Judge cancels expert hearing in Digitek MDL

By Steve Korris | Aug 20, 2010


CHARLESTON -– U.S. District Judge Joseph Goodwin cancelled a unique hearing with four other judges on qualification of experts in litigation over heart medicine Digitek.

On Aug. 12, Goodwin stayed all discovery, motion practice, and any scheduled hearings until Oct. 26, "for reasons appearing to the court."

That means Digitek judges from state courts won't join him for a hearing in Philadelphia on Oct. 13 and 14, as he had arranged.

On Aug. 18, employees of judges who planned to share the bench with Goodwin said they didn't know about his order.

Goodwin had invited Alan Moats of Taylor County, West Virginia, Buddie Hahn of Orange County, Texas, Sandra Moss of Philadelphia, and Brian Martinotti of New Jersey.

Cancellation suggests surrender, for lawyers blundered in their eagerness to sue drug maker Actavis Totowa and distributor Mylan Pharmaceuticals.

Litigation started in 2008, after the Food and Drug Administration recalled a batch of Digitek, or digoxin, pills from a plant in Little Falls, New Jersey.

Some plaintiffs claimed personal injury and some claimed economic damages.

The U.S. Judicial Panel on Multi District Litigation consolidated federal cases and transferred them to Goodwin for pretrial proceedings.

Actavis and Mylan spent more than $100,000 to investigate injury and wrongful death claims, and the result more than justified the expense.

Death certificates of three plaintiffs blamed hip fracture, end stage heart disease, and internal bleeding with profound anemia.

Lawyers in many cases had no medical record of high digoxin levels when they sued, defense lawyer Richard Dean of Cleveland wrote to Goodwin last year.

"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.

He urged Goodwin to recognize the interest of all parties in the depletion of insurance proceeds in defense of meritless cases.

Plaintiff lawyers started dismissing cases, with one admitting on the record that his client didn't take the drug.

In another case, Goodwin refused to sign a dismissal order until someone explained to him what the plaintiff received through settlement.

The defense answered the next day that the plaintiff received nothing.

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

With 860 suits pending as of Aug. 18, the litigation has almost stopped expanding.

In the last three months, Goodwin has gained 19 cases through transfers while shedding 16 through voluntary terminations.

Class action lawyers also moved too fast, claiming damages on everything from eyeglasses and toll charges to insurance premiums and enemas.

They proposed at first to certify a national class action, but later offered an alternative narrowing it to New Jersey, Kentucky, West Virginia and Kansas.

Goodwin wouldn't follow them that far. He denied class certification in May.

"There is a big imbalance between common and individual issues," he wrote.

"Typicality is largely absent," 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.

Fred Thompson of Motley Rice moved to reconsider, and the motion remains pending.

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