Blood Factor Lawsuit Update

Blood Factor Lawsuit Update - August 2004

In December 2003, the United States Judicial Panel on Multidistrict Litigation (MDL) transferred the federal blood factor class action lawsuit filed by Lieff Cabraser Heimann & Bernstein, LLP, Gullone, et al. v. Bayer, et al., from the Northern District of California in Oakland to the Northern District of Illinois in Chicago, as part of In re Factor VIII or IX Concentrate Blood Products Litigation, MDL No. 986, which we refer to as the “MDL.”

The case is now before the Honorable John F. Grady. Judge Grady oversaw the litigation by Americans with hemophilia who contracted HIV from defendants’ blood factor concentrates during the 1980s. Judge Grady is familiar with many of the issues that will arise in this case.

In March 2004, Judge Grady appointed Lieff Cabraser as lead counsel in the blood factor litigation. As lead counsel, Lieff Cabraser will guide the litigation effort and coordinate all plaintiffs’ counsel participating in the MDL.

The plaintiffs and defendants in the blood factor litigation are presently engaged in a preliminary “discovery” stage of the lawsuit. “Discovery” involves the exchange of information between parties. As part of plaintiffs’ discovery, plaintiffs seek to obtain documents and other information from the defendants to strengthen the case against the defendants on subjects on which the Court has allowed discovery.

As part of defendants’ discovery, each plaintiff must submit a “Preliminary Patient Profile Form” (PPF) by September 17, 2004. The PPF is a signed, sworn statement that summarizes each plaintiff’s case, contains relevant personal information, and identifies the brand or manufacturer of the factor concentrate plaintiffs used, the dates of use, and the source of the product(s) (hospital, pharmacy, clinic, or other supplier). Judge Grady issued an order on March 17, 2004, regarding this discovery.

At this time, plaintiffs’ counsel in the MDL are assisting with the production of PPFs for each retained client. People who are not represented at this time are not bound by the September 17, 2004 deadline to submit a PPF, but should act quickly to retain counsel and/or submit a PPF, or risk being potentially unable to bring a claim. Although Gullone was filed as a class action, the Court has stated it will likely decline to certify a class, and, at this time, only those plaintiffs who are represented in the litigation will benefit from any potential judgment.

After the September 17 deadline for submission of the PPFs, Judge Grady will likely hear a motion to dismiss the class allegations and to dismiss foreign plaintiffs’ claims for alleged lack of jurisdiction. Plaintiffs’ counsel is preparing to oppose these motions. However, if the class allegations are dismissed, the lawsuit will still proceed for all plaintiffs who are represented.

If any foreign claims are dismissed pursuant to the doctrine of forum non conveniens, the dismissal could be conditional, and the claimants may still elect to proceed in another jurisdiction.