Judge Dismisses Product Liability Claims on Clinic

By Walter F. Roche Jr.

In a ruling that was not unexpected, a federal judge has dismissed product liability claims against a Tennessee clinic by victims of the 2012 fungal meningitis outbreak.
In a decision issued Friday in Boston, Mass. U.S, District Judge Rya Zobel concluded that Tennessee's health care liability law trumped claims under the state's product liability statute.
The decision effects some 24 suits filed by patients of the Specialty Surgery Center in Crossville, Tenn.
As she noted in the brief decision, Zobel previously ruled out product liability claims in more than 100 suits filed against the Saint Thomas Outpatient Neurosurgical Center in Nashville, Tenn.
"Given that the statutes conflict only the latter (Health Care Liability Law) may apply," Zobel wrote in the three-page decision.
The decision means the cases will go forward on the health care liability claims alone.
In another development lawyers for victims of the outbreak filed a list of 58 cases filed against health care providers across the country by outbreak victims which are now going to be sent back to the courts where they originated.
Nearly all of the lawsuits stemming from the outbreak had been consolidated in Zobel's court, but now they are being sent back to courts from Nevada to New Jersey for final resolution. The transfers become effective when Zobel signs the proposed order.
The suits are the result of the 2012 fungal meningitis outbreak caused by fungus tainted steroids shipped across the country by the now defunct New England Compounding Center. The outbreak sickened 778 patients. Seventy-seven of them died.
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More Victims Demanding Fund Release

By Walter F. Roche Jr.

Lawyers for another hundred victims of the 2012 fungal meningitis outbreak are calling on a federal judge to force the immediate release of payments from trust funds locked up in negotiations with federal agencies.
Representatives of outbreak victims in Indiana and southwest Michigan say their clients have already waited too long for promised payments and are asking U.S. District Judge Rya Zobel to order a court appointed trustee to begin distributing the money within 30 days.
The six-page motion filed Friday in U.S. District Court in Boston, Mass. is the third such motion to be filed this week. Others were filed in behalf of victims in Tennessee and Virginia.
The growing frustration comes as the fourth anniversary of the deadly fungal meningitis is fast approaching. The outbreak, triggered by thousand of vials of fungus ridden steroids, sickened 778 patients across the country, killing 77 of them. It first became public in September 2012.
The motions filed this week stem from the lack of a final agreement with federal officials over how much from a $200 million victims trust fund will go to reimburse the federal Medicare and Medicaid programs for the medical bills it paid in behalf of victims.
Citing the long wait for reimbursement, the motion filed Friday states, "There are claimants who have encountered financial distress, in addition to severe physical/medical hardships, as a result of injuries from the contaminated epidural injections," the new motion states, noting that some victims died.
Citing repeated promises that an agreement was imminent, the filing adds, "None of those have proven true."
The motion asks Zobel to order the trust fund administrator to distribute the fund to  each victims lawyers within 30 days.
In the alternative the motion asks Zobel to order the U.S. Justice Department to make an immediate response to the requested approval of a proposed settlement with the Centers for Medicare Services.
Like the two prior motions, the one filed Friday also asks Zobel to order CMS to allow victims to formally file their claims and have them processed.
Zobel already has scheduled a session on Aug. 16 to get a report from plaintiffs' lawyers and federal officials on the release of the $200 million.
In another development this week, the lead attorney for outbreak victims filed a copy of a proposed Medicare/Medicaid settlement that still awaits U.S. Justice Department approval.
Under that proposal victims would have any awards from the trust fund reduced by 10.5 to 21.5 percent to reimburse the federal government.
Victims also will have to hand over a share of any awards to the attorneys  who have represented them in the longstanding court battle.
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Medicare Lien Proposal Filed With Court

By Walter F. Roche Jr.

