NoBlood

Jan B. Wade · #1 (**permalink**) 10-14-2004, 12:08 PM

http://www.law.com/jsp/article.jsp?id=1097686223340

Lieff Cabraser Sues Drug Makers Over Allegedly Tainted Blood
Justin Scheck
The Recorder
10-14-2004

Two decades after hemophiliacs first accused four drug makers of intentionally selling them HIV-contaminated blood products, lawyers from Lieff Cabraser Heimann & Bernstein are seeking class status for at least 2,000 U.S. and foreign plaintiffs who say they suffered similar damages.

The first discovery hearing in Gullone et al. v. Bayer Corporation et al., MDL 986, C03-2572, was scheduled for Wednesday in the U.S. District Court for the Northern District of Illinois. The complaint alleges that Baxter Healthcare Corp., Bayer, Armour Pharmaceutical Co. and Alpha Therapeutic Corp. sold contaminated blood serum overseas for nearly two years after they withdrew the product -- under FDA pressure -- from the U.S. market. Additionally, Lieff Cabraser lawyers say the companies knowingly infected Americans with hepatitis C.

"It's a story about companies knowing they had a blood product that was tainted. â€¦ The result was that 80 percent of the people who took this product died," said partner Robert Lieff, the lead attorney in the case.

An earlier round of litigation by HIV-infected hemophiliacs ended in a $600 million settlement with the drug makers. Lieff is optimistic that he can do better for this group of plaintiffs, partly because he believes the companies clearly demonstrated their negligence by continuing to sell products they'd pulled off the U.S. market. But winning class certification won't be easy for a group of plaintiffs oceans apart.

Lieff hopes to unify all the plaintiffs into a single class, even though they come from more than a dozen countries scattered across five continents and make extremely different claims. Nearly all of the American plaintiffs are living hepatitis C victims, whereas the foreign plaintiffs include relatives of deceased victims and even family members of victims infected with HIV by hemophiliacs who received contaminated blood serum.

Defense attorneys did not return phone calls by press time. A lawyer at a prominent San Francisco firm who has defended clients in similar cases, but wished to remain unnamed, said it would be a challenge to prove that there are "common issues of law or fact."

Though Lieff is pursuing class certification, he downplays the importance of winning it.

"It doesn't matter if the class is certified or not, because we're going to present at least 2,000 people," said Lieff. With the cases bundled under a multi-district litigation order, Lieff said he expects that even without class certification, they will be tried together.

In fact, the plaintiffs who secured the $600 million settlement from the drug makers had been decertified as a class. At the time, the attorney who led that litigation, David Shrager, credited the decertification with helping to persuade the drug makers to settle.

The drugs in question, known as Factor VIII and Factor IX, were considered miraculous when first released in 1980. They could stop profuse bleeding almost immediately, and quickly became a widely-used therapy. But the products were made from donated blood serum, and until 1983, donors were not screened for HIV.

The initial wave of lawsuits had mixed results for plaintiffs who had trouble proving that the companies were negligent. Some lost at trial, while most -- a total of 6,000 -- agreed to a 1997 settlement that awarded each family $100,000. The attorney who led the steering committee in that litigation, Shrager of Philadelphia's Shrager, McDaid, Loftus, Flum & Spivey, is not involved in the current case.

In 2000, Lieff Cabraser partner Donald Arbitblit represented nine victims who opted out of the group settlement. They reached a confidential settlement with the companies. That led to a windfall for Lieff Cabraser.

"Through that work, we became connected to what was a pretty connected network of worldwide hemophilia organizations," said Arbitblit.

Seven partners are working on the case, with Robert Nelson, Heather Foster, Morris Ratner, Fabrice Vincent and Elizabeth Cabraser joining Arbitblit and Lieff.

According to Lieff's class certification motion, international sales documents obtained in discovery from the previous suits show the drug companies marketing contaminated serum overseas when clean stocks were available. The documents also claim that the companies sold hepatitis C-tainted product in the United States for at least two years after contamination was found.

Arbitblit said the case has taken so long to develop due both to the long incubation periods for hepatitis C and AIDS and the initial reaction of hemophilia foundations to defend the drug makers.

But, Lieff said, plaintiff numbers have been growing recently. Lieff Cabraser sought plaintiffs overseas, and assigned 10 full-time staff nurses to review their medical records. Lieff says the clients have been easy to find. "You don't have to look for these people. They find us," he said. "This is the biggest thing in their lives. They're dying, or they've died, and the statute of limitations [for a wrongful death suit] starts running all over again when someone dies, so time is not going to save these defendants."

What may save the defendants, the defense attorney said, are jurisdictional questions. Judge John Grady could find that differences in national laws among the plaintiffs render the case too unwieldy to try in the United States. That's a concern, said Lieff, for plaintiffs from some countries. "You think you're going to get a fair shake in Argentina or Iraq?" he said.

Arbitblit said the case looks like it will proceed quickly. He expects an answer in the class certification motion by early winter.