Lawyers pursue Digitek wrongful death case outside of MDL

By Steve Korris | Aug 11, 2011


CHARLESTON – Mimi Rivera-Vega of Texas endured 12 years of progressive heart disease that led to a transplant in her final month, yet surviving spouse Scottie Vega blames her death on a pill she swallowed.

Vega and minor son Christopher allege in federal court that heart medicine Digitek caused her death in 2008.

Their Houston lawyers, Jimmy Williamson, Michael Kerensky and Cyndi Rusnak, seek damages from drug maker Actavis and distributor Mylan.

Actavis and Mylan settled more than 3,000 Digitek suits for $10 million last year, but the Vegas elected not to join the settlement.

Another family that stayed out of the settlement relies on testimony of a California coroner who amended a death certificate a year and a half after the death.

Six suits that started after the settlement also remain pending before U.S. District Judge Joseph Goodwin.

He plans a hearing on Sept. 14 and 15, on challenges Actavis and Mylan raised to qualifications of expert witnesses.

Actavis moved for summary judgment in remaining cases on Aug. 3, arguing that no one came forward with evidence that a single tablet was out of specification.

Richard Dean of Cleveland wrote that "discovery has run its course and all plaintiffs have to show for it is a collection of expert witnesses, all of whom concede that they have no direct evidence that Actavis marketed defective tablets."

For Mylan, Harvey Kaplan of Kansas City supported the motion.

"Plaintiffs have had ample time to produce evidence that Mylan defendants distributed and plaintiffs actually consumed defectively manufactured Digitek tablets," he wrote.

In 2008, Actavis recalled a batch of pills from a plant in Little Falls, N.J., due to fears it had produced pills of double thickness.

A cascade of federal suits followed, and the U.S. Judicial Panel on Multi District Litigation assigned them to Goodwin.

Some alleged wrongful death and other personal injuries, and some proposed class actions over economic damages.

Goodwin denied certification of a class action, finding individual issues predominated over common issues.

Depositions of experts for plaintiffs with injury claims went so poorly last summer that settlement followed in September.

At a hearing last November, Goodwin asked who would volunteer for the first trial.

Kerensky said, "Sure, judge, we'll go first."

Goodwin accepted the offer but didn't set a trial date.

On Aug. 3, Dean asked him to preclude testimony from Rivera-Vega's physician, Reynolds Delgado.

Dean wrote that "his causation opinions were developed only for litigation."

He wrote that because of failure of heart devices, Rivera-Vega underwent leg amputations and suffered multiple organ failures.

He wrote that she had a transplant and died 26 days later.

He wrote, "Dr. Delgado completed the death certificate, five months after the recall,
indicating that her causes of death were congestive heart failure and cardiomyopathy."

He wrote that after Rivera-Vega died, Delgado spoke with plaintiff's counsel and first expressed the view that Digitek was to blame.

In the other case that the settlement didn't settle, Kathy McCornack of California and son Daniel McCornack Jr. blame Digitek for the death of Daniel McCornack Sr.

In 2009, Actavis and Mylan deposed medical examiner Richard Mason, who performed the autopsy.

This June, they moved to depose him again.

They wrote that immediately prior to his deposition, plaintiffs produced an amended death certificate and autopsy report finding a toxic level of active ingredient digoxin.

The family's lawyer, Don Ernst of San Luis Obispo, answered that as soon as Mason learned of the recall he ordered a supplemental blood test.

Magistrate Judge Mary Stanley granted a second deposition, finding defendants didn't have an opportunity to question Mason on his new opinions.

She found the delay in providing documents inappropriate.

Ernest asked Goodwin to reconsider her decision, writing that he had no control over Mason and didn't influence his decision to amend the certificate and report.

He wrote that "although plaintiffs had previously paid Dr. Mason, it was only as a professional courtesy to compensate him for taking his time to discuss his autopsy results with plaintiffs' counsel."

Goodwin denied reconsideration on July 14, finding Stanley's decision neither clearly erroneous nor contrary to law.

Next, he rejected motions from Ernst to extend discovery deadlines.

"This case seems riddled with a lack of diligence," he wrote on July 25.

He wrote that plaintiffs argued they needed to identify batch numbers so they could test pills from those batches.

He wrote, "The plaintiffs have had 97 or more of Mr. McCornack's very own unused Digitek tablets in their possession since the day this case was filed."

He wrote, "That is akin to searching every roof in a neighborhood for leaks in order to ascertain if one's own roof is waterproof."

Dean moved for summary judgment on Aug. 3, writing that McCornack had a long history of atrial fibrillation.

"He was also overweight and hypertense," he wrote.

Goodwin set an Aug. 24 deadline for plaintiffs to respond.

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