Judge rejects Digitek class action

By Steve Korris | May 28, 2010


CHARLESTON, W.Va. (Legal Newsline) - U.S. Judge Joseph Goodwin sternly rejected a consumer class action over Digitek heart medicine on Tuesday.

"There is a big imbalance between common and individual issues," Goodwin wrote in an order denying class certification. "Complex conflict of law questions are involved."

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

Litigation started in 2008, after manufacturer Actavis Totowa discovered 20 double strength pills from a plant in Little Falls, New Jersey, and recalled a whole batch.

Plaintiffs also sued distributor Mylan Pharmaceuticals, three of its subsidiaries, and distributor UDL Laboratories.

Some claimed personal injuries, including wrongful death, while others claimed economic losses.

In six economic loss cases, Fred Thompson of the Motley Rice firm in Mount Pleasant, S.C., moved to certify class actions under state consumer fraud laws.

Goodwin looked for similarities among the six and didn't find many.

Alan Chambers of New Jersey sought to recover $15 in copayments and the cost of a doctor's appointment that he scheduled prior to the recall.

Dale Campbell of Pennsylvania claimed he suffered dizziness, nausea and palpitations as a result of taking Digitek.

"He was never told as much by a physician." Goodwin wrote.

Willie Wilburn of Illinois claimed weakness, dizziness, bad memory and fatigue.

"She has never told a doctor she thought Digitek hurt her," Goodwin wrote.

He wrote that she seeks to recover evaluation and testing costs, and reimbursement for two $5 copayments.

Peter Konek of Kansas, who received a replacement prescription a day after the recall, seeks $2.21 in reimbursement for 17 tablets he didn't swallow.

"He candidly admits that Digitek did its job for him," Goodwin wrote.

William Lange of Kentucky seeks fuel costs for two trips to a drug store less than a mile from his home, plus a $10 copayment for a prescription and the cost of seeing a doctor.

The sixth case involves two plaintiffs, with Judy Whitaker of Kentucky blaming Digitek for her mother's death and Lorena Ard of Indiana blaming it for economic damage.

Thompson proposed to apply New Jersey law to all economic loss claims because all harm occurred there.

Goodwin rejected his logic.

"The state in which each claimant was injured has an overriding interest in having its laws applied to redress any wrong done," he wrote. "The transactions at issue here relate only minimally to New Jersey."

He wrote that Kansas consumer protection law didn't appear to contemplate claims by those injured beyond its borders.

"I decline to expand beyond this line drawn by the Kansas Legislature," he wrote.

He similarly discarded West Virginia and Kentucky laws.

He also ruled that plaintiffs were not typical of the class they sought to represent.

"Differences are bound to arise between the representatives and the class," he wrote. "There are even differences between the representatives themselves."

He wrote that some class members used all their Digitek prior to the recall.

"After doing so, they experienced a physical benefit far outweighing any minimal economic loss associated with discarding the remaining dose or few doses they had left," he wrote.

Those who visited doctors after the recall might have experienced general symptoms that would have prompted a visit anyway, he wrote.

Although Thompson tried to identify a common question in the safety of pills Actavis recalled, Goodwin found the issue fragmented and individualized.

Not one double thick tablet has been identified as having reached the market, he wrote.

He wrote that if he certified a class, he would have to look at the purpose and timing of each doctor visit and maybe apportion the copayment depending on the outcome.

"That would require an unfathomable amount of resources," he wrote.

Plaintiffs sought new glasses, toll charges, insurance premiums, "and even the cost of two enemas," he wrote.

"The plaintiffs try to sweep this concern aside. Our court of appeals will not," he wrote.

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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