Judge Approves Order on Names of Tennessee Meningitis Victims

By Walter F. Roche Jr.

A federal judge has approved an order that will permit lawyers for victims of the 2012 fungal meningitis outbreak to get the official list of victims from the Tennessee Health Department.
U.S. District Judge Rya W. Zobel signed the order late Thursday following a hearing in which plaintiffs' attorneys promised to "clean up"  the language of the protective order that would allow the state to provide such a list.
 Zobel had questioned the wording of the original request, noting that the Tennessee Health Department was  not currently a party to the case before her.
The exchange with Nashville attorney Ben Gestel came during a 50 minute status conference in the hundreds of cases merged before Zobel.
Gastel said following the hearing that he already had filed an amended version of the request. Her approval quickly followed.
All the cases before Zobel stem from the 2012 outbreak of fungal meningitis that sickened 778 patients across the country killing 76 of them.
According to the official count of the U.S. Centers for Disease Control and Prevention, 153 Tennessee patients were sickened by fungus laden steroids and 16 of them died. The steroids were shipped to health facilities across the country by the now defunct New England Compounding Center in Framingham, Mass.
Mark Chalos, also a Nashville attorney, gave Zobel a rundown of other cases from the outbreak that are now in state courts across the country.
In Michigan, he reported, 120 plaintiffs' cases were proceeding as a class action against one clinic and those cases could go to trial late next month. There are 311 claims against Michigan Pain Specialists and 120 cases in Indiana courts.
Chalos said there were a smaller number of cases in Maryland where cases must first be assessed by a panel before actual filing in court.
Chalos also reported that plaintiffs and defendants in the Tennessee cases have come up with a list of 15 possible cases that would serve as so-called bellweather trials. Eight cases were proposed by plaintiffs and eight by defendants. One case was on both lists.
Chris Tardio, one of the attorneys for the Tennessee clinics, told Zobel that depositions have been scheduled for some former employees of NECC, but officials of the U.S. Attorneys office had requested a hold on those sessions.
Zobel asked Tardio to file a response to the U.S. Attorney's motion and promised she would act on it before the depositions are scheduled.
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Sterile Drug Recall

Medistat RX Sterile Drug Products: Recall - Possible Contamination

AUDIENCE: Health Professional, Patient
ISSUE: FDA alerted health care professionals and patients of a voluntary recall of all non-expired drug products produced for sterile use and distributed nationwide by Medistat RX, LLC, in Foley, Alabama, due to possible contamination. During an ongoing inspection, FDA investigators and Alabama state inspectors observed significant deficiencies that raise concerns about Medistat’s ability to assure the sterility of drug products that it produced. The recalled products were distributed between November 1, 2014, and September 3, 2015. 
Administration of a non-sterile drug product intended to be sterile may result in serious and potentially life-threatening infections or death.
BACKGROUND: FDA has received reports of several adverse events that are potentially associated with drug products made by Medistat. Medistat voluntarily ceased sterile compounding operations on September 1, 2015. FDA previously inspected Medistat in September 2014 and issued a Form FDA 483.
RECOMMENDATION: Health care professionals should immediately check their medical supplies, quarantine any drug products marketed as sterile from Medistat, and not administer them to patients. Patients who have received any drug products produced by Medistat and have concerns should contact their health care professional.
Healthcare professionals and patients are encouraged to report adverse events or side effects related to the use of these products to the FDA's MedWatch Safety Information and Adverse Event Reporting Program:

• Complete and submit the report Online: www.fda.gov/MedWatch/report
• Download form or call 1-800-332-1088 to request a reporting form, then complete and return to the address on the pre-addressed form, or submit by fax to 1-800-FDA-0178

Read the MedWatch safety alert, including a link to the Medistat RX alert, at:
http://www.fda.gov/Safety/MedWatch/SafetyInformation/SafetyAlertsforHumanMedicalProducts/UCM461850.htm

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You are encouraged to report all serious

Meningitis Attorney Slashes Fee Request by Nearly $1 million

By Walter F. Roche Jr.

