Nashville Clinic Seeks Hold on Product Liability Claims

By Walter F. Roche Jr.

The Nashville, Tenn. clinic where patients were injected with fungus tainted steroids is asking a federal judge to put on hold claims that the clinic is liable for millions of dollars in damages under state product liability statutes.
The attorneys for Saint Thomas Outpatient Neurosurgical Center filed a motion in U.S. District Court in Boston, Mass. seeking a hold on the claims until the Tennessee Supreme Court acts on a related but separate case that hinges on the applicability of Tennessee's product liability law.
In the motion Saint Thomas clinic lawyers said waiting for the Tennessee court to issue a decision "is the most prudent course at this point in the litigation."
Lawyers for victims of the outbreak labeled the filing another stall tactic.
"This is yet another attempt in a long series of attempts by Saint Thomas to delay their patients' day in court. Saint Thomas knows it did wrong and caused harm. Saint Thomas is trying desperately to avoid being held  accountable," said Nashville attorney Mark Chalos, who represents victims.
The request to the state court to answer the product liability issue stems from a case filed in Nashville by the insurance company that covered a Crossville clinic, the Specialty Surgery Center, where other patients were injected with fungus laden steroids from the same defunct drug compounder.
"This precise question of Tennessee law remains unresolved with no specific authoritative Tennessee decision for this court to follow," clinic lawyers stated in court filings.
Nonetheless the clinic lawyers added that if the judge in the Boston cases were to continue the claims without a delay, the conclusion should be that the "claims fail as a matter of law in this factual context."
Lawyers for plaintiffs have argued in state and federal court that the law does apply because of a provision that the sellers of a defective product can be held liable if the manufacturer is bankrupt. The New England Compounding Center, the manufacturer of the steroids, filed for bankruptcy in late 2012. 
The 19-page clinic filing is but the latest development in hundreds of civil suits stemming from the 2012 fungal meningitis outbreak cause by steroids shipped from the New England Compounding Center, the now shuttered Framingham, Mass. drug firm. The outbreak sickened 778 patients, killing 76 of them.
The cases have been consolidated before U.S. District Judge Rya Zobel, who now must decide whether to continue to with product liability claims or put them on hold.
Leaving the questions on Tennessee law to Tennessee courts, the filing concludes "provides the most direct and feasible means of clarifying unsettled areas of state law."