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Harsh Words for Conduct in Thalidomide Cases

PHILADELPHIA (CN) - Citing dishonesty by the law firm Hagens Berman in bringing baseless thalidomide-birth-defects claims, a federal judge ordered sanctions.

Though thalidomide was pulled from the shelves in the 1960s for its association with fetal deformities and birth defects, and Billy Joel gave the onetime morning-sickness drug immortality by mentioning its victims in the 1989 hit "We Didn't Start the Fire," Hagens Berman Sobol Shapiro brought thalidomide lawsuits on behalf of 52 plaintiffs between 2011 and 2013.

With Grunenthal and Glaxosmithkline claiming that the lawsuits were too untimely - personal-injury claims face a two-year statute of limitations - Hagens Berman countered that the drugmakers' fraudulent concealment kept that clock ticking.

U.S. District Judge Paul Diamond said Monday that the drugmakers tried in vain during pretrial discovery to learn when and what the plaintiffs knew about the link between their birth defects and thalidomide.

"Defendants would likely have had greater success trying to nail butter to a tree," Diamond wrote.

With the plaintiffs providing misleading or "absurd" responses, among other "obstructive efforts," the drugmakers last year "obtained compelling evidence that the claims of several plaintiffs were not viable," the judge added.

The drugmakers learned that several of the plaintiffs had already sued over these same injuries years earlier, and one plaintiff was even still cashing settlement checks.

Though the drugmakers told Hagens Berman that it would not seek reimbursement of the costs related to any claims dismissed before April 11, 2014, Hagens Bermans did not dismiss a single case before that deadline, the court found.

Massive discovery ensued, and the evidence "belied the claims of almost all plaintiffs and often contradicted critical allegations in their complaints," Diamond wrote.

GSK and Grunenthal sought sanctions that summer for Hagens Berman's bad-faith prosecution of three cases in particular, and the court-appointed special master recommended in December that the court impose the requested sanctions.

Diamond did just that Monday, noting that there was also an issue of the firm's "discovery misconduct" amid a "disturbing course of events" in the fall during which Hagens Berman apparently tried to dismiss all but one of its clients' cases against GSK without their consent.

The special master is still considering that matter.

In trying to duck sanctions, Hagens Berman filed a 67-page brief that "appears to do little more than confuse and exhaust the reader," Diamond wrote.

"Grünenthal has demonstrated with clear and convincing evidence that Hagens Berman multiplied proceedings unreasonably and in a vexatious manner by litigating the claims of [the three challenged plaintiffs] well after defendants put the firm on notice that these claims were baseless, time-barred, or both," the 23-page ruling states. "I also agree with the special master's sanctions calculations."

The ruling painstakingly describes the baseless nature of the claims put forward by the three challenged plaintiffs - Lawrence Boiardi, Jack Merica and Roel Garza.

One has records revealing that his mother never took thalidomide or any medicine at all during her pregnancy. Another claimed to have linked his birth defects to thalidomide in 2012, but discovery showed that his mother made him aware of that fact in the 1960s. The third has no proof that his mother took thalidomide, and he admitted to having harbored suspicions that thalidomide caused his birth defects since his youth.

Diamond emphasized in his ruling that Hagens Berman's advocacy in this case was "dishonest," and that it "initiated these time-barred cases apparently intending to evade providing an honest answer to the dispositive question of when its clients knew or reasonably should have known that thalidomide could have caused their birth defects."

"Clear and convincing evidence shows that the firm's bad faith and intentional misconduct undoubtedly and unnecessarily increased the cost of litigating the claims of Messrs. Merica, Boiardi, and Garza," the ruling continues.

Diamond attached the December report of special discovery master William Hangley to his opinion.

"False hope is a cruelty," Hangley wrote. "Persuading a Merica, Boiardi or Garza to sue, without telling him that he has long since missed his main chance in litigation (if he ever had one), is not a kindness. And plunging forward in the face of overwhelming evidence that the claim cannot succeed, thereby subjecting the clients to the mortification of sitting for depositions and having the most painful threads of their personal lives picked at and teased out, is not what lawyers should do unless there is a genuine claim to pursue. Mr. Merica, Mr. Boiardi and Mr. Garza have had their hopes raised irresponsibly and then dashed, and there was never any good excuse for Hagens Berman's doing that."

The Canadian government announced on Friday that it would offer $125,000 to victims of thalidomide there.

Researchers are now trying to use the previously banned thalidomide to treat multiple myeloma, a blood cancer. In 1998, the Food and Drug Administration approved the drug to treat leprosy patients.

Celgene, a New Jersey company that has made $20.9 billion selling the drug under the name Thalidomid, and its analogue under the name Revlimid, was named last year in federal antitrust suit over that alleged monopoly power.

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