Rare joint motion for remand granted in case against Charleston Area Med Center

By Steve Korris | Aug 5, 2010


CHARLESTON – U.S. District Judge John Copenhaver pleased both sides by sending a suit against Charleston Area Medical Center to Kanawha County circuit court.

He granted a rare joint motion for remand on Aug. 4, in a drug contamination suit that James Bradley filed in Kanawha County last November.

Bradley originally sued Baxter Healthcare and other companies, claiming an injection of blood medicine Heparin caused injuries that required amputation of toes.

He also sued the medical center, where he received the injection.

Baxter Healthcare removed the case to federal court, claiming Bradley sued the medical center for no reason but to defeat federal diversity jurisdiction.

Copenhaver took the case, but not for long.

In February, the U.S. Judicial Panel on Multi District Litigation consolidated the case with other Heparin suits from federal courts around the nation.

The panel transferred the case to multi district judge James Carr in Cleveland.

Charleston Area Medical Center didn't care to litigate so far away, and it petitioned the panel to sever the claim against it from Carr's proceedings.

In June, the panel severed the medical center and sent it back to Copenhaver.

The medical center didn't care to litigate there either, and neither did Bradley.

On July 22, they jointly moved to remand the case to Kanawha County.

"Because of the actions of the pharmaceutical defendants, who are no longer parties to this matter, both plaintiffs and defendant CAMC find themselves in a forum that neither has selected," their lawyers wrote.

Rita Biser and Tonya Mullins of South Charleston signed for the medical center. Page Hamrick and Shannon Bland of Charleston signed for Bradley.

Copenhaver granted the motion and retired the case from his active docket while he awaits the outcome of the multi district proceedings.

In Cleveland, Carr plans to choose four cases and send them back to district judges for "bellwether trials" starting in March.

In preparation, defense lawyer James Silk of Toledo seeks summary judgment that would strip from the proceedings claims that lack merit.

"As the bellwether selection process has demonstrated, the vast majority of the cases filed in this litigation are at odds with the consensus findings of the scientific community," he wrote on July 30.

Also preparing for trials, plaintiff liaison lawyer David Zoll of Toledo seeks discovery of company wide quality systems at Baxter.

"The lack of quality controls, lack of quality systems, and Baxter's continuous process of putting profits ahead of people, sacrificing quality at the expense of lives and health, shows a fundamental failure of Baxter as a quality organization," he wrote on Aug. 2.

Carr scolded both sides on Aug. 3, as he granted a motion extending time for the defense to designate portions of depositions as confidential.

"Neither party has adequately explained what is going on," he wrote.

Plaintiffs didn't explain why the situation was so extraordinary that they did not extend professional courtesy rather than oppose an extension, he wrote.

Defendants didn't explain the delay, he wrote.

"I infer that this is work that just didn't get done on time, and while time was passing, defendants' counsel assumed that delay wouldn't matter to plaintiffs," he wrote.

"Apparently it does. But I don't know why it does," he wrote.

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