Some Digitek plaintiffs seek economic damages class action

By Steve Korris | Jan 29, 2010

CHARLESTON – In national litigation over heart medicine Digitek before U.S. District Judge Joseph Goodwin, plaintiffs claiming economic damages seek separate treatment from those claiming personal injuries.

On Jan. 21, seven plaintiffs moved to certify a class action for those seeking relief for prices they paid, replacement costs, doctor's visits and tests.

They and hundreds of others claim drug companies Mylan Pharmaceuticals and Actavis Totowa made and distributed pills with dangerous double doses of active ingredient.

Economic injury claims will meet a lower standard of causation than personal injury claims, according to attorney Fred Thompson of Motley Rice in Mount Pleasant, S.C.

"Unlike the personal injury claims pending before the court, the class action plaintiffs need not establish that they received or ingested any excessive dose Digitek tablets," he wrote on Jan. 21.

Goodwin presides over Digitek cases from federal courts around the nation by appointment of the U.S. Judicial Panel on Multi District Litigation.

Hundreds of other cases remain pending in state courts.

Lawsuits started in 2008, after the Food and Drug Administration recalled pills from a plant in New Jersey.

Defendants claim that no plaintiff has produced a double dose pill.

Lawyers dismissed dozens of cases last fall after defendants found they sued without examining medical records or conducting any other investigation.

An economic injury class action wouldn't require medical evidence or proof of any loss beyond the trivial.

Peter Konek, one of Thompson's class representatives, claims damages of $74.28.

"Mr. Konek paid $20 for five scripts of Digitek, $46.28 for four scripts of Lanoxin after the recall, and $8 for one script of Digoxin," Thompson wrote.

"He was angry that this altered pill could cause an overdose," he wrote.

"Consequently, he called his golfing buddy, Steve Foulston, who referred him to counsel who now represent him," he wrote.

Class representative Lorena Ard incurred copayments for medical providers and spent money on transportation to and from providers, he wrote.

She has 117 worthless Digitek tablets for which she paid, he wrote.

He wrote that class representative William Lange pursued a class action after a pharmacist mentioned the possibility.

Class representative Judy Whitaker presents a different economic injury, blaming Digitek for the death of her mother, Anna Fight.

"She experienced nausea, weight loss, fatigue, two strokes and ultimately death because of Digitek," Thompson wrote.

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