By KRISTIN M. HALL, Associated Press | December 13, 2012 | Updated: December 13, 2012 7:28pm
NASHVILLE, Tenn. (AP) — Dennis
O'Brien rubs his head as he details ailments triggered by the fungal
meningitis he developed after a series of steroid shots in his neck: nausea,
vomiting, dizziness, drowsiness, blurred vision, exhaustion and trouble with his
speech and attention.
He estimates the disease has
cost him and his wife thousands of dollars in out-of-pocket expenses and her
lost wages, including time spent on 6-hour round trip weekly visits to the
hospital. They've filed a lawsuit seeking $4 million in damages from the
Massachusetts pharmacy that supplied the steroid injections, but it could take
years for them to get any money back and they may never get enough to cover
their expenses. The same is true for dozens of others who have sued the
now-shuttered New England Compounding Center.
"I don't have a life anymore. My
life is a meningitis life," said the 59-year-old former school teacher who got
the shots after having a series of neck and back surgeries, adding that he's
grateful he survived.
His is one of at least 50 federal lawsuits in
nine states that have been filed against NECC,
and more are being filed in state courts every day. More than 500 people have
gotten sick after receiving injections prepared by the pharmacy, including about
370 cases of a rare fungal form of meningitis.
The lawsuits allege that NECC
negligently produced a defective and dangerous product and seek millions to
repay families for the death of spouses, physically painful recoveries, lost
wages and mental and emotional suffering. Thirty-seven people have died in the
outbreak.
"The truth is the chance of recovering damages
from NECC is extremely low," said John
Day, a Nashville attorney who represents several patients who have been
sickened by fungal meningitis To streamline the process,
attorneys on both sides are asking to have a single judge preside over the
pretrial and discovery phases for all of the federal lawsuits.
This approach, called multidistrict litigation,
would prevent inconsistent pretrial rulings and conserve resources of all
parties. But unlike a class-action case, those lawsuits would eventually be
returned to judges in their original district for trial, according to Brian
Fitzpatrick, a law professor at Vanderbilt
University Law School in Nashville.
Even with this approach,
Fitzpatrick noted that federal litigation is very slow, and gathering all the evidence, records
and depositions during the discovery phase could take months or years.
"Most of the time what happens
is once they are consolidated for pretrial proceedings, there is a settlement, a
global settlement between all the lawyers and the defendants before anything is
shipped back for trial," he said.
A
lawyer representing NECC, Frederick
H. Fern, described the consolidation process as an important step.
"A Boston venue is probably the
best scenario," Fern said in an email. "That's where the parties, witnesses and
documents are located, and where the acts subject to these complaints
occurred."
Complicating efforts to recover
damages, attorneys for the patients said, NECC is a small private company that
has now recalled all its products and laid off its workers. The pharmacy licenses have been surrendered, and it's unclear whether NECC had
adequate liability insurance.
Fern said NECC has insurance,
but they were still determining what the policy covers.
But Day says, "It's clear to me
that at the end of the day, NECC is not going to have sufficient assets to
compensate any of these people, not even 1 percent."
As a result, many attorneys are seeking
compensation from other parties. Among the additional defendants named in
lawsuits are NECC pharmacist and co-founder Barry
Cadden; co-founder Greg
Conigliaro; sister company Ameridose and its marketing and support arm,
Medical Sales Management.
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