Seven Digitek plaintiffs want cases kept alive

By Steve Korris | Dec 10, 2010


CHARLESTON – Seven plaintiffs whose lawyers missed a mandatory hearing in national litigation over heart medicine Digitek plead to keep their cases alive.

The lawyers have explained to U.S. District Judge Joseph Goodwin why they didn't show up on Nov. 17, and why he shouldn't dismiss their clients.

He announced their names in court but did not identify them in his daybook entry. Their explanations don't appear in the public record.

Their cases represent scraps of mass litigation that most lawyers settled with Actavis Totowa and Mylan Pharmaceuticals in September.

Goodwin presided over the mass by appointment of the U.S. Judicial Panel on Multi District Litigation.

Some plaintiffs claimed injuries and some claimed economic damages, but Goodwin denied certification of an economic class action.

Upon settlement, some plaintiffs opted out and some stuck on the fence.

Goodwin rounded up their lawyers in his court and started planning trials.

Now Actavis Totowa and Mylan wonder if the seven strays intend to proceed.

On Nov. 29, defense counsel Matthew Moriarty of Cleveland asked Goodwin to set a Dec. 10 deadline for them to declare whether they intend to proceed.

"Defendants have no comment about whether those explanations constitute good cause sufficient to avoid imposition of a sanction," he wrote.

"The more important thing for the defendants to know, however, is whether these cases are going to be prosecuted or dismissed," he wrote.

In one case, he wrote, he can't tell which of two lawyers represents the client. In another, he wrote, a family wants time to decide.

In another, he wrote, an unauthorized family member opted out. In another, he wrote, a plaintiff who sued after settlement must opt in rather than out.

In another, he wrote, a plaintiff says he opted out but didn't show up. In another, he wrote, a lawyer was under the impression it wouldn't be filed.

In another, lawyers say they didn't know the client opted out.

As of Dec. 8, Goodwin had not granted a Dec. 10 deadline.

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