Digitek lawyers broke rules, attorney claims

Steve Korris Oct. 10, 2011, 1:32pm


CHARLESTON, W.Va. (Legal Newsline) - Lawyers for drug maker Actavis broke ethical rules by asking expert David Bliesner about errors in a declaration for a case in West Virginia while deposing him for a case in Oklahoma, according to lawyer Don Ernst.

On Sept. 30, Ernst asked U.S. District Judge Goodwin to sanction Actavis lawyers and rule that they can't refer to Bliesner's deposition.

He wrote that they didn't tell him they would depose Bliesner in the Oklahoma case.

"While plaintiffs do not contend that defendants are precluded from deposing disclosed experts in other litigation, where (as here) it is clear that their intent was to develop evidence for use in this case, opposing counsel must at a minimum be given reasonable notice of the deposition," he wrote.

"Defendants went well beyond the confines of Dr. Bliesner's opinions in the Oklahoma case and were specifically cross examining him on his expert report and declaration submitted in this federal action.

"The court should not permit defendants to benefit from its attorneys' transgressions."

Ernst, of San Luis Obispo, Calif., represents the family of Daniel McCornack, from the same city, in a claim of wrongful death from heart medicine Digitek.

Goodwin, who presided over settlement of about 3,000 Digitek suits from federal courts around the nation, now presides over two.

In the McCornack case, in August, Ernst filed a declaration that Bliesner had signed.

On Sept. 8, Actavis asked Goodwin to strike it as a sham affidavit.

On Sept. 19, at a deposition in Florida for the Oklahoma case, Actavis lawyer Michael Anderton of Cleveland pulled Bliesner through a series of admissions.

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

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

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

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

Anderton said, "How do you make a mistake like that, Dr. Bliesner?"

Bliesner said, "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."

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

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

Anderton read that they stored the recalled product in a warehouse and kept producing Digitek, and said, "They didn't make any other Digitek after the recall, did they?"

Bliesner said it was an error, and then he rose to his own defense.

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

Actavis lawyer Richard Dean of Cleveland provided a transcript to Goodwin on Sept. 27, in support of the motion to strike the declaration.

Ernst objected, calling the errors "alleged inconsistencies suggested by the defendants."

"If defendants wish to quibble with Dr. Bliesner's typographical errors, or what it means to be out of specification, they will have an opportunity to do so through their own retained experts," he wrote.

On Oct. 4, Dean replied, "Defendants had an absolute right to thoroughly examine Dr. Bliesner about these opinions."

He wrote, "Indeed, had they not conducted such an examination, defendants' counsel would have failed their clients," he wrote. "The contradictions exposed by Dr. Bliesner's testimony are not 'alleged inconsistencies' that are confusing or vague."

He asked Goodwin to reject any suggestion that he should impose sanctions.

"In fact, the circumstances surrounding this issue strongly suggest imposing sanctions on plaintiffs' counsel," he wrote.

More News