A detailed proposal to resolve millions of dollars in liens faced by victims of the 2012 fungal meningitis outbreak has been filed in U.S. District Court in Boston, Mass. although the plan is still awaiting approval from the U.S. Justice Department.
Under the so-called global settlement, victims receiving awards from a $200 million trust fund will have between 10.5 to 21.5 percent deducted to reimburse the federal Medicare program for the costs paid in their behalf. A small percentage would pay more than 15 percent, the plan states.
Those percentage deductions would be made not only from money recovered from the company blamed for the deadly outbreak, but also any allotments from settlement funds with healthcare provider groups where the victims were injected with fungus loaded steroids.
The details were included in a massive late day filing including four attachments.
Under the plan the higher percentage will apply to those who were hospitalized or under treatment for longer periods of time. The plan utilizes the same matrix and point system previously established under a closely related bankruptcy case.
Claimants in the lowest injury category (VII) would have liens waived.
Medicare, according to the 12-page proposed settlement, would only seek reimbursement on medical claims incurred for victims in a nine month period from Sept. 1, 2012 to May 31, 2013.  That means victims who have continued to incur costs covered by Medicare past May 31, 2013 will not face the loss of additional amounts from any award due to that care.
The plan, which supporters say provides the simplest and quickest method to resolve the hundreds of pending claims comes before a key hearing on Aug. 16 before U.S. District Judge Rya Zobel.
The 14-page motion asks Zobel to approve the proposal even if it has not been approved by the Justice Department.
The petition asserts that the plan utilizes "a simple and easily administered formula" and, if approved, would "resolve the vast majority of claims."
"In general, the higher the injury category and the higher number of points awarded for the long term hospitalization adjustment and for the long term fungal treatment adjustment, the larger the percentage of their total recovery a claimant will pay to resolve CMS (Medicare) liens," the filing by lead attorney Thomas Sobol states/
The filing comes after lawyers for victims in two states, Tennessee and Virginia, filed motions aimed at forcing a final resolution of the Medicare and other liens controversy.
The motion filed in behalf of Tennessee victims asks the court to order the trustee of the trust fund to immediately release payments to at least some of the victims.
The proposed agreement does allow individual claimants to opt out and seek a separate settlement with Medicare. In addition the Center for Medicare and Medicaid Services has agreed to provide "a special person" to handle such opt out claims.
Nonetheless, the initial reaction Thursday from some plaintiff attorneys was concern that victims seeking their own negotiated settlement could face extensive delays not only in getting a final settlement but in even finding out exactly how much Medicare is seeking to recover.
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TN Outbreak Victims Seek Payment Orders

By Walter F. Roche Jr.

Charging that there is no justifiable reason for the lengthy delay, attorneys for Tennessee victims of the deadly fungal meningitis outbreak are asking a federal judge to order a court appointed trustee to release payments to at least some of those victims.
In an eight-page motion filed today, the victims' lawyers said some of their clients have died while waiting for payments while others have been forced to leave their homes and suffered other hardships.
The motion, similar to one filed Monday in behalf of 154 Virginia victims of the fungal meningitis outbreak, asks U.S. District Judge Rya Zobel to act on the petition at a hearing scheduled for Aug. 16 in Boston, Mass.
The motion charges that actions by tort trustee Lynne Riley and prolonged negotiations with the federal government have made it impossible for victims to even find out basic information on how much of any award from a $200 million fund would have to be paid back to Medicare.
Citing the multi-layered process, the motion states "it will be months before many Tennessee claimants receive any settlement money. There is no justifiable reason for the delay."
The motion was filed by Nashville attorney William Leader along with other lawyers representing Tennessee victims of the 2012 outbreak.
The 2012 outbreak, which is nearing its fourth anniversary, sickened 778 patients across the country killing 77 of them. The $200 million tort trust fund includes payments from the former owners of the Massachusetts drug compounding firm blamed for the outbreak. The company shipped thousands of fungus loaded steroids to healthcare providers across the country.
According to the motion, payments are even being blocked  to victims who are not on Medicare and can prove that there are no outstanding liens on their awards.
The motion asks Zobel to "order the trustee to make immediate distributions to the Tennessee claimants who are not Medicare beneficiaries" and can demonstrate there are no outstanding liens.
The motion also faults actions of the lawyers steering committee representing victims in the ongoing litigation in Zobel's court with adding to the delays.
That committee has been seeking a so-called global settlement of Medicare liens, but a tentative agreement has yet to gain final approval.
In addition to seeking immediate payments to non-Medicare victims, the motion asks Zobel to order the federal government to issue conditional payment letters so victims will be able to decide whether to opt in to the global settlement or negotiate an individual settlement.
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Ailing Virginia Outbreak Victims Seek End to Claim Logjam

By Walter F. Roche Jr.

Citing delays of nearly four years and the ongoing suffering and even death of some of their clients, lawyers for 154 Virginia victims of a deadly fungal meningitis outbreak are asking a federal judge to end the bureaucratic logjam holding up the payment of millions of dollars.
In a seven page motion filed Monday in U.S. District Court in Boston, the lawyers said an ongoing review by two federal agencies must be ended one way or another and vital information must be released to individual victims so they can individually pursue a settlement of any claims from the federally funded Medicare and Medicaid programs.
"While justice has remained illusory, certain Virginia victims have died while waiting for severely needed and already appropriated recovery," the brief states.
The filing is the latest development as victims in some 20 states seek to get their share of some $200 million already set aside in federal courts. The claimants are victims of the 2012 fungal meningitis outbreak which sickened 778 patients killing 77 of them.
While the motion filed Monday only applies to Virginia victims, similar efforts are expected from victims in other states including Michigan and Tennessee.
According to the motion negotiations with the Centers for Medicare and Medicaid Services over the recovery of payments made from those programs for the care of victims has been going on for a year without a final agreement.
The motion asks U.S. District Judge Rya Zobel to act at an already scheduled Aug 16 hearing to order the trustee of the $200 million "to make timely distributions without further delay" and to either end the ongoing negotiations or set a deadline for those negotiations to be completed.
"In short the CMS deal is holding up the entire disbursement process," the motion states, citing the increasing frustration of victims.
The motion also asks the judge to stop the trustee from imposing any further restrictions on the release of those funds.
The motion charges that despite this already "untenable situation," the trustee, Lynne Riley,  recently imposed a new requirement that claimants certify that there were no liens other than Medicare or Medicaid on the distribution.
According to the filing federal officials have refused to allow individual claimants to even open a claim, a necessary step before they can "opt out" of any global settlement agreement. That, the lawyers argue, means yet another 60 to 90 day delay before victims can even open a claim.
"These claimants are additionally and tragically further injured" by these delays, the motion states.
Contact: wfrochejr999@gmail.com

