Crazy claims no reason to reject class action, lawyer says

Steve Korris Jun. 18, 2010, 6:30pm


CHARLESTON, W.Va. (Legal Newsline) -- Ludicrous claims shouldn't have caused U.S. District Joseph Goodwin to reject a class action over economic damages from heart medicine Digitek, according to Fred Thompson of Motley Rice.

On June 8, Thompson asked Goodwin to reconsider a May 25 order denying certification of a class action against drug maker Actavis Totowa and distributor Mylan Pharmaceuticals.

Thompson wrote that Goodwin "seized upon a few outrageous damages requests" to find that individual issues predominated over class issues.

"None of the items cited by the court have actually been requested in the present class litigation, however, and the claims administration process could easily reject such ludicrous claims should any potential class member attempt to make one," he wrote.

"Plaintiffs believe the court misunderstood the types of economic damages for which plaintiffs seek to recover on behalf of themselves and class members," he wrote.

"In actuality, none of the class representatives has requested the court to provide them compensation for any of the anecdotal items highlighted by defendants and the court -- gas money, eyeglasses, trip insurance, or even enemas," he wrote.

"Class representatives need not be legal scholars and, as plaintiffs indicated in their reply brief, many of the class representatives here are unsophisticated," he wrote.

"Accordingly, the fact that some of the class representatives may have unrealistic expectations about what kinds of damages can be recovered from a class action does not render them inadequate or their claims atypical," he wrote.

Goodwin presides over Digitek suits from federal courts around the nation by appointment of the U.S. Judicial Panel on Multi District Litigation.

Litigation began in 2008, after Actavis Totowa discovered 20 pills of double thickness in a batch at its plant in Little Falls, New Jersey.

Actavis Totowa recalled the batch, and no plaintiff has produced a double thick pill.

Some plaintiffs nevertheless claimed personal injuries and wrongful death. Others claimed only economic damages.

Thompson sought certification of a national economic damages class or single state classes in West Virginia, New Jersey, Kansas and Kentucky.

Goodwin denied both.

"There is a big imbalance between common and individual issues," he wrote. "Differences are bound to arise between the representatives and the class.

"There are even differences between the representatives themselves."

He wrote that some of them ingested Digitek and "experienced a physical benefit far outweighing any minimal economic loss associated with discarding the remaining dose or few doses they had left."

He declined Thompson's request to apply New Jersey law nationwide and wrote, "The transactions at issue here relate only minimally to New Jersey."

He wrote that he and colleagues in state courts have taken great care to track Digitek litigation for a just and efficient resolution.

"Adding a complex certified class to these already complicated state and federal proceedings makes little sense," he wrote.

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