Lawyers behind lame Digitek claims face punishment

By Steve Korris | Jan 22, 2010


CHARLESTON – U.S. District Judge Joseph Goodwin plans to punish lawyers who filed worthless claims against Mylan Pharmaceuticals and Actavis Totowa.

Goodwin wrote on Jan. 8 that he would use a court rule and a pretrial order from last March "to begin the process of imposing monetary sanctions when appropriate."

He wrote that under another rule, he would consider pending motions for sanctions in cases that call into question the initial investigations of lawyers.

"Both remedies are a further measure to alleviate the expenses defendants assert they have borne as a result of plaintiffs' noncompliance with existing discovery devices," he wrote.

Goodwin presides over hundreds of cases from around the nation, all claiming damage from defective tablets of heart medicine Digitek.

Litigation began in state and federal courts in 2008, after the Food and Drug Administration recalled pills that might have packed a dangerous double dose.

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

Hundreds of cases remain pending in state courts.

In the federal action, Mylan and Actavis Totowa moved last July for an order requiring plaintiffs to admit or deny that they sued without necessary information.

Magistrate Judge Mary Stanley granted the motion in August.

In September, defense attorney Richard Dean of Cleveland told Goodwin his clients paid more than $100,000 for research to expose worthless claims.

He wrote that death certificates of three plaintiffs blamed their deaths on a hip fracture, end stage heart disease, and internal bleeding with profound anemia.

"It has become increasingly clear that the publicity of the recall and the aggressive advertising in follow up to the recall is at the root of this litigation, not actual evidence of ingestion of a defective product," Dean wrote.

Lawyers have dismissed dozens of cases since then.

One admitted that the client didn't take the drug.

Goodwin refused to sign orders dismissing the cases until someone explained what the plaintiffs received through settlement.

The defense answered that plaintiffs received nothing.

Two of 10 plaintiffs that Goodwin chose for the first trial group dropped out.

For the defense, Dean proposed a management order requiring an initial standard of evidence that normally wouldn't apply until the start of discovery.

For plaintiffs, Fred Thompson of Motley Rice in Mount Pleasant, S.C., answered that the dismissals proved his side made "an effort to self police cases."

Goodwin rejected Dean's proposal, but his order denying it promised action under an order he signed last March.

He denied it without prejudice, so that Mylan and Actavis Totowa can file it again if plaintiffs don't follow the procedure in the current order.

"If a plaintiff fact sheet is not timely or substantially completed, sanctions will result," he wrote. "The procedure has been used successfully by defendants, and certain plaintiffs have dismissed a number of meritless cases."

Goodwin has set an evidence hearing for October, not only for his own sake but also for judges from state courts in West Virginia, New Jersey, Pennsylvania and Texas.

He declared it unwise to address causation prior to the hearing.

"I have taken a number of measures, with the cooperation of counsel and my fellow judicial officers on the state bench, to put this litigation on track for a just, speedy, and efficient disposition," he wrote.

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