West Virginia Record

Monday, July 15, 2019

Goodwin will allow expert's testimony about Digitek

By Steve Korris | Oct 28, 2011

CHARLESTON – U.S. District Judge Joseph Goodwin will admit testimony of medical expert David Bliesner that he signed a declaration full of errors when Goodwin holds a wrongful death trial against drug maker Actavis.

On Oct. 21, Goodwin denied a motion to strike a deposition of Florida physician David Bliesner from a suit against Actavis in Oklahoma state court.

In the deposition, Bliesner retracted many statements from a declaration he signed for the family of the late Daniel McCornack in Goodwin's court.

"I don't think there is any correlation between errors in a report and the overall conclusion in the end," Bliesner said.

McCornack's family alleges that heart medicine Digitek caused his death.

The family argued that Actavis improperly questioned Bliesner in the Oklahoma case, Johnson v. Actavis, but Goodwin disagreed.

He held that because Oklahoma doesn't require a report from an expert, Bliesner's opinion was to be determined through the deposition.

"I find that the defendants' examination of Dr. Bliesner about the expert report and the declaration was a proper and appropriate examination of the entire opinion he intended to proffer in Johnson," Goodwin wrote. "It was Dr. Bliesner, not opposing counsel, who brought both documents containing opinions into play by stating in the declaration that opinions stated therein are reflected in his expert report.

"One cannot verify as much without examining both of the documents and their author."

He denied sanctions, finding Actavis violated no rule of procedure or conduct.

Goodwin presides over two Digitek suits remaining from more than 3,000 that the U.S. Judicial Panel on Multi District Litigation assigned to him in 2008.

Lawyers settled most cases last year, for $10 million.

Don Ernst of San Luis Obispo, Calif., representing the McCornack family from the same city, filed Bliesner's declaration in August.

Actavis moved to strike it on Sept. 8, calling it a sham affidavit.

On Sept. 19, Actavis lawyer Michael Anderton of Cleveland deposed Bliesner for the Oklahoma case and pulled him through a series of admissions.

Anderton read a bullet confirming batches of tablets with assays out of specification, and Bliesner said it was an incorrect statement.

Anderton read about blend uniformity defects, and Bliesner said it was an error.

Anderton asked if Actavis employed Dan Bitler in charge of quality from 1995 to 2008, Bliesner said it was a typographical error.

Anderton read that product was released to market on Dec. 5, 2007, and Bliesner said it was an incorrect date.

Anderton asked how he could make a mistake like that.

"When you're reviewing thousands and thousands and thousands of documents that have pages of documents that have no lineage or connection to it, it's very easy to get a date messed up," Bliesner said.

Anderton read that the Food and Drug Administration inspected Actavis due to deficiencies in prevention and remediation of double thick tablets and blending failures.

He asked if that was why FDA conducted the inspection, and Bliesner said it was an incorrect statement.

Anderton read that they kept producing Digitek, and Bliesner said it was an error.

"Because there's errors in the written document after a review of various other documents that are all thrown together and handed out in piecemeal fashion and say that's because somebody has got poor analytical skills, that's just a total stretch and I won't stand for that." Bliesner said.

Goodwin plans to set trial dates for the last two Digitek cases after resolving disputes over qualifications of experts.

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