ParfumGigi@aol.com

Matthew Hirsch

The Recorder

10-30-2007

A chemical used to help treat diseased kidneys has plaintiffs lawyers salivating at the thought of a new arena of billion-dollar mass torts, but one San Francisco firm wants to take it one suit at a time.

"I think the work that we do [in the first case] will set the tone for other cases; and of course we're hoping to get other cases as well," said Jeffrey Kaiser, a partner at Levin Simes Kaiser & Gornick.

On Friday, fellow partner Lawrence Gornick filed a complaint in San Francisco Superior Court against Bayer Corp., General Electric Co., McKesson Corp. and other companies involved in the manufacturing and distribution of gadolinium, a heavy metal used in treating kidney disease. Gornick says the element was injected into his client to help doctors capture medical images, and the exposure caused a painful and incurable disease known as nephrogenic system fibrosis, or NSF, which hardens the skin.

The complaint also names medical facilities, including California Pacific Medical Center, where Gornick's client, San Rafael, Calif., resident Peter Jay Gerber, was allegedly exposed.

Spurred by a recent warning from the Food and Drug Administration, some East Coast plaintiffs firms, including Milberg Weiss, have identified gadolinium suits as a burgeoning area of litigation. At least a dozen firms have purchased ads on Google to attract clients who have been diagnosed with NSF.

But Levin Simes attorneys have a different strategy. While it's common to coordinate a mass of cases in federal multi-district litigation (MDL), the 15-lawyer firm wants to take its gadolinium suits to trial one at a time.

In addition to the suit filed Friday, the firm has seven other clients who have been diagnosed with NSF, Kaiser said.

Several of Levin Simes' product liability suits against drug companies have been swept into federal MDLs, including litigation over the anti-psychotic drug Seroquel, which was consolidated in a Florida federal court, and an anti-psychotic called Zyprexa, which was consolidated in a New York federal court.

Those cases have exposed drug makers AstraZeneca and Eli Lilly to massive liabilities, but their complexity has helped bog them down in the courts.

Gornick said his elderly client doesn't have that kind of time. "I don't know if we're going to get a call [saying] he has taken a turn for the worse next week or a year and a half from now," the attorney said.

Gerber "is hardening to death," Gornick said. "Just in the last month or so, it appears the disease has progressed to his abdomen."

Gornick said he will be racing to get gadolinium cases before juries as quickly as possible. In the California state courts, he can invoke a rule that puts cases involving a severely ill plaintiff on a fast track.

Even against a single plaintiff, Gornick said, gadolinium suits could be very expensive litigation for defendants. He said Gerber's treatment for NSF -- doctors "take all the blood out, scrub it, then put it back in" -- costs $30,000 per biweekly visit.

"If they're able to keep him alive -- his life expectancy is about 10 years -- he's going to have about $10 million in medical expenses," Kaiser said.

One plaintiffs attorney who does pharmaceutical litigation knows the fast-track strategy doesn't always work, despite a plaintiffs attorney's best effort to stay out of consolidated federal litigation.

"More and more, what you are seeing is when you have companion federal cases and state cases, there is an attempt to coordinate both the federal and state litigation," said Cotchett, Pitre & McCarthy's Frank Pitre.

In litigation over the pain medication called Bextra, Pitre said, U.S. District Judge Charles Breyer has worked cooperatively with state court judges in New York and New Jersey to keep all the litigation on the same track.

"Where you have a good group of people on the plaintiff side and defense side who are working together to make sure discovery is proceeding efficiently, then it works well," Pitre said.