One of the attorneys seeking reimbursement from the bankruptcy of a defunct drug compounding firm has slashed his fee request by nearly $1 million.
In a petition filed this week in U.S. Bankruptcy Court in Massachusetts, Florida attorney Melvin Wright and his Orlando law firm, Colling, Gilbert, Wright and Carter, reduced the claim for services and expenses from $1.35 million to $411,780.59.
Overall attorneys and other professionals involved in the bankruptcy of the New England Compounding Center have filed for claims of about $17 million.
A Sept. 30 hearing has been scheduled to consider those claims.
In the filing Wright's law firm said the reduction included a substantial cut in his typical hourly fee, removing all fees for the services of paralegals and waiving certain other costs.
Wright's fees were included in an overall $3 million fee request for attorneys representing unsecured creditors in the bankruptcy. With his reduction, the total for the unsecured creditors attorneys drops to $2.1 million.
The unsecured creditors include victims of the 2012 fungal meningitis outbreak caused by fungus tainted drugs shipped by NECC all over the country. Wright represents Kathleen Distler of Ocala, whose husband, Charles, died in the outbreak.
The outbreak sickened 778 patients, killing 78 of them.
Owners and former employees of NECC have been charged in a criminal indictment with multiple charges including second degree murder. They have all entered not guilty pleas and are scheduled to go on trial in April of next year.
Victims and some NECC creditors will share in an estimated $200-$215 million fund established during the bankruptcy.
Contact: wfrochejr999@gmail.com

Objections Filed on New Hampshire Meningitis Claims

By Walter F. Roche Jr.


A key official in the bankruptcy case of the New England Compounding Center has filed multiple objections to last minute claims filed in behalf of patients apparently treated at New Hampshire health facilities.
Paul Moore, the post confirmation officer in the NECC case, has charged that the filings are faulty and strain credibility.
Moore filed objections to requests for extensions for 18 patients to file claims despite the fact that the deadline passed some 18 months ago. All were filed by the same attorney.
According to Moore's filing the claims failed to include required information on the time and place the victims were alleged to have been injected with fungus tainted methylprednisolone acetate from NECC's Framingham, Mass. facilities.
"None of these motions is supported by a declaration or affidavit," Moore's motion states.
The objections are the latest development in the bankruptcy of the firm blamed for a 2012 fatal outbreak of fungal meningitis. The outbreak sickened 778 patients, killing 76 of them.
More than $200 million is expected to be available for victims of the outbreak, their survivors and a handful of other creditors.
Moore charged that some of the extension requests were "nonsensical" because claims on behalf of those victims already had been filed.
He also noted that the numbers of victims claimed to have suffered joint infections from the NECC drugs exceeded by nine times the total  number of victims in New Hampshire in that category as compiled by the U.S. Centers for Disease Control and Prevention. The CDC count listed a total of 14 New Hampshire victims.
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Sept. 30 Hearing Set for Meningitis Fee Requests

By Walter F. Roche Jr.

A Sept. 30 date has been set for a hearing on fees and expenses totaling some $17 million in the bankruptcy case of the New England Compounding Center, a defunct Massachusetts drug compounding firm.
Filings today in U.S. Bankruptcy Court set the hearing for 2 p.m. on Sept 30 before U.S. Bankruptcy Judge Henry Boroff at the federal court building in Springfield, Mass.
The pending fee requests include more than $10 million by the trustee who oversaw the bankruptcy proceedings and his law firm.
In the most recent request, the firm of Verdolino and Lowey, is seeking $128,177 in fees and $1,323.77 in expenses. The firm, which charged hourly rates averaging $276.36 but ranging up to $415, provided financial and accounting services.
NECC, which filed for bankruptcy in late 2013, has been blamed for a nationwide outbreak of fungal meningitis which sickened 778 patients, killing 76 of them.
Moore has been credited with amassing more than $200 million from the owners of NECC, related firms, insurance carriers and service providers for NECC. Most of that total will go to victims or their survivors, but legal and other fees of the bankruptcy will be paid first.
Moore has expressed hope that victims will begin collecting payments before the end of the calendar year. Some victims may later get additional payments from pending suits against other parties, including treatment  centers where they were injected with fungus tainted steroids from NECC.
A federal grand jury has indicted 14 owners and employees of NECC following a lengthy criminal probe of the outbreak. Criminal trials are set to begin in April 2016.
Contact: wfrochejr999@gmail.com

Lawyers Clash Over Site for Meningitis Suits

By Walter F. Roche Jr.

