Goodwin won't budge on Digitek decision

By Steve Korris | Oct 28, 2010


CHARLESTON – Plaintiff lawyers who couldn't keep up with U.S. District Judge Joseph Goodwin in national litigation over heart medicine Digitek couldn't convince him he made a mistake when he rejected a class action for economic losses.

On Oct. 20, he denied their motion to reconsider a decision he reached in May.

He reacted personally to their criticism and their lament that he acted prematurely.

"The representatives do not explain why the potential class members have not had sufficient time to make informed judgments about their claims during the time this action has been pending," he wrote.

"The schedule for class certification has been set for some time," he wrote.

"I provided ample time for discovery," he wrote.

He attacked their suggestion that he could reduce the scope of the class by limiting it to individuals who suffered specific kinds of economic damage.

He wrote that "neither I nor the defendants are positioned to advocate for certification or to construct a detailed plan to manage the collective litigation."

He attacked their claim that concerns about individual issues predominating over class issues were hypothetical or could be easily dealt with through claims administration.

"I devoted over half of the Rule 23 analysis to the subject of predomination," he wrote. "I based that discussion on controlling precedent and the undisputed record.

"I must respectfully disagree with the representatives' characterization."

He wrote that he explained at length why a nationwide class was unworkable under the circumstances and at odds with controlling authority.

He wrote that as a fallback, plaintiffs wanted to certify state classes for New Jersey, Kentucky, Kansas and West Virginia.

"The apparent choice of law quagmire aside, there are multiple other reasons why the certification of individual state actions will not work," he wrote.

He quoted his earlier order predicting a vast gulf between claims of class representatives and class members.

He quoted his finding that he couldn't establish predomination even in single states.

He quoted his concern that an economic loss class action might derail case management in complicated state and federal proceedings.

Litigation started in 2008 after Actavis Totowa recalled pills from a factory in New Jersey upon discovering that some might pack a dangerous double dose.

As lawsuits multiplied in federal courts, they multiplied also in state courts of West Virginia, Pennsylvania and New Jersey.

Some plaintiffs claimed personal injuries and some claimed economic losses.

Economic losses ran across a spectrum from replacement drugs to travel costs, eyeglasses and an enema.

The U.S. Judicial Panel on Multi District Litigation consolidated federal cases and appointed Goodwin to preside over them.

Litigation started losing steam after Goodwin ruled that Actavis and Mylan could see what medical records plaintiff lawyers possessed.

Some didn't possess any, and some didn't possess enough to support a claim.

Litigation lost more steam when Goodwin denied a class action on economic losses.

On Sept. 1, the parties announced settlement.

They haven't settled everything, for 35 cases remain active.

On Oct. 21, Goodwin summoned counsel for the 35 to a hearing on Nov. 17.

He wrote that they would address "case events and deadlines necessary to bring these cases to a speedy and final judgment."

The next day, lead plaintiff lawyer Fred Thompson of Motley Rice in Mount Pleasant, South Carolina, wrote that he would proffer a scheduling order at the hearing.

Among the 35 cases he identified "differing counsel, distinguishable claims and roles in the litigation, and conflicting schedules."

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