Predictably, a fungal meningitis class action lawsuit has been filed against New England Compounding Center. The lawsuit seeks a class of people from Minnesota – not people from other states.
I will not be particularly surprised to see such a lawsuit in Tennessee, but I predict it will not be certified as a class action. You see, the simple filing of a class action lawsuit has little meaning. A class action lawsuit takes on meaning only if a judge agrees that class action certification is appropriate.
To certify a class action under Tennessee law, a judge must determine that "(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interest of the class." This is a very hard burden to meet in personal injury and wrongful death cases. In fact, I don’t know of single class action involving personal injury and wrongful death claims that has ever been certified by a state court in Tennessee. (I am not saying it has never happened, but I certainly do not remember ever hearing about one in the last 30 years.)
There is another reason why a class action would be a problem in the fungal meningitis cases – the company or companies sued in the class action in state court would have an automatic right to appeal the class action certification decision, which would add a year or more to the litigation. The litigation over whether or not to certify a class would typically take place before any substantial work is done on the merits of the case and thus a class action effort, in my opinion, would not be in the best interests of those who have been harmed.
In any event, any person who is part of any class action that is certified has the right to "opt-out" of the class action litigation.
Thus, I do not think that those who have contracted fungal meningitis or the families of those who have died should spend much time worrying about whether or not they will be forced into a class action. I do think,, however, that these people should seek out a lawyer who will effectively represent them in their individual case.
John Day and the other lawyers in his firm represent people who have been injured or lost a loved one due to fungal meningitis contracted after receiving an epidural steroid injection.
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.