The attorney for  Saint Thomas Health told a federal judge Wednesday that she has no choice but to send dozens of suits stemming from the deadly fungal meningitis outbreak back to Nashville for trials.
Marcy Greer, the attorney representing Saint Thomas, told U.S. District Judge Rya W. Zobel that federal law mandates that the cases filed for the 2012 outbreak victims be tried in Tennessee.
Nashville attorney George Nolan, however,  said Zobel does have the authority to decide the appropriate venue and that should be U.S. District Court in Boston.
The opposing arguments on the proper place for trials filled most of a 75 minute Wednesday hearing in Zobel's Boston courtroom.
While acknowledging there was "some tension" between two different statutes, Nolan said the cases should remain in Boston because of the law and the fact that Zobel had already made key rulings in the litigation. Transfers back to Tennessee would further delay cases dating back to 2012, he said.
"It's now been three years since these people were injured," Nolan said.
He noted that the precise legal question of jurisdiction had yet to be ruled on in the federal district where Zobel's court is located.
Greer, joined by Nashville attorney Chris Tardio, however, said that Zobel had no choice because a related Boston bankruptcy case was recently resolved.
"This court has lost jurisdiction," Tardio stated.
Greer said that Zobel lost jurisdiction as soon as the liquidation plan for the New England Compounding Center was approved in bankruptcy court.
"We don't want to retry these cases," Greer said, warning that trying the cases in Boston could result in second trials being ordered in Nashville.
Earlier in the session,  Nashville attorney Ben Gestel charged that action in a separate ongoing case in Nashville could upend decisions already made by Zobel.
In that case an insurance company has asked U.S. District Judge Kevin Sharp to rule that, as a matter of law, victims of the outbreak do not have a right to sue a clinic under Tennessee's product liability statute.
Though the case is focused on suits against a Crossville clinic, a ruling in that case could impact cases against other Tennessee clinics where patients were injected with fungus tainted spinal steroids.
That would include the Saint Thomas Outpatient Neurosurgical Center in Nashville, where most of the Tennessee victims were injected.
The 2012 fungal meningitis outbreak sickened 778 patients at health facilities across the country. Seventy-six of those patients died. State and federal regulators concluded that NECC was the source of the steroids triggering the outbreak.
Fourteen officers, employees and owners of that Framingham company are under indictment as a result of a lengthy grand jury probe. Trials are scheduled to being next Spring.
Contact: wfrochejr999@gmail.com

Legal Fees in Meningitis Case Top $17 million

By Walter F. Roche Jr.


Requests for legal fees exceeding $17 million have been submitted in the bankruptcy case of the Massachusetts company blamed for a deadly 2012 fungal meningitis outbreak.
The fee requests, which include a total of $10.5 million for the attorney who served as trustee and his law firm, were submitted this week to the judge who has been presiding over the nearly three-year-old case.
Paul D. Moore, the former trustee, submitted a claim for $5.75 million along with a claim for $416.52 in expenses. His law firm, Duane Morris, filed for fees of just under $4.3 million and expenses of $63,601.10.
In a massive filing explaining the request, Moore said that the hourly rates charged, ranging from $625 to $675 an hour, was at a reduced rate from his normal charges. The filings include hour by hour breakdowns of the duties performed, ranging from reading and analyzing emails to appearances in court.
"At the time of the Chapter 11 Trustee's appointment, the debtors situation was dire," the filing states, adding that even after he developed a strategy "implementation was fraught with peril."
Moore's services as trustee ended recently after Boroff approved his liquidation plan, but he will continue to serve as the attorney overseeing the implementation of the liquidation plan.
Under the liquidation plan developed by Moore and recently approved by U.S. Bankruptcy Judge Henry J. Boroff, over $200 million will be available for victims of the deadly outbreak, but legal and administrative fees will come out of the same pot.
The fungal meningitis outbreak, caused by fungus laden injectable steroids, sickened 778 victims across the country killing 76 of them.
Currently, according to filings this week, some 686 civil cases have been filed by victims or their survivors and are pending before another federal judge.
In addition to Moore's and his law firm's filings, claims have been submitted by other attorneys involved in the bankruptcy and financial consulting firms engaged to craft the liquidation plan.
The law firm of Brown Rudnick, which represented unsecured creditors, filed for $3.4 million in fees and $251,992 in expenses, while lawyers representing the unsecured creditors committee, including victims, are seeking $3 million in fees and expenses.
Mesirow Financial filed a claim for $497,655 and $2,329.80 in expenses while Huron Consulting, which was only recently retained, filed for $7,065 in fees and $105.80 in expenses.
Murtha Cullina LLP, a law firm, filed for $211,124 in fees and $2,416 in expenses. The firm, however, already had been paid a $127,300.06 retainer and is only seeking an additional $86,240.
A New Hampshire lawyer,meanwhile, filed motions in several cases for a waiver to file his claims at a later date.
Still other legal fees are likely to be claimed as civil cases are resolved and attorneys collect their share under existing fee agreements.
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