West Virginia Record

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Family plans to appeal Digitek ruling

By Steve Korris | Dec 8, 2011


RICHMOND, Va. – Survivors of California resident Daniel McCornack plan to challenge U.S. District Judge Joseph Goodwin's rejection of their wrongful death suit against drug maker Actavis Totowa.

Their lawyer, Don Ernst of San Luis Obispo, California, filed an appeal notice at the U.S. Fourth Circuit in Richmond on Dec. 3.

Goodwin granted judgment as a matter of law on Nov. 3, against McCornack's family and another family alleging fatal defects in heart medicine Digitek.

The cases persisted from national litigation that about 3,000 other plaintiffs settled last year, and Goodwin swept out the final pair with gusto.

"The plaintiffs' theory comes down to an attempt to use speculation about a defect to prove causation and speculation about causation to prove a defect," he wrote.

He wrote that McCornack had a long history of atrial fibrillation.

"He was also overweight and mildly hypertense," Goodwin wrote.

He wrote that McCornack took digoxin, the pill's active ingredient, for more than a decade without incident.

He wrote that on the first day of a week long camping trip with family and friends in 2008, McCornack set up camp and ate dinner.

"He drank between one and six cans of beer," Goodwin wrote. "After dinner he said he was bloated."

McCornack died at 12:52 a.m., he wrote.

He wrote that Santa Cruz County Coroner Richard Mason performed an autopsy and listed the cause of death as cardiac arrest.

"Neither Mr. McCornack's primary care physician nor his cardiologist learned of any signs of digoxin toxicity shown by him at or near his death," he wrote.

Actavis recalled Digitek 33 days later, after an inspector at a New Jersey factory spotted a double thick pill.

The recall prompted wrongful death and personal injury suits, along with class actions claiming economic losses. The U.S. Judicial Panel on Multi District Litigation consolidated federal cases and transferred them to Goodwin.

He granted Actavis access to medical records, and Actavis found that many plaintiffs sued with no evidence of injury. Goodwin and state court judges waited for someone to bring forth a double thick pill, but it never happened.

As the value of injury suits declined, Goodwin further weakened the plaintiff position by denying certification of a class action over economic loss.

He found individual issues would predominate over common issues.

Last year, Actavis agreed to provide $10 million to settle federal cases and $3 million to settle cases in state courts.

Defendants rarely end multi district litigation so cheaply, but the action in Goodwin's hadn't quite ended.

Some plaintiffs spurned the settlement, and all but two settled separately.

McCornack's family and the family of Mimi Rivera-Vega sought trials, but Goodwin turned them down.

"There has been no evidence that either of the decedents in these two cases, or their loved ones, ever saw a double thick Digitek," he wrote.

He wrote that coroner Mason changed the death certificate after plaintiffs retained him.

He wrote that the Food and Drug Administration exercised the better part of caution by ordering Actavis to recall Digitek.

"To say that it did so on the basis of a proven product defect is a leap of logic and simply untrue," he wrote.

He wrote that plant staff found 20 double thick pills among millions in the plant.

He wrote that plaintiffs must produce evidence to support opinions.

He wrote, "They have produced a pittance."

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