Number Of Suits Increasing Over Meningitis Outbreak

As the number of people nationwide sickened or killed by meningitis from tainted steroid injections grows, so has litigation, including suits filed in New Jersey on Tuesday.

Barrett Michael

Barrett Michael

Jennifer Marko of Millville and Brian Pennington of Vineland sued New England Compounding Co. (NECC) of Framingham, Mass., which allegedly prepared fungus-contaminated steroid shots and sent them to more than 70 clinics in 15 states.

As of Wednesday, there were 247 confirmed cases of people who got sick and 19 people who died after being injected with the medication for pain relief, according to the federal Centers for Disease Control and Prevention in Washington, D.C.

NECC has voluntarily recalled all products from the Framingham facility and suspended operations during a government investigation.

The company could not be reached for comment about the N.J. suits, but a statement issued earlier this month called the fatalities and illnesses “tragic.”

Most cases involve fungal meningitis, an infection of the membranes that cover the brain and spinal cord. But the CDC is also counting people who had strokes that might be related to meningitis and two cases involve injections in other parts of the body.

The fungal form of meningitis is rare and not contagious. Neither Marko nor Pennington has been diagnosed with it thus far. But both claim that they face a heightened risk of contracting the disease and that they have meningitis-like symptoms. Marko has severe headaches, slurred speech and a heavy tongue; Pennington has fevers, photosensitivity, and pain in his neck and left arm.

Marko says a lumbar puncture to test for meningitis came back negative but she has an elevated white-blood-cell count that could be indicative of the disease.

The CDC says the disease typically develops within four weeks but can take longer.

Marko got her injection, for sciatica, on Sept. 19. Pennington received his, for chronic back pain, on Sept. 10.

“My clients are scared to death,” says the attorney for Marko and Pennington, Michael Barrett of Saltz, Mongeluzzi & Bendesky in Philadelphia and Marlton. “Their prognosis is totally unknown at this point.”

Their suits, filed in Cumberland County, seek more than $50,000 each in damages based on claims of violation of New Jersey’s Product Liability Act, negligence and breach of express warranty.

Also named as defendants are the facility where they were injected – Premier Orthopaedic and Sports Medicine Associates of Southern New Jersey LLC in Vineland – and the staff doctors who administered the shots.

Premier Orthopaedic is one of seven places in New Jersey that received allegedly tainted lots of methylprednisolone acetate, with others located in Edison, Teaneck, South Plainfield, Sparta and Elmer.

Barrett says he expects many more cases to be filed and adds he would not be surprised by mass tort treatment.

Thus far, 12 people who got shots in New Jersey have been diagnosed with meningitis, with no deaths.

Tennessee, with 59 cases and six deaths, has been hardest hit, followed by Michigan, with 48 cases and three deaths; Virginia, 37 cases and two deaths; and Indiana, 32 cases and two deaths.

Class Action in Minnesota
A putative class action, Puro v. New England Compounding Pharmacy, 12-cv-2605, was filed on Oct. 11 in the U.S. District Court for Minnesota, where injections have resulted in five cases of meningitis, with no deaths to date.

Barbe Puro of Savage, Minn., seeks to represent a class of all Minnesota residents who suffered “bodily harm, emotional distress, and other personal injuries after being injected with NECC’s contaminated steroid.”

The CDC says six clinics in Minnesota got the suspect steroids. One was the Medical Advanced Pain Specialists clinic in Shakopee, where Puro claims she received a contaminated shot on Sept. 17.

Like Marko and Pennington, Puro does not claim a meningitis diagnosis but says she suffered headaches and nausea for a week. After state health officials contacted her about the contamination, she underwent a spinal tap, blood work and other testing.

Puro is making claims for personal injuries, emotional distress, and medical and other expenses she has incurred. Unlike Marko and Pennington, she has only sued NECC and not the local clinic. Her complaint asserts claims for strict liability and negligence.

Puro’s lawyer, Jeffrey Montpetit, says one reason he sued in federal rather than state court is that he expects all the suits will wind up centralized in federal court by the Judicial Panel on Multidistrict Litigation.

He views it as “inevitable” based on his experience representing several plaintiffs who sued over body parts pilfered from cadavers.

Although those clients asserted only Minnesota state law consumer claims, they were swept along with hundreds of others into the MDL litigation in New Jersey District Court, In re Human Tissue Products Liability Litigation, 06-cv-135, MDL No. 1763.

“Sheer numbers will drive this into an MDL,” says Montpetit, of Sieben Grose Von Holtum & Carey in Minneapolis.

Almost 14,000 people, injected since May 12, have potentially been exposed to tainted doses.

Wrongful Death Case in Tennessee
One wrongful death action, Rybinski v. NECC, has been brought by the family of Thomas Rybinski, of Smyrna, Tenn., the first person diagnosed with fungal meningitis, who died Sept. 29 after an injection on July 30.

Filed in the Circuit Court for Davidson County, Tenn., on Tuesday, it asks for $15 million in damages.

Randy Kinnard of Kinnard Clayton & Beveridge in Nashville, the lawyer for Rybinski’s widow, Colette, also represents Janet Russell of Hendersonville, Tenn., who claims she