Cases were originally filed in Gwinnett County before the defense removed the cases to the Northern District in April.

 

Plaintiffs’ counsel led by Darren Penn of the Penn Law Group hit Cardinal Health and its subsidiary Kendall Patient Recovery with a string of toxic tort cases in the U.S. Court of the Northern District of Georgia.

Penn’s group filed at least 15 renewal actions on behalf of Augusta residents who developed cancer and other ailments based on alleged exposure to ethylene oxide emitted from KPR’s medical device sterilization plant.

The owners of the plant were represented by Chuck Ross of Powell & Edwards and Derek Bauer of Baker & Hostetler, with Matthew Thurlow of Baker & Hostetler serving as pro hac vice lead counsel.

The litigation surge was surfaced by ALM’s Law.com Radar.

Cases were originally filed in Gwinnett County before the defense removed the cases to the Northern District on April 11. The cases were removed on the grounds that plaintiff Cardinal Health is an Ohio corporation and the owners of KPR, a Delaware limited liability company, are all residents of Ohio. According to Bauer, Gwinnet County “has no apparent connection to the subject matter of the lawsuits.”

Penn disagrees.

“The cases were filed in Gwinnett State Court because Gwinnett is the county of KPR’s registered agent, and the venue is completely proper in Gwinnett. KPR and the other properly joined Georgia resident/citizen defendants improperly removed the cases to the Northern District of Georgia,” Penn said, adding he would be filing motions to remand the cases back to Gwinnett County soon.

This isn’t the first time these plaintiffs have gone to court. In 2021, the same group brought complaints against the KPR as the sole defendant. Judge J. Randall Hall in the U.S. District Court for the Southern District of Georgia dismissed these cases—some with and without prejudice. Those that are being refiled were not dismissed on the merits, though Bauer described the effort as an attempt “to revive those same defective claims in a different court.”

According to the Southern District order to dismiss, the plaintiffs whose claims were dismissed without prejudice failed to show that their injuries were directly caused by KPR’s activities. Three plaintiffs had their claims dismissed with prejudice – of those, two plaintiffs filed after the statute of limitations was up and the third failed to prove “willful and wanton misconduct.”

Now, the renewal complaints target new parties including parent company Cardinal Health and individual KPR employees. These complaints also assert additional causes of action including RICO allegations against the now multiple defendants.

The defense’s motion to remand the cases to the federal court alleges that the plaintiffs added individual defendants to their claim to defeat the federal court’s diversity jurisdiction.

The defense further argued that there is no merit to the RICO allegations because “the RICO allegations repeat the basic elements of a RICO action and attempt to tie the elements of the RICO action to vague claims of wrongdoing and the generic, unrelated conduct of defendants … At most, Plaintiff pleads that defendants did their jobs, but such allegations are not nearly enough to plead the individual defendants misled anyone or engaged in a RICO conspiracy.”

The original case was Browman v. Kendall Patient Recovery, no. 1:21-cv-00112-JRH-BKE, in the U.S. Court for the Southern District of Georgia presided over by Judge Randall Hall. The Northern District of Georgia cases are being presided over by U.S. District Judge Sarah Geraghty.