By Walter F. Roche Jr.
Court documents filed Thursday state that the claims of a Nevada woman, whose son died after treatment with a suspect drug, will not be barred from filing a claim against the bankrupt Massachusetts drug compounding firm that produced the drug.
The filings came in response to a previous claim, since withdrawn, that procedures established in the bankruptcy settlement would bar the claim of Katrina Eldreth, whose son died after treatment with a suspect drug at a Las Vegas hospital.
The drug was produced by the New England Compounding Center, the firm blamed for a 2012 nationwide outbreak of fungal meningitis that killed 76 patients across the country.
Though most of the known victims were treated with a spinal steroid, methylprednisolone acetate (MPA), Eldreth's son was treated with a drug used to stop the heart from beating during heart surgery.
In a filing last week, Eldreth's lawyer said that the rules would bar her claim because the lot of drugs the 3-year-old was treated with was not MPA and had not been tested by federal officials.
However, Frederic Ellis, a Massachusetts attorney who represents several victims filed a declaration Thursday stating that the rules would not bar the Eldreth claims.
"The compensation program provides claimants who were exposed to other products the same opportunity to recover as claimants who received an injection of methylprednisolone acetate from one of the three contaminated MPA lots," Ellis wrote.
He added that claimants could provide circumstantial evidence to back their claim for any drug product produced by NECC.
"Circumstantial evidence is admissible to prove both exposure and causation," the brief states.
Ellis noted that additional proof would be needed to assure that any infection was not due to another cause.
Ellis stated that, in fact, some 25 to 50 claims had been filed over the use of other NECC drugs.
A second declaration filed Thursday by lead plaintiff counsel Thomas Sobol contains the same assertions.