Judge had all the facts, Digitek companies argue

By Steve Korris | Jul 2, 2010


CHARLESTON – U.S. District Judge Joseph Goodwin knew all he needed to know when he rejected a consumer class action over heart medicine Digitek, according to drug maker Actavis Totowa and distributor Mylan Pharmaceuticals.

On June 22, defense lawyer Richard Dean of Cleveland opposed a motion from Motley Rice law firm calling on Goodwin to reconsider his denial of class certification.

"Plaintiffs do not identify any new law or evidence that would support a different outcome, nor do they identify any clear legal error on the court's part," Dean wrote.

He reminded Goodwin that economic damage claims of class representatives included toll charges, eyeglasses and enemas.

He didn't call their claims ludicrous or outrageous but he didn't need to, because their own lawyer had already used those words.

In the motion for reconsideration, Fred Thompson of Motley Rice wrote that Goodwin seized upon "a few outrageous damages requests."

Thompson wrote that "the claims administration process could easily reject such ludicrous claims should any potential class member attempt to make one."

Dean answered that the claims demonstrated the vast array of individual damages that class members would seek under an extremely broad class definition.

He wrote that "limiting the types of damages in the manner that plaintiffs suggest would still require individualized factual determinations inappropriate for a class action."

He wrote, "Putting these determinations off until the claims administration process, as plaintiffs repeatedly suggest, would not make them go away."

He attacked Thompson's claim that Goodwin acted prematurely.

Dean wrote, "Plaintiffs had the burden to show why class certification was justified, and they have consistently failed to meet or even recognize that burden."

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

Litigation began in 2008, after Actavis Totowa discovered 20 pills of double thickness in a batch at its plant in Little Falls, New Jersey.

Actavis Totowa recalled the batch. No plaintiff has produced a double thick pill.

Some plaintiffs claim personal injuries and wrongful death.

For those claiming economic damages, Thompson sought certification of a national class action under New Jersey consumer fraud law.

As an alternative he proposed single state class actions for West Virginia, New Jersey, Kansas and Kentucky.

Goodwin denied both on May 25. "There is a big imbalance between common and individual issues," he wrote.

"Differences are bound to arise between the representatives and the class," he wrote. "There are even differences between the representatives themselves."

He wrote, "The transactions at issue here relate only minimally to New Jersey."

He wrote that he and colleagues in state courts have taken great care to track Digitek litigation for a just and efficient resolution.

"Adding a complex certified class to these already complicated state and federal proceedings makes little sense," he wrote.

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