Sanofi-Aventis motion to dismiss Ketek claims denied

Ann Knef Sep. 25, 2008, 3:31am


St. Clair County Circuit Judge Patrick Young has denied a defense motion to sever the claims of 59 plaintiffs in a product liability suit filed against Sanofi-Aventis over its antibiotic drug Ketek.

Plaintiffs from around the country, including one from St. Clair County, sued the French pharmaceutical company in November 2007 claiming injury from using the drug designed to treat moderate respiratory infections.

They claim the drug company knew there was an increased risk of Ketek consumers suffering injuries or death from liver failure and hepatics injury.

Their lawyers, Christopher Cueto of Belleville and John Driscoll of St. Louis, have argued that jurisdiction is proper in St. Clair County since the company transacts business in Illinois.

Cueto also has a pending consumer fraud class action lawsuit against Sanofi-Aventis in St. Clair County. Filed earlier this year, the suit alleges the pharmaceutical over-marketed Ketek while downplaying the drug's risks.

In an order entered Sept. 9, Young also denied Sanofi-Aventis' motion to dismiss or transfer the product liability claims of non-St. Clair County residents for forum non conveniens.

"…Defendant has failed to establish that the Plaintiffs' chosen forum is inconvenient to the Defendant and that another forum is more convenient to all parties," Young wrote. "In fact, the very nature of this case is that there is no forum which has a predominate factual connection to the litigation and could, therefore, be considered more convenient than the forum selected by the Plaintiffs."

Sanofi-Aventis, represented by Stephen G. Strauss of Bryan Cave in St. Louis, stated in a proposed order that "Plaintiffs seek to join in one lawsuit the claims of 60 different people from 27 different states."

"Plaintiffs were prescribed Ketek by different doctors and for different purposes," Strauss wrote. "Plaintiffs purchased Ketek at different pharmacies, took Ketek during different periods of time for different lengths of time, and were given different information about the drug. Plaintiffs have different medical histories, allege varying degrees of injury, and were treated by different doctors for those alleged injuries."

Strauss had proposed the claim of Dorothy Ray of Swansea remain in St. Clair County; the claim of Cynthia Hamilton of Alton be transferred to Madison County; the claims of other state residents be given individual case numbers; and the claims of 56 non-Illinoisans be dismissed.

He argued at a hearing Aug. 27 that plaintiffs in product liability claims against pharmaceuticals have "highly individualized claims."

"...[P]laintiffs who simply allege they took the same drug do not meet the same transaction or occurence requirement for joinder," Strauss said.

Strauss argued that judges in Madison County have severed claims in "four factually analogous, multi-plaintiff cases" involving prescription drugs Vioxx, Celebrex and Bextra. He said Circuit Judges Daniel Stack, David Hylla and Lola Maddox have found that multiple plaintiffs in those cases were not part of the same transaction or ocurrence.

'Flaw of the young lawyer'

Judge Young ultimately denied Sanofi-Aventis's motions to sever and to dismiss or transfer 59 of 60 plaintiffs' claims. But twice during a hearing last month, Young scolded co-plaintiffs' counsel John Driscoll for interrupting defense attorney Stephen Strauss.

In the second instance, Driscoll was admonished for again interrupting Strauss while he argued against St. Clair County being a convenient forum for his client, whose U.S. headquarters is in New Jersey.

Before Young lashed out, Driscoll had stated, "I truly understand and appreciate they do not want to be in St. Clair County. I understand that, but they need to do more than just say that. They need to come forward with affirmative material in the record on each factor."

Strauss responded that Driscoll's argument was "without substance."

"There is no such requirement for the defendants to go out and find another forum," Strauss said. "Where is the requirement that the defendants find a better place? The fact is, this is the wrong place for 56 of these people, and for three of them it's the wrong county."

He also argued that the "only convenience" plaintiffs' counsel addressed was that of the lawyers.

"What is the convenience for someone from Utah to come to Illinois?" Strauss said.

He suggested that New Jersey might be a convenient place for cases to be heard.

"I'm going to burst," Driscoll interrupted. "I'm going to burst."

Young: You can't help but bite at the bit. I don't care what I do.

Driscoll: That's right.

Young: I'll embarrass you a thousand times.

Driscoll: That's right. The plaintiffs--

Young: That's a definite flaw of the young lawyer.

Driscoll: I want to tell you all five reasons I'm right, Your Honor, not just one.

Young: Do you realize that is such a flaw? As a lawyer, you're going to have to learn to contain yourself.

Driscoll: I do. I do.

Young: Or you make a fool of yourself or you force me to, and I don't want to do that. There isn't any reason for that. You don't need to point your finger at me because it's not going to help you.

Driscoll: Forgive me, Your Honor.

Young: And if you want to ask me leave after he's done for some additional argument, you can do it in that vain, but not interrupting him while he is arguing.

Driscoll: Yes, Your Honor.

Young: Okay. I wouldn't allow him to do that to you, don't expect me to allow you to do it to him.

Driscoll: Yes, Your Honor.

Young: No matter how bad it would hurt. Are we on the same page now?

Driscoll: We are, Your Honor.

Young: Please proceed.

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