Heparin Deaths

In our previous blog, we discussed the filing of more than 150 wrongful death cases against Baxter with respect to their sale and distribution of contaminated heparin in Cook County, Illinois. Today, we begin our discussion of the process those cases are going thru prior to trial. When a lawsuit is filed, it typically takes more than a year before it can be tried. Both sides have a right to put together their case and both sides have the right to find out what the other parties case is about. Deadlines are created for each side to name the expert witnesses upon which they will rely and to provide evidence to rebut the claims of the other side.

In addition, normally from very early on in the litigation, witnesses who have factual information about the events of what happened will be deposed. When the litigation is a complex as Baxter Heparin wrongful death litigation, things move slower than in an automobile accident case. The process of taking depositions and finding out what the other side is claiming, is called “discovery.”

The Illinois cases are currently in the stage of “discovery” after the court granted plaintiffs’ motion to strike all affirmative defenses alleged in their Answer by defendants Baxter International, Inc. and Baxter Healthcare Corporation (collectively “Baxter”). An affirmative defense is a claim by a defendant that even if all of the allegations against them are true, they still don’t have any responsibility for any number of technical reasons. The Court found that none of these technical claims protected Baxter from accountability here.

Plaintiffs have submitted to Baxter’s counsel their individual Plaintiff’s Fact Sheets in accordance with the judge’s orders, and defendants have been ordered to submit their own fact sheets in response to each case which has been filed against them. In addition, requests for production to and from the defendants (a form of written request that a party turn over documents) have been served and received. More than one million documents having been produced by defendants. Subpoenas for records have likewise been issued for all major Heparin drug distributors in order to establish the contaminated product’s chain of custody.

Oral depositions on key Baxter personnel are currently underway. On April 2, 2009, plaintiffs’ counsel took the deposition of Marie Keeley, Baxter’s Vice President for Business Operations, in order to gain a deeper understanding of Baxter’s existing sales and product distribution system. Other depositions scheduled involve Amy Gierytich and Tom Progar, Baxter employees who have been directly involved in handling Baxter’s first and second recall of Heparin products in January and February 2008, from recall strategy formulation and implementation to dealings with the Federal Food and Drug Authority and the Centers for Disease Control and Prevention. Baxter’s Vice President for Global Medical and Clinical Affairs, Francois Lebel, will also be deposed as well as Baxter’s designee of the person with greatest knowledge on causation.

In our next blog, we will discuss timing and future trial dates.

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Attorney Gordon Johnson
Chair Traumatic Brain Injury Litigation Group, American Association of Justice
g@gordonjohnson.com :: 800-992-9447 :: Attorney Gordon S. Johnson, Jr.

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