As news about the fungal meningitis outbreak continues to dribble out, some might assume that we know what we need to know to evaluate commence and evaluate lawsuits against those responsible for causing the break.
We do not.
The fact of the matter is there is still much to be known about the fungal meningitis nightmare before these cases can be fully evaluated. Why? Because facts essential to understanding the liability issues in this case are in possession of people and corporations who have not yet been forced to share that information. Sure, various governmental agencies have got some information from these folks, and some of that information has found its way to the press, but there is lots of information yet to be fully brought to the public eye or confirmed.
1. How did these steroid injections come to be contaminated? The steroid involved is methylprednisolone acetate. The current understanding is the product came from New England Compounding Center (NECC). But where did NECC get the product or its components from and was the product, or any portion of it, contaminated before it came into NECC"s control or after?
2. What processes did NECC have in place to determine whether the methylprednisolone acetate (or its component parts) were free from contaminants? Is there any documentation that those processes were followed?
3. To the extent the methylprednisolone acetate (or its components) were supplied by others, what documentation is there that the substances were free from contaminants when they left the control of the supplier?
4. Did NECC comply with the law when it supplied the steroids to the sellers? There is some suggestion that individual prescriptions were required for each dose and that NECC did not follow such a rule, but more information is necessary.
5. What did the sellers of the steroids know, and what should they have known, about NECC and its business practices before it chose to buy steroids from them?
6. Did NECC work with any other compounding pharmacy to supply this amount of epidural steroid injections and, if so, what role, if any, did any other pharmacy play in this tragedy?
7. Does NECC have sufficient liability insurance to compensate those injured and killed by this product? If not, under Tennessee law, this may impose financial liability on the seller of the product ( the clinic or surgical center where the steroid injection was given) even if the seller of the product did nothing wrong. (Clink on link to read a post I wrote on this over a week ago called "Who Has Legal Liability Arising From the Fungal Meningitis Outbreak?" This post also discusses Tennessee’s limited liability for product sellers such as the clinics and surgical centers where the injections were given.
8. When did any seller of the steroid product first become aware of a possible contamination of the product and how quickly did they react to it?
9. Do the acts of NECC (and anyone else) rise to the level of recklessness or fraud so as to justify the imposition of punitive damages under Tennessee law? (To read more about the law of Tennessee concerning damages in these cases, click on link to read my post "Fungal Meningitis, Tort Reform, and Damages in Tennessee Personal Injury and Wrongful Death Cases."
10. Is there going to be a claim that any shipper or seller mishandled the steroid and thus caused or contributed to the outbreak?
11. Will NECC or any other defendant argue that fungal meningitis found in a given victim was caused by an exposure to fungus other than that may have been in the steroid?
These eleven questions are just a good start. Some of these questions will be answered during the investigations being conducted by federal and state governments, but many will be answered only during the litigation process. For those who have not been involved in complicated litigation before, the issues in this case seem straight-forward – we have a bad product, with people dead or injured, and thus only the amount of damages is left to evaluate. Those of us who have been involved in complicated litigation before know that there are many, many unanswered questions of fact and law that will impact the ability of the victims of this tragedy to obtain the justice they deserve.
John Day and the other lawyers in his firm represent people who have been injured or lost a loved one due to the negligence of another person or company. John has been listed in Best Lawyers for 20 years, and has the highest legal rating a lawyer can earn by the legal rating services Martindale and AVVO.
An author of three books on personal injury and wrongful death law and over 50 articles for legal publications, John has given approximately 300 speeches to lawyers in over 15 states on personal injury, wrongful death, and related subjects. He represents people across Tennessee in personal injury, wrongful death, medical malpractice, products liability and other civil cases. To read what John’s clients have said about him and his law firm, click here.
If you believe that you or a loved one have contracted fungal meningitis from an epidural steroid injection, John will consult with you at no cost or obligation. Call him at 615.742.4880 or tollf-ree at 866.812.8787. You may also fill out our Contact Form and we will call you.