Lawyers Differ on Impact of Michigan Meningitis Verdict

By Walter F. Roche Jr.

Lawyers for Tennessee victims of the 2012 fungal meningitis outbreak say a verdict in a Michigan case clearing physicians there of malpractice claims, differs in several ways from the cases filed for their clients, but clinic attorneys say the jury got it right.
A Michigan jury Thursday cleared three physicians of malpractice charges brought in behalf of some 170 victims of the fatal 2012 outbreak blamed on fungus tainted steroids injected into the spines and joints of unsuspecting patients.
Mark Chalos, a Nashville lawyer representing Tennessee victims, said that the facts in the Michigan case do not parallel the claims in his and other Tennessee cases.
But Chris Tardio, one of those representing Tennessee clinics, said there are parallels.
"The plaintiffs' lawyer in Michigan tried the same allegations made against the health care providers in Tennessee," said Tardio. "The jury reached the correct decision that physicians and nurses are not responsible for misconduct by a company that promised its products were sterile."
Stressing that he had not yet had time to fully analyze the verdict, Chalos said, "It is clear the conduct of the Michigan clinics and the claims brought under Michigan law are substantively different from the circumstances in Tennessee."
In most of the Tennessee cases, the suits have been filed against the Saint Thomas Outpatient Neurosurgical Center, the Nashville facility where they were given injections of methylprednisolone acetate.
"Most importantly," Chalos continued, "St. Thomas's conduct, including participating  in the fraud by submitting fake names to obtain drugs and violating patient safety rules, was far riskier and more outrageous than what the Michigan clinic was alleged to have done."
Gerard Stranch, another attorney representing Tennessee victims, expressed a similar opinion.
"Given the significant differences in law and claims asserted, along with the more culpable conduct of the Tennessee defendants, this verdict has no precedential value to the Tennessee plaintiffs or defendants," Stranch said.
The Tennessee plaintiffs' lawyers have argued that because of Tennessee's unique product liability law, claims can be made against St. Thomas and two other Tennessee clinics. The law, they contend, allows plaintiffs to file claims against the seller of a defective product in cases where the original source of the product is bankrupt.

The steroids were produced by the New England Compounding Center, a Massachusetts firm which filed for bankruptcy in late 2012.
Lawyers for the Tennessee clinics, however have disputed the claim that their clients can be considered sellers.
The 2012 outbreak sickened 778 patients across the country killing 76 of them.
The Tennessee cases are among hundreds that have been consolidated before a federal judge in Boston. U.S. District Judge Rya Zobel has set a tentative trial date of next spring for the first of those Tennessee cases.