Plaintiff Bernice Gainer brought a product liability claim against Mylan Pharmaceuticals arising from alleged injuries from the generic version of the drug, Dilantin, and its active ingredient Phenytoin. Gainer was diagnosed with Stevens Johnson Syndrome (SJS) and Toxic Epidermal Necrolysis (TEN). These conditions required lengthy and painful treatment, including a skin graft, and allegedly left Plaintiff with permanent hair loss, dry skin, and scarring. Plaintiff alleges that Phenytoin caused her SJS and TEN.
Her lawyers have had some problems with deadlines and briefing schedules in the United States District Court for the District of Minnesota.
Plaintiff’s counsel initially appears to have missed the fact that they need to respond to a motion to dismiss. Fortunately for plaintiff, the result was merely a dismissal without prejudice (that is, with permission to refile). Plaintiff then refiled, taking note of U.S. District Court Judge Joan Ericksen’s critique of the initial complaint but, in the face of Mylan’s renewed motion to dismiss, then missed the briefing deadline for her response to the second dispositive motion.
Judge Ericksen denied Mylan’s second motion to dismiss but also fined plaintiff $1,380 for “fees incurred by Mylan to address the tardiness of Plaintiff’s memorandum.” Having survived the motion to dismiss, it could be that plaintiff will pay off this not nominal “bench slap” with a smile or at least a sigh of relief. It could have been worse.