39 Digitek plaintiffs must answer questions

By Steve Korris | Sep 3, 2009

CHARLESTON – Thirty-nine individuals suing drug companies Actavis Totowa and Mylan Bertek over Digitek heart medicine must answer questions loaded with trouble for their lawyers.

On Aug. 26, U.S. Magistrate Judge Mary Stanley ordered the 39 to admit or deny that their lawyers possessed no medical or pharmacy records when they filed complaints.

Stanley based her decision on "extraordinary circumstances."

She wrote, "The defendants' requests for admission are sufficiently and narrowly tailored to reveal whether the plaintiffs were in possession of the relevant records at the time suit was initiated."

She found the requests concise, simple and straightforward. She called them the most efficient method of developing a record.

Stanley presides over discovery for District Judge Joseph Goodwin in hundreds of Digitek cases from around the nation.

Litigation began after the U. S. Food and Drug Administration recalled Digitek pills that may have contained twice the proper dose of active ingredient.

The U. S. Judicial Panel on Multi District Litigation consolidated the cases and assigned them to Goodwin last year.

When Actavis and Mylan served the requests for admission, lawyers for the 39 plaintiffs pleaded that they shouldn't have to respond.

They told Stanley that under a pretrial order, Actavis and Mylan couldn't start discovery on a plaintiff until Goodwin placed the person in a trial group.

They argued that the requests weren't calculated to lead to discovery of evidence.

They invoked attorney client privilege and the work product doctrine.

Actavis and Mylan answered that they didn't need the information to litigate claims. They argued that they needed it to prepare motions for Rule 11 sanctions.

Rule 11 provides that when an attorney signs a pleading, he or she certifies that to the best of his or her knowledge, after reasonable inquiry, the claims are warranted by law and will likely have evidentiary support.

Stanley decided that Rule 11 justified Actavis and Mylan in serving the requests.

"If the plaintiffs in the 39 identified cases in fact failed to comply with Rule 11, serious issues arise as to the merits of those plaintiffs' claims," she wrote.

"The information targeted by the requests does not appear to implicate either the attorney client privilege or the work product doctrine," she wrote.

She wrote that Rule 11 requires a reasonable investigation of the factual and legal basis for a claim before filing.

"A complaint containing allegations unsupported by any information obtained prior to filing violates the requirement of conducting a reasonable prefiling factual investigation," she wrote.

She found no precedent for whether parties may engage in discovery to determine if a party committed sanctionable conduct.

She found a 26 year old note from a Rule 11 advisory committee that "discovery should be conducted only by leave of the court, and then only in extraordinary circumstances."

She wrote, "A showing of extraordinary circumstances is clearly a high burden to satisfy. Nevertheless, a number of factors in this matter justify allowing discovery to proceed."

She wrote, "The attorneys in this case are experienced and have the time and the means to conduct a responsible prefiling factual investigation."

Stanley found nothing in any pretrial order to prohibit service of the requests for admission.

Briefs on the requests for admission don't identify the lawyers for the 39. Dozens of law firms represent Digitek plaintiffs.

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