By Walter F. Roche Jr.
A list of seven proposed initial or bellwether cases (see list below) in the long awaited trials stemming from the fatal 2012 fungal meningitis outbreak has been prepared by the opposing sides and is due to be submitted to a federal judge Friday.
The list includes cases proposed by the attorneys for the Nashville clinic where most of the Tennessee victims were treated and the lawyers representing victims.
U.S. District Judge Rya Zobel will finally decide which of those cases will be heard first in her Boston, Mass. courtroom. In a 30 minute hearing today she gave both sides until Tuesday to present written arguments for their respective cases
The list has been shortened considerably from when it was first proposed in October of 2015. Among the names dropped are Diane Reed, a Nashville, Tenn. woman who died leaving her husband, who is suffering from Lou Gehrig's disease, without a caretaker.
Also dropped was Thomas Rybinski, a Smyrna, Tenn autoworker, one of the first to die in the outbreak caused by injected steroids laden with fungus.
Still on the list is U.S. Army Major Adam Ziegler, who was on active duty when he was stricken with an infection from an injection of methylprednisolone acetate from the New England Compounding Center, the defunct company blamed for the outbreak which sickened 778 patients across the country.
During the hearing yesterday Edward Notargiacomo told Zobel that her assistance may be needed to allow the first of the approved payments to be sent out to victims from a $200 million trust fund established in a related bankruptcy case.
Notargiacomo said that while most of the claims are being held up by liens filed by the federal government and health insurance carriers, some victims don't face that obstacle.
"We would like to be able to send checks out," he said, adding that privacy and related issues could present a roadblock.
Zobel indicated she would consider a request to clear any obstacles.
Notargiacomo told Zobel that negotiations were ongoing with officials of the U.S. Centers for Medicare and Medicaid services and major insurance carriers in an attempt to reach a global settlement for all victims.
Asked about those negotiations, CMS officials issued a statement this week in which they contend they are bound by federal law to recoup payments.
"If Medicare has paid for medical care associated with the settlement, it is required under the (Social Security Act) to recover the payments it made from the settlement. CMS is unable to provide specific on the amount of money it will seek to recover from any particular Medicare beneficiaries settlement," CMS officials said in the statement.
Four member of Congress, meanwhile have called on U.S. Health and Human Services Secretary Sylvia Burwell to simply waive any Medicare claims on victims of the outbreak. So far there has been no response.
Proposed Tennessee Bellwether Cases
Adam Ziegler-localized infection
Basil McElwee-fungal meningitis
Jane Wray-fungal meningitis
Denis Brock-fungal meningitis and local infection
Mae Parman-local infection