Napoli firm's Actos suit tossed because of paralegal's mix-up

By Glenn Minnis | Aug 28, 2017

WILMINGTON, Del. (Legal Newsline) – The Delaware Superior Court has rejected a woman’s lawsuit over the prescription drug Actos because of a mix-up at the law firm representing her.

Judge Jan R. Jurden ruled Aug. 7 that counsel for Elisha Ballard’s neglected to formally serve Takeda Pharmaceuticals and Eli Lilly within the legally established 120-day time limit, and never sought an extension from the court in a timely manner as required under Superior Court Civil Rules.

Court records show that nearly two months after the deadline passed, counsel for the plaintiff finally filed a Motion for Order Extending, for Cause, The Time Limit for Service for Process Under Rule of the Superior Court Civil Rule.

As one of a number of Actos-related cases filed in the Delaware court by James D. Heisman of Napoli Shkolnik LLC, Ballard charged in October 2016 that use of the medication led to her bladder condition.

At some point during the proceedings, counsel for Ballard told the court the error in filing stemmed from a clerical error involving a paralegal-level staffer working on cases in which other plaintiffs had similar names and circumstances.

In rendering its decision, the court stipulated “to find excusable neglect, the court must find neglect which might have been the act of a reasonably prudent person under the circumstances. What is troubling in this case is not that a mistake occurred, but that there were multiple opportunities where counsel should have figured out that something had gone awry."

The court added "a reasonably prudent attorney should and would have been sensitive to the possibility of confusion given the number of Actos cases and the fact that there were two Actos plaintiffs with the same last name.”

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