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BOSTON-Medical device maker Boston Scientific Corp. revealed its legal strategy for battling hundreds of products liability cases in dismissal motions filed this summer that assert most plaintiffs were not physically or financially injured by the recalled Guidant pacemakers. Boston Scientific’s dismissal motions said plaintiffs who can’t prove an actual injury or monetary loss aren’t protected under consumer protection laws in the majority of states. A hearing on one dismissal motion is scheduled for Nov. 9, following depositions and briefings slated over the next couple of months. A settlement conference is scheduled for Sept. 11. The first trials of bellwether, or representative, cases are slated for March 2007. Natick, Mass.-based Boston Scientific, which bought Guidant Corp. for about $27.5 billion in April, disclosed last week that it has earmarked $381 million for legal costs, mostly for the heart device litigation. Although most of the 72 products liability class actions and 477 individual lawsuits are pending or destined for federal court, more than 60 cases remain in state courts, including nearly 30 in Minnesota and a contingent of cases in Texas. The master case also includes third-party payors, such as organizations with self-insured health plans, that seek compensation for the cost of replacing the devices and corrective surgery. But the defense mounted by Indianapolis-based Guidant emphasizes that the payors have not claimed that they’ve paid anything for removing the heart devices. Litigator Timothy Pratt of Shook, Hardy & Bacon in Kansas City, Mo., known for its tobacco litigation defense, is representing Boston Scientific. He said he anticipates the dismissal motions will succeed either “in their entirety or [will] substantially limit the claims in the cases,” Pratt said. The plaintiffs’ side claims Guidant should be liable for wrongful death in some cases, as well as fraud, unjust enrichment, negligence, intentional and negligent infliction of emotional distress and subjection of the plaintiffs to prolonged medical monitoring. The contentious multidistrict litigation, which has absorbed more than 430 individual and class action products liability cases and third-party lawsuits to date, has been marked by document spats about the breadth of discovery, which third parties can be subpoenaed and accusations by plaintiffs’ attorneys that Guidant is dodging legitimate discovery requests. In re Guidant Corp. Implantable Defibrillators Products Liability Litigation, No. MDL-1708 (D. Minn.). “The strategy of the defendants has been to slow down the process to make sure no cases get to trial, said plaintiffs’ lawyer Charles Zimmerman of Zimmerman Reed in Minneapolis. In a statement, Pratt said that it should have been a fairly easy task for plaintiffs’ lawyers to supply the “fairly straightforward information” ordered by the judge. Pratt, who said that the Guidant side has produced 8.7 million pages of documents for the plaintiffs, characterized the discovery process as “fairly smooth,” with disputes handled mostly without court involvement.

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