Little Agreement on First Meningitis Trials

By Walter F. Roche Jr.

With a firm trial schedule now in place, Tennessee plaintiffs and defendants in the suits stemming from the 2012 fungal meningitis outbreak remain far apart on which cases should be tried first.
Latest filings in U.S. District Court in Boston, show only one case is on both proposed lists submitted by attorneys for victims and the Saint Thomas Outpatient Neurosurgical Center.
U.S. District Court Judge Rya Zobel recently issued a ruling setting the timetable for the first Tennessee cases to be heard in her courtroom beginning next Spring.
The suits stem from the outbreak triggered by fungus tainted methylprednisolone acetate injected into the spines and joints of unsuspecting patients. The outbreak killed 76 patients across the country including 16 from Tennessee.
Zobel has asked the opposing lawyers to try to reach agreement on so-called bellwether cases (See Below) that will, hopefully, serve as templates for the hundreds of other cases stemming from the outbreak.
The opposing attorneys filed the cases under similar categories established in a related bankruptcy case. The categories are based on the severity of the victims' illness.
Victim Fredia Berry's name is the only one to appear on both lists, records show. She was injected with the the steroid at the Saint Thomas outpatient center on Aug. 24 and Sept. 7 of 2012. According the filings she subsequently underwent three lumbar punctures to determine whether she had contracted fungal meningitis.
The list submitted by Saint Thomas lawyers include Reba Temple, who was the ninth known victim of the outbreak. The former Hickman County Health Department official died three years ago.
Others on the defense list include Denis Brock, who suffered fungal meningitis and an additional infection, and Reba Skelton, who also suffered fungal meningitis.
The plaintiffs' list includes Diane Reed of Nashville, whose death left her severely handicapped husband without a caretaker and Thomas Rybinski of Smyrna, an autoworker, who died Sept. 29, 2012.
Also on the plaintiff list is Major Adam Ziegler who was injected on Sept. 11, 2012 and suffered a spinal or paraspinal infection.

 DEFENSE LIST

Reba Temple (Death)
Denis Brock (Meningitis plus infection)
Phillip and Maria Tyree (Meningitis plus infection)
Mae Parman (Meningitis only)
Reba Skelton (Meningitis only)
Fredia Berry (Local infection only)
Ashley Kinsey (No disease)
Donna Branham (No disease)

PLAINTIFF LIST

Diane Reed (Death)
Thomas Rybinski (Death)
Adam Ziegler (Local infection)
Lewis Sharer (Meningitis plus infection)
Jane Wray (Meningitis)
Anna Sullivan (Meningitis plus infection)
Fredia Berry (Lumbar punctures)
Basil McElwee (Meningitis)

A “bellwether” is a sheep that leads a flock, around whose neck a bell is hung. In a bellwether trial procedure, a random sample of cases large enough to yield reliable results is tried to a jury. A judge, jury, or participating lawyers use the resulting verdicts as a basis for resolving the remaining cases.
Bellwether Trials, Alexander D. Lahav, George Washington Law Review, April 2008, Vol. 76, No. 3 at 576, 577.