of partiality."

The judges didn't comment on the point, choosing to send a message to both sides.

While they scolded defense lawyers who asked for Shuffield, they disappointed plaintiff lawyers who asked for any Jefferson County district judge but Shuffield.

Instead, they assigned the suits to Orange County District Judge Buddie Hahn.

They consolidated 14 suits from southeastern counties, three from the north and two from the state's southern tip.

Plaintiffs claim defendants made and marketed Digitek pills that delivered excess doses, causing deaths and injuries.

Litigation started around the nation last year after the U.S. Food and Drug Administration recalled Digitek pills.

Federal multi district judges have transferred about 300 suits to District Judge Joseph Goodwin of Charleston, W.Va.

According to Peeples, state multi district panels like the one in Texas had consolidated 117 suits prior to the Texas transfer.
District judges presiding over multi district litigation manage discovery and other pretrial proceedings.

For trials, they return cases to local courts where they began.
Multi district judges in Texas follow Supreme Court Rule 13 in granting transfers.

"Rule 13 rests on a premise that a legal system should not give different answers to a question, or allow repetitive discovery, or subject witnesses or lawyers to conflicting demands, simply because the cases are pending before different judges in different parts of the state," Peeples wrote.

"When multiple lawsuits contend that a drug or other product was defective, there will be common liability issues at the core of each case," he wrote.

"The request for a certain judge, however, is denied," he wrote.

"Such express requests are improper because Rule 13 is not meant to be a venue changing or judge selecting procedure," he wrote. "By its terms, the MDL procedure simply gives our system a tool for promoting convenience to witnesses and parties along with judicial efficiency.

"Although the inevitable result of an MDL order is to change the pretrial judge in most of the cases, that is not the rule's purpose."

Justices Jeff Brown of Houston, Ann McClure of El Paso, Catherine Stone of San Antonio and Carolyn Wright of Dallas joined the opinion.

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