Class Action Dilemmas: Pursuing Public Goals for Private Gain

By Deborah R. Hensler; Nicholas M. Pace et al. | Go to book overview

NOTES
1
As part of our research on this litigation, we interviewed the primary defense attorneys, lead counsel for the class, and the trial judge. We also reviewed the pleadings and papers filed in the case, law review articles, the legal press, the general press, internet web site postings, and Andrews, Mealey's and Bureau of National Affairs ( BNA) reporters.
2
This litigation was conducted in the U.S. District Court for the Northern District of Illinois. It was known as Wadleigh v. Rhone-Poulenc Rorer Inc., No. 93 C 5969 (N.D. Ill. filed Sept. 30, 1993), until January 1996, when the U.S. Supreme Court declined to review a Seventh Circuit writ to decertify the class. In the Matter of Rhone-Poulenc Rorer Inc., 51 F.3d 1293 (7th Cir. 1995), cert. denied, Grady v. Rhone-Poulenc Rorer Inc., 516 U.S. 867 ( 1995). The litigation continued as part of a larger multidistrict litigation known as In re Factor VIII or IX Concentrate Blood Products Litigation, MDL- 986, No. 93 C 7452, until August 1996. At that time, a tentative class settlement was reached, known as In re Factor VIII or IX Concentrate Blood Products Litigation, No. 96 C 5024 (the Walker Settlement).
3
This fact is not at issue in the litigation, as the defendants have conceded that their products were capable of transmitting HIV. John Bacich, president of Baxter's Hyland Division, has stated, "We deeply regret that early versions of the therapies that were designed to save lives unknowingly carried the AIDS virus. The virus had entered the blood supply before it was identified and this tragedy could not have been predicted or prevented." Pharmaceutical Firms Offer $640 Million to Settle Hemophilia HIV Lawsuits, Andrews AIDS Litigation Reporter, Apr. 26, 1996, at 15408.
4
Cryoprecipitate was developed by Dr. Judith Poole at Stanford University.
5
Institute of Medicine, U.S. Department of Health and Human Services, "HIV & the Blood Supply: An Analysis of Crisis Decision Making" ( Washington, D.C.: National Academy Press, July 13, 1995).
6
Irene Sege, "He Will Not Go Gentle", Boston Globe, June 27, 1995, at 58.
7
Institute of Medicine, supra note 5, at 2.
8
Michael McLeod, "Bad Blood: Every Day, A Hemophiliac Dies of AIDS. It Didn't Have to Happen", Orlando Sentinel, Dec. 19, 1993, at 10. According to a defense attorney we interviewed, fewer than 10 percent of the clinics were located in these areas.
9
Id.; Institute of Medicine, supra note 5, at 3.
10
Noreen Marcus, "Victim's Difficult Choice; HIV-Positive Hemophiliacs Must Decide: Accept Cash Payments or Pursue Lawsuits", Miami Daily Business Review, Aug. 26, 1996, at A1.
11
The National Hemophiliac Foundation ( NHF) was also named as a fifth defendant.

Alpha is in the business of developing and producing plasma-based pharmaceutical products, and was responsible for the manufacture and sale of 15 percent of the blood factor concentrate market from 1978 through 1985. Alpha is a California corporation based in Los Angeles and a subsidiary of the Green Cross Corporation (Green Cross), a Japanese entity doing business in the United States as a Delaware corporation also based in Los Angeles. Green Cross was not named in the original complaint but is a party to the settlement.

Armour is a Delaware corporation based in Pennsylvania that manufactured and sold 20 percent of the blood factor concentrate marketed in the relevant time period. Armour is a subsidiary of Rhone Poulenc Rorer, Inc.(Rhone-Poulenc), a pharmaceutical company based and incorporated in Pennsylvania. Rhone-Poulenc was named as a defendant in the original complaint and is a party to the settlement. Aside from factor concentrate, Rhone-Poulenc and its subsidiaries manufacture a large variety of pharmaceutical products, including respiratory and allergy medications, thrombosis and cardiology medicines, hormone replacement and cancer therapies, and over-the-counter preparations such as Maalox.

Miles is an Indiana corporation based in Pennsylvania. Through a division known as Cutter Laboratories, Miles manufactured and sold 45 percent of the factor concentrate marketed in the relevant time period. In 1994, Miles merged with Bayer A.G. (Bayer), a German multinational pharmaceutical company doing business in the United States as an Indiana corporation based in Pennsylvania. Bayer was not named in the original complaint but is a party to the settlement. Aside from factor concentrate and the well-known Bayer aspirin, Bayer and its subsidiaries produce a variety of chemical and medical products, including polyurethane, crop protection products, animal health products, and coating materials.

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