Ailing Virginia Outbreak Victims Seek End to Claim Logjam

By Walter F. Roche Jr.

Citing delays of nearly four years and the ongoing suffering and even death of some of their clients, lawyers for 154 Virginia victims of a deadly fungal meningitis outbreak are asking a federal judge to end the bureaucratic logjam holding up the payment of millions of dollars.
In a seven page motion filed Monday in U.S. District Court in Boston, the lawyers said an ongoing review by two federal agencies must be ended one way or another and vital information must be released to individual victims so they can individually pursue a settlement of any claims from the federally funded Medicare and Medicaid programs.
"While justice has remained illusory, certain Virginia victims have died while waiting for severely needed and already appropriated recovery," the brief states.
The filing is the latest development as victims in some 20 states seek to get their share of some $200 million already set aside in federal courts. The claimants are victims of the 2012 fungal meningitis outbreak which sickened 778 patients killing 77 of them.
While the motion filed Monday only applies to Virginia victims, similar efforts are expected from victims in other states including Michigan and Tennessee.
According to the motion negotiations with the Centers for Medicare and Medicaid Services over the recovery of payments made from those programs for the care of victims has been going on for a year without a final agreement.
The motion asks U.S. District Judge Rya Zobel to act at an already scheduled Aug 16 hearing to order the trustee of the $200 million "to make timely distributions without further delay" and to either end the ongoing negotiations or set a deadline for those negotiations to be completed.
"In short the CMS deal is holding up the entire disbursement process," the motion states, citing the increasing frustration of victims.
The motion also asks the judge to stop the trustee from imposing any further restrictions on the release of those funds.
The motion charges that despite this already "untenable situation," the trustee recently imposed a new requirement that claimants certify that there were no liens other than Medicare or Medicaid on the distribution.
According to the filing federal officials have refused to allow individual claimants to even open a claim, a necessary step before they can "opt out" of any global settlement agreement. That, the lawyers argue, means yet another 60 to 90 day delay before victims can even open a claim.
"These claimants are additionally and tragically further injured" by these delays, the motion states.
Contact: wfrochejr999@gmail.com

2nd NECC Defendant Released from Home Detention

By Walter F. Roche Jr.

A federal magistrate judge, over the objections of federal prosecutors and victims, has released a second key defendant from 24-hour home detention while he awaits trial on charges including 25 counts of second degree murder.
In a two-page order issued today U.S. Magistrate Jennifer Boal granted the request of Glenn Chin to be released from all day home detention. She did, however, slightly reduce the number of hours he will be able to leave his Canton, Mass. home.
Chin is one of 14 persons indicted in late 2014 following a two year federal probe of the 2012 deadly fungal meningitis outbreak cause by fungus laden steroids shipped from the New England Compounding Center in Framingham, Mass.
Barry Cadden and Chin were charged with the second degree murder counts. Boal already had granted Cadden's motion allowing him to leave his home during the daytime hours.
In her brief decision Boal said the law required her to impose the least restrictive conditions necessary to ensure Chin would show up for his trial, scheduled for Jan. 5 of next year,
"The court recognizes the seriousness of the alleged offense. However, at this stage of the proceedings, Chin is entitled to a presumption of innocence," Boal wrote, adding, "the sole issue before the court is whether the proposed conditions are the least restrictive conditions that will reasonably assure the appearance of the defendant as required."
She said Chin's compliance thus far decreases the risk of non-appearance.
Not mentioned in her decision were the arguments offered by federal prosecutors including the fact the Chin was first arrested as he and his family were about to board a plane for China. The prosecutor also noted that Chin and Cadden's motions to dismiss the second degree murder charges were turned down.
Under Boal's order Chin will be allowed to leave his home with location monitoring from 7 a.m. to 7 p.m. He had asked for a 7 a.m. to 9 p.m. daily release period. Bail will remain at $50,000.
As with Cadden's request, victims of the 2012 fungal meningitis outbreak had asked that the request be denied.
Two other defendants in the case, Douglas and Carla Conigliaro late last week entered guilty pleas to a single charge apiece of violating a law requiring the reporting of bank transactions in excess of $10,000. Under their plea deal the two are unlikely to serve any jail time.
Carla Conigliaro was the majority shareholder in NECC. Her husband headed a related firm, Medical Sales Management, which marketed NECC products to health providers.
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