Nashville Meningitis Cases Argued

By Walter F. Roche Jr.

Two Nashville attorneys sparred briefly over Tennessee's product liability law Wednesday in a Boston hearing on hundreds of cases stemming from the 2012 fatal fungal meningitis outbreak.
George Nolan, who represents several Tennessee victims, spoke in defense of a motion he filed to have the Judge Rya Zobel declare that the Saint Thomas Outpatient Neurosurgical Center meets the definition of a seller under Tennessee's unique product liability law.
Noting that the motion has not yet been fully briefed, Nolan said he had filed the motion prior to a related recent ruling by Zobel.
Attorneys for Tennessee victims contend that under Tennessee law health care firms like Saint Thomas can be held liable when the original seller of a defective product has been declared bankrupt. The Saint Thomas clinic purchased the steroid blamed for the outbreak from the New England Compounding Center, which filed for bankruptcy nearly three years ago.
Nolan's position was immediately challenged by Chris Tardio, the clinic's attorney.
Tardio, noted that the same issue could land before the Tennessee Supreme Court due to other legal proceedings.
In any case Tardio said he would need an extension beyond the normal 30 days to respond to Nolan's submission. He cited "mounds of discovery" that are still needed.
Clinic attorneys have vigorously disputed the claim that their clients can be held liable under the products liability law.
Zobel also heard arguments on cases in Maryland, New Hampshire and Virginia, including the case of a Virginia man who died on July 14, 2014, some two years after the outbreak became public.
Kristen Johnson, also a plaintiffs' attorney, told Zobel that plans were finally proceeding to vacate the former office of NECC in Framingham, Mass. She said that furniture and equipment would be auctioned off.
Zobel said she would consider proposals to further fill out the schedule for so-called bellweather cases which are set to get underway next Spring.
Zobel also was informed that a settlement had been reached with one of the insurance companies involved in the case. The details were not disclosed.
Meanwhile in the related bankruptcy case arguments are continuing over the $3.75 million fee request for Paul D. Moore, who served as trustee for NECC.
Lawyers for Moore filed a brief contending that a recent ruling by Zobel regarding the bellweather cases bolstered the contention that Moore's fee request was justified.
Her decision "demonstrates that the personal injury plaintiffs continue to benefit from the Chapter 11 case. The plaintiffs will benefit from speedy trials which will take place next spring," the brief states.
In a responding brief by plaintiff's attorney Thomas Sobel argued that Moore "played no role whatsoever" in  establishing the bellweather case process.
"Much of the work most critical to resolving these cases has always depended on the litigation efforts of parties other than Mr. Moore," Sobel wrote, adding that "in light of the limited amount available to tort victims, Paul Moore should not be requesting" an enhanced fee.
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