O'Malley team shuts down case against Digitek

Steve Korris Mar. 17, 2011, 9:12am



CHARLESTON, WV – Former St. Clair County Circuit Judge Michael O'Malley and the firm that hired him to sue drug companies failed an early test of their collaboration.

In February John Carey, of Carey & Danis in Clayton, Mo., dismissed a suit blaming heart medicine Digitek for the death of Joseph Sleeter of Collinsville.

"Plaintiff received no consideration for agreeing to this dismissal," Carey wrote in a stipulation with drug maker Actavis Totowa and distributor Mylan Pharmaceuticals.

Carey shut the case down at federal court in Charleston, where District Judge Joseph Goodwin presides over Digitek suits from around the nation.

Carey sued Actavis, Mylan, and UDL Laboratories in federal court at East St. Louis on Aug. 26, on behalf of widow Gloria Sleeter.

She also sued Caraco Pharmaceutical Laboratories, producer of equivalent pills.

"Decedent Sleeter has suffered injuries, including his wrongful death, as a result of having been prescribed and/or ingested Digitek and Digoxin marketed, designed, manufactured, produced, supplied and sold by defendants," Carey wrote.

"Digitek defendants, by their inactions, proximately caused or contributed to the cause of decedent plaintiff Sleeter's injuries and wrongful death," he wrote.

O'Malley and Tiffany Yiatras, both of Carey & Danis, and Brian Wendler of Edwardsville attached their names to the complaint.

They amended it on Sept. 17, and District Judge Patrick Murphy found it faulty.

On Sept. 21, without a motion from any defendant, Murphy ordered Sleeter to amend it again.

He wrote that he discerned flaws in it with respect to federal jurisdiction in diversity.

"Unfortunately, the operative complaint in this case fails to allege that the amount in controversy here exceeds $75,000, exclusive of interest and costs," he wrote.

Murphy wrote that the complaint failed to identify UDL's state citizenship.

He took judicial notice of Secretary of State records showing UDL is incorporated under Illinois law.

"If so, UDL's presence in this case defeats complete diversity of citizenship, he wrote.

"Sleeter, if she wishes to remain in federal court, would do well to omit UDL as a party defendant in her second amended complaint," he wrote.

"As a final matter, the Court reminds Sleeter's counsel that the jurisdictional facts contained in Sleeter's second amended complaint must be alleged not on the basis of information and belief but on personal knowledge," he wrote.

Carey amended it the next day, dropping UDL and claiming the controversy exceeded $75,000.

In October, multi district judges in Washington transferred the case to Goodwin.

When Carey dismissed Actavis and Mylan, he separately dismissed Caraco.

Yiatras attached her name to stipulations dismissing Actavis and Mylan.

Wendler attached his name to the stipulation dismissing Actavis and Mylan.

Casey Flynn, of Carey & Danis, attached his name to the Caraco stipulation.

O'Malley didn't attach his name to either one.

As the multi district proceedings wind down, plaintiff lawyers have petitioned for defendants to pay them $4.7 million in fees and $1.4 million in expenses.

Actavis lawyer Richard Dean of Cleveland opposed the petition on March 15, writing, "If you weave a carpet that no one buys, the weaver should bear that loss."

"If the Court should somehow conclude that there is a basis for the petition, any award should be extremely small," Dean wrote.

"It is a settlement based upon nuisance value.

"It reflects the fact that plaintiffs never produced evidence that they possessed or ingested defective Digitek, and that their experts candidly conceded that there was no basis to conclude that Digitek reached consumers.

"Many plaintiffs have already dismissed their suits, having realized that they could not submit complete claim forms for lack of medical records documenting an injury.

"This is the result of plaintiffs' counsel hastily filing hundreds of lawsuits with no pre-suit investigation into whether their clients received defective product or whether there was unexplained digoxin toxicity in those clients."

He wrote that the settlement averaged about $3,100 per claim, adding that these were wrongful death and personal injury claims.

He wrote that under a typical fee arrangement, the average plaintiff would receive $2,000.

"That is not a substantial benefit or great result," he wrote.

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