Thursday, October 8, 2015
Key Tennessee Cases in Meningitis Outbreak to be Held in Boston
By Walter F. Roche Jr.
A federal judge in Boston has ruled that key Tennessee cases stemming from a deadly 2012 fungal meningitis outbreak will be held in Boston, with a Spring 2016 start up likely.
U.S. District Judge Rya Zobel issued the decision in a detailed 26-page filing Thursday.
Defendants in the cases, three Tennessee clinics, had argued against the cases being held in Boston, while plaintiffs, victims of the outbreak, had urged her to retain jurisdiction.
Under Zobel's ruling four so-called bellwether cases, which have yet to be finalized, will be heard in her Boston courtroom.
Attorneys for Tennessee victims of the outbreak said the decision means that the cases will be heard sooner than if they were transferred back to Tennessee.
"The families are pleased that the cases are moving towards trial," said Nashville attorney Mark Chalos, who represents several victims.
"It has been a long, difficult road. Defendants have made numerous attempts to derail the cases and to avoid accountability. Getting the location and date for trials is an important step."
The decision marks the latest development in the hundreds of suits filed in the wake of the 2012 fungal meningitis outbreak which have been merged before Zobel. The outbreak, caused by fungus laden steroids shipped from the now defunct New England Compounding Center, sickened 778 patients across the country, killing 76 of them.
In Tennessee 153 patients were sickened, 16 of whom died.
"The time has come to settle the question," Zobel wrote in her decision referring to the debate over how and where the cases should proceed.
Concluding that the cases filed by Tennessee victims were the "most advanced," Zobel moved them to the head of the line.
Attorneys for the clinics, including the Saint Thomas Outpatient Neurosurgical Center in Nashville, and the lawyers representing Tennessee victims are in the process of trying to agree on exactly which cases will come first.
In her decision Zobel rejected arguments for the clinics that because the bankruptcy plan for NECC has been confirmed, she no longer has jurisdiction over the related civil cases brought in behalf of victims.
Zobel, however, said that the civil cases are still related to the bankruptcy and how they are handled could have an impact on the bankruptcy plan and the amounts available to victims.
That is so, she concluded, because the defendants in Tennessee and New Jersey are seeking to have any claims against them be reduced under comparative fault statutes.
The costs of determining the comparative fault claims "will directly affect the administration of the bankruptcy and the supply of funds available to NECC's future judgment creditors," Zobel wrote.
"Abstention in these cases," she added, "is neither required or appropriate."
"That a single event (confirmation of the plan) in the bankruptcy could lead to this result - the near evisceration of the multi-district litigation and the loss of many of the plaintiffs' claims - is absurd," Zobel added.
She also noted that sending all the pending cases back to their home districts would lead to still more expenses and delays.
"This court is intimately familiar with the now 2,200 plus filings in the multi-district litigation," she wrote, adding that sending the cases to another district court at this point "would be asking it to undertake a salmon run to nowhere."
Zobel stated, albeit in a footnote, that she intends to stick strictly to a schedule already set for the collection of evidence and other pretrial matters.
She wrote that she would consider requests from victims from other states to follow the procedure now in place for Tennessee claimants.