Judge Issues Mixed Rulings in Meningitis Cases

By Walter F. Roche Jr.

A federal judge Thursday ruled that health providers who injected patients with fungus tainted steroids will be able to use state laws in New Jersey and Tennessee to potentially limit their liability for the injuries, some of them fatal, those patients suffered.
In a nine-page written decision U.S. District Judge Rya Zobel ruled that Tennessee law will apply to hundreds of Tennessee victims and New Jersey law to victims in that state.
The cases stem from the 2012 fungal meningitis outbreak caused by a Massachusetts drug compounding firm which shipped thousands of vials of fungus tainted methylprednisolone acetate to health providers across the country. The outbreak sickened 778 patients, killing 76 of them.
Lawyers for the victims had argued that Massachusetts' liability statutes should apply, in part because the New England Compounding Center and its owners were located there.
But as Zobel's decision pointed out, under Massachsuetts law, the health care providers could be held liable for all of the damages suffered by each patient.
"Massachusetts allows joint and several liability," she wrote, allowing plaintiffs "to collect full damages" from a partially responsible defendant."
"Under Tennessee law," Zobel wrote, the defendants' liability is limited "to the percentage of damage caused by it."
Zobel noted the now defunct drug compounding firm and its owners were not parties in the cases now before her.
"The law of the state where the injuries occurred will apply absent compelling countervailing concerns," the ruling states.
Zobel issued a second ruling favorable to plaintiffs by denying a motion by health care providers to file a direct appeal to an appeals court on her decision to try the current cases in Boston, rather than Tennessee.
In another development Thursday attorneys for patients who were injected with NECC steroids at a Crossville, Tenn. clinic charged that a key document regarding what drugs the clinic was authorized to use, apparently went missing.
"This is a big deal," Gerard Stranch, a Nashville attorney, told U.S. Magistrate Jennifer C. Boal.
He was arguing in favor of a motion to force the Specialty Surgery Center to produce additional records relating to the clinic's drug formulary.
Stranch said further testimony and evidence was needed to determine if even more documents had "disappeared."
Chris Tardio, representing the clinic, told Boal that the testimony on the document was "much more equivocal" and there was no solid evidence it even existed.
"We feel it is unduly burdensome," Tardio said of the demand for further record searching.
Boal took the matter under advisement.
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