Monday, July 27, 2015

Judge Sets Tentative Trial Date in Meningitis Suits

By Walter F. Roche Jr.

A federal judge has set a tentative trial date of March 28, 2016 for what could be the first of a series of key trials in suits brought by victims of the 2012 fungal meningitis outbreak against health care providers, including a Nashville, Tenn. clinic.
In an order issued earlier this month U.S. District Judge Rya W. Zobel also set a strict schedule for the completion of pretrial matters, such as the discovery of key evidence and deposition of witnesses.
But before any trial Zobel must still rule on two key issues including whether trials will be held in Boston or in Nashville and other locations where victims were injected with fungus laden spinal steroids.
In a series of briefs filed recently in the case, lawyers for the plaintiffs have argued that the trials should be held in Boston, in part because they contend that will speed the process toward a conclusion bringing some measure of relief for victims who have been kept waiting for two years.
Attorneys for the Saint Thomas Hospital and related Nashville parties, however, contend the trials should be held in Tennessee.
The 2012 outbreak caused by tainted vials of methylprednisolone acetate shipped from a defunct Massachusetts drug compounder sickened 778 patients in some 20 states. Seventy-six of them died.
The civil trials being overseen by Zobel are separate from a bankruptcy case for the drug compounder, the New England Compounding Center. The bankruptcy was resolved recently and the assets are set to be distributed to victims, hopefully by the end of the calendar year.
The cases being overseen by Zobel are separate actions against health care providers who purchased the drugs from NECC and administered them to victims.
Zobel also must rule on whether the trials will be held under the provisions of the Tennessee or Massachusetts liability laws.
"Properly understood, Tennessee is the only state implicated," lawyers for the health care providers stated in a recent brief.
Zobel's decision on that matter will be key because Tennessee law, court records show, allows defendants to reduce the amount they may have to pay based on the comparative fault of other parties.
Nashville attorney George Nolan argued in a recent brief that the process of establishing comparative negligence would simply erode the amount of funds available to victims.
Nolan also stated that the cases should be tried in Boston because the bankruptcy and the civil actions are still linked and the cases have been properly in that jurisdiction for more than two years.
"Defendants cannot legitimately suggest that this district court (Zobel's) magically lost subject matter jurisdiction simply because the NECC Chapter 11 plan has now been confirmed," he wrote.
Lawyers for the defendants, however, argued that, "There is no basis for applying foreign laws to any part of this dispute."
"It makes no sense," the brief adds, "to try Tennessee-centric cases to a Boston jury."
Zobel's tentative trial schedule also hinges on whether so called bellweather or representative cases are to be held in her court.
If she determines that bellweather cases cannot be held, Zobel, according to her order, will send the cases back to their home districts, including Tennessee, New Jersey and Maryland
The next step in the litigation will be a status conference in Boston which Zobel has scheduled for next week.
Court records show there are 89 pending cases against Nashville defendants, 24 against the Specialty Surgery Center in Crossville, Tenn., 40 against Premier, a New Jersey clinic and eight against Box Hill Surgery Center in Abingdon, Md.

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