Lawsuits hit courts after state meningitis outbreak

Monday, October 22, 2012 at 12:14am

A batch of infected epidural shots from a pharmaceutical company in Massachusetts are thought to be the cause of more than 60 cases of fungal meningitis in Tennessee, according to the state’s Department of Health.

And while the fatal mistake by New England Compounding Center has left dozens of people suffering, it also has local attorneys prepping for legal action.

“I think there will be litigation, and I think it will be fairly widespread,” said attorney Beth Alexander of Lieff Cabraser. “We have been getting a lot of calls every day.”

A quick search for “Nashville meningitis attorney” online shows dozens of local law firms have geared their services toward the disease outbreak. Kinnard, Clayton and Beveridge, a firm on Woodmont Boulevard, even registered the online domain name “meningitisoutbreaklawyerstn.com” on Oct. 12, according to online records.

Kinnard, Clayton and Beveridge also filed the first lawsuit in the case on Oct. 15 in Davidson County Circuit Court. The suit asks for $15 million in damages for a Hendersonville resident who has been hospitalized for nearly a month.

“Time, in general, is not friendly to the injured family,” attorney Randy Kinnard said. “It is better, in our judgment, to act as prudently as possible.”

Attorneys Kinnard and Daniel Clayton filed a second lawsuit on Oct. 17 in the same court. The suit was filed on behalf of Smyrna resident Collette Rybinski, whose husband Thomas Rybinski died from fungal meningitis on Sept. 29.

Attorneys handling these cases will also have to make a decision about where to file the lawsuits. Some suits have been filed in federal court in Minnesota and Michigan. Others have filed in Massachusetts, where the pharmacy is located.

Kinnard elected to file in Davidson County because the injuries occurred following injections at St. Thomas Hospital’s Outpatient Neurosurgical Center. He said the plaintiffs in the cases would also rather testify close to home.

Kinnard won’t seek class-action status. “In general, if you can pursue your case in an individual case ... we prefer that. Our clients prefer that,” he said. “We don’t think a class action would be appropriate. Our facts will be different.”

But while the extent of personal injuries may be different, crucial facts regarding the outbreak have already been discovered by state and federal agencies.

“When a person comes in and says they think they’ve been the victim in a malpractice ... we have to do all the investigation,” Kinnard said. “Here, obviously, a tremendous amount of work has been done by the [Centers for Disease Control and Prevention] and [Federal Drug Administration] already. That certainly is an advantage. ... It facilitates getting in the right direction.”

Alexander said the cases would be “pretty straightforward.”

“Usually it’s a question of causation. ‘Did the drug really do harm that wasn’t expected?’ ” Alexander said. “Here, I don’t think that’s going to be too much of an issue. The contamination link is pretty clear.”

The CDC released new numbers last week that upped the national meningitis death toll to 20 and the state toll to 8, with the overall amount of infected people topping 250. The onslaught of potential lawsuits against New England Compounding Center could further complicate legal proceedings, Kinnard said.

“Legal questions are going to arise if or when the New England Compounding Center is declared insolvent,” Kinnard said. “I don’t know what their financial situation is. I can see somebody being overwhelmed with lawsuits and seeking the safety of bankruptcy.”

And while the legal avenues for victims are plentiful, Alexander is asking potential clients to worry about their health first.

“Our message to people who have contacted us, first and foremost, is to make sure you are talking to your doctor, because catching it early can be a matter of life or death,” Alexander said.

“The test to find out if you might have a problem is a spinal tap, and I think that scares people, it scares me ... but it’s better to get an unpleasant test than to get really sick from this.”