Rhode Island news
Federal court in R.I. given key role in Davol suits
01:00 AM EDT on Monday, October 22, 2007
PROVIDENCE — For the first time, lawsuits filed throughout the country about the same issue are being transferred to the U.S. District Court in Providence for pretrial proceedings and possible settlement.
Since its creation, in 1968, the Judicial Panel on Multidistrict Litigation has centralized about 250,000 lawsuits, including high-profile litigation over asbestos, breast implants and the arthritis drug Vioxx. Now, the panel is sending Rhode Island more than 100 cases filed in federal courts over Composix Kugel Mesh hernia-repair patches made by Davol Inc., based in Cranston.
Chief U.S. District Judge Mary M. Lisi will oversee pretrial matters in at least 108 federal cases. Superior Court Judge Alice B. Gibney will handle an additional 50 individual cases filed in state court. And lawyers say the number of claims could climb, inasmuch as the hernia-repair devices have been implanted in about 100,000 people.
The lawsuits claim Davol made defective implants that have broken or otherwise failed, causing bowel perforations or blockage, potentially leading to internal bleeding, serious infections and fistulas. In some cases, the devices are allegedly linked to deaths. The suits claim Davol waited too long to notify the public and to conduct recalls. The Food and Drug Administration has reported “discrepancies” and “inconsistencies” in how Davol tracked and analyzed device-related complaints, according to The New York Times.
Davol’s parent company, C.R. Bard Inc., has said it acted responsibly and did not recall the product sooner because complaints about failures were too few and failed to raise any alarms. Last week, spokeswoman Holly P. Glass said, “As this case is in active litigation, we will not discuss the details of the case, other than to say that Bard and Davol are aggressively defending against these lawsuits.”
“This is the first time in the 40-year history of the Judicial Panel on Multidistrict Litigation that cases have been assigned to the District of Rhode Island, and I think that is of some historic moment,” Lisi said. “This really shines a spotlight on the court because it is a recognition from a national panel of our ability to handle a complex, very substantial piece of litigation.”
Plaintiffs asked to consolidate the cases in Rhode Island, while defendants asked to consolidate the cases in Alabama, Missouri, Arkansas or New York.
The Judicial Panel on Multidistrict Litigation, based in Washington, D.C., chose Rhode Island. “Although any of the suggested districts would be an appropriate transferee forum for this litigation, we are persuaded that this litigation should be centralized in the District of Rhode Island,” the panel’s chairman wrote in an order. “Davol’s headquarters are located within this district and thus witnesses and relevant documents will likely be found there.”
The U.S. District Court in Providence is receiving the additional cases although it has been shorthanded since its former chief judge, Ernest C. Torres, curtailed his caseload and assumed senior status in December. The White House has not nominated anyone to fill the vacancy.
Lisi was asked how the vacancy might affect the court’s ability to handle the influx of hernia-patch cases. “We’re doing fine,” she said. “We have an excellent staff here at the District Court, and that makes my job easier.” She said she would be assisted by Magistrate Judge Lincoln D. Almond and his staff in handling the new cases.
Clerk of Court David A. DiMarzio said the court usually handles 550 to 600 civil cases per year, but it has 829 civil cases pending so far this year, including 253 stemming from the Station nightclub fire, which killed 100 people in 2003. On the criminal side, the court has cases involving 97 defendants pending so far this year, he said.
Three of the Station fire cases were transferred to Rhode Island from Connecticut and Massachusetts, but those transfers did not involve the Judicial Panel for Multidistrict Litigation, and they were transferred here for all purposes, including trial and not just pretrial matters, DiMarzio said.
Lisi will handle pretrial matters such as motions seeking to dismiss cases and motions spelling out what information the plaintiffs will be entitled to get from the defendants. In at least five of the cases, lawyers are seeking class-action status, and she will rule on those motions.
Lisi will also oversee any settlements. Cases that cannot be resolved will be returned for trials in the federal courts in which they originated. Three of the cases originated in Rhode Island, so those would remain here if they can’t be settled.
“Obviously, settlement is the ultimate goal, but before that, lawyers need to do their due diligence,” Lisi said. “The goal is to try to settle as many as possible so as few as possible go back for trial.”
A 12-member steering committee of lawyers has been established to represent the plaintiffs — similar to the committee being used in the Station fire litigation. Three lead lawyers have been named, including Donald A. Migliori, who is filling the key role of plaintiffs’ liaison counsel.
Migliori, a 41-year-old Wakefield resident and Brown University graduate, works in the Providence office of the law firm Motley Rice, and is one of the lead lawyers representing families of 9/11 terrorist-attack victims in lawsuits against airlines, security companies and airport owners. He has been involved in multidistrict litigation in several other cases, including lawsuits filed against those who financed al-Qaida and carried out the 9/11 terrorist attacks.
“This is necessarily national litigation with the epicenter here in the state of Rhode Island,” Migliori said of the hernia-patch litigation. “This case involves a Rhode Island corporation that has in its conduct affected at least 100,000 people, all of whom deserve efficient and effective adjudication. Our District of Rhode Island has the capacity and the expertise to give our clients fair and expeditious dispute resolution.”
Migliori said there were no Rhode Island plaintiffs so far. “But discovery is to find out where the 100,000 products ended up, and undoubtedly one will be a Rhode Islander,” he said. “Motley Rice is literally screening 1,000 cases per month. People will find out tomorrow, not just yesterday, whether the Kugel Mesh product is affecting their health.”
During an initial conference Sept. 27, Lisi introduced herself and court staff to more than 50 lawyers involved in the litigation.
Migliori said, “It was a dignified and appropriate way for the court to welcome litigants from all over the country to Rhode Island for Rhode Island’s first multidistrict litigation, emphasizing how in Rhode Island we practice a professional and civilized law where you are expected to be polite and respectful while representing your clients.”
Lisi said, “I wanted to make it clear we are a small court with a relatively small number of attorneys practicing in federal court. We take pride in our smallness because it fosters that civility that makes us more efficient.”
The court is highlighting information about the litigation on its Web site, www.rid.uscourts.gov. (Click on the button titled “MDL-1842”).
Gibney, who has handled asbestos and lead-poisoning cases over the years, said she recently introduced herself to lawyers involved in the hernia-patch cases filed in Superior Court. She compared her role to an air-traffic controller who will direct the litigation, taking action when necessary and trying to help the parties reach settlements when possible.
Gibney said she had no backlog of cases and would be able to handle the hernia-patch litigation. She said she would probably schedule those cases for each Monday, if warranted. “My concern is to be efficient and available,” she said.
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