CHARLESTON – Double thick pills of heart medicine Digitek reached the market and one of them killed Ralph McCornack, lawyers for his estate argue in federal court.
"Mr. McCornack's ingestion of such defective excess strength Digitek caused his death," Don Ernst of San Luis Obispo, Calif., wrote on Sept. 20.
His client and a client of Texas lawyers carry on litigation that once involved thousands.
Last year, they opted out of national settlement of claims that drug maker Actavis Totowa caused personal injuries and economic losses by producing double thick Digitek pills.
U.S. District Judge Joseph Goodwin plans to set trial dates for them after he decides whether to hear testimony from their experts.
He reviewed qualifications of the experts at hearings on Sept. 14 and 15.
Litigation started in 2008, after Actavis recalled a batch of Digitek pills from a plant in Little Falls, N.J.
The U.S. Judicial Panel on Multi District Litigation consolidated more than 3,000 Digitek suits in 2008, and assigned them to Goodwin.
He allowed Actavis to search medical records of plaintiffs, and Actavis discovered that many lacked any basis for their claims.
He denied certification of a class action on economic losses, finding that individual issues would predominate over common questions.
Last year, Actavis and a plaintiff steering committee settled most claims for $10 million.
Goodwin approved the settlement but allowed the McCornack estate and the estate of Texan Mini Rivera-Vega to continue pursuing claims.
After Goodwin's hearing on qualifications of experts, Actavis lawyer Richard Dean of Cleveland wrote that plaintiffs couldn't prove they experienced harm from Digitek.
"The difference between a normal sized and a double thick tablet is noticeable to the eye when not obscured by packaging," Dean wrote.
He wrote that McCornack possesses more than 90 pills but hasn't identified a double thick pill.
He wrote that it was impossible for Rivera-Vega to receive a double thick pill because she received her pills in a blister pack.
He wrote that a blister pack can hold at most a tablet ten percent in excess of size specifications.
Ernst answered that, "It stretches credulity to argue that such an extensive recall was initiated without defective product reaching the market."