Boal also established numerous ground rules for Green's inspection and testing.These include a four-day time limit; on-site supervision by the U.S. attorney's office and/or federal law enforcement; no removal of drugs; no access to locked drug vaults; no testing of drugs; and no testing of drugs returned by customers and/or picked up and processed by federal agencies.
Boal also required Green to share the results of the testing with other parties, any federal or state agencies that request them and any future plaintiffs.
The ground rules also call for Green to try to reach agreement with the U.S. government on the scope of the destructive testing.
"We're really happy that the judge has allowed us to do that. We have no alternative way of getting this evidence," said Kim Dougherty, a Boston trial attorney at Janet Jenner & Suggs and one of Green's lawyers on the case. Dougherty said her firm also represents other plaintiffs that have not yet filed lawsuits.
The team will look for water damage and evidence that the HVAC system is bringing mold and spores into the facility, she said.
The inspection "will produce some evidence that is going to be usable in the case even though everyone acknowledges that the conditions of the premises aren't exactly as the way were when the contaminated lots occurred," said Rick Ellis, of Boston's Ellis & Rapacki. Ellis represents George Cary and Robert and Margaret Schroder,
"We are working right now to coordinate with a number of plaintiffs counsel to see if they're interested in participating in the inspection," Ellis said.
On Tuesday, Judge F. Dennis Saylor IV remanded the cases filed by Cary and the Schroders to Massachusetts state court. In both orders, Saylor ruled that the case at hand "does not refer to federal law or any potentially applicable federal regulation or standard."
Ellis said his clients are pleased with Saylor's remand orders. He said that change would avoid delays, while the MDL panel rules on the consolidation motions.
"The plaintiffs here chose their forum, a Massachusetts state court, and this ruling will be cited by many others who also would rather have a state, rather than a federal, forum," Ellis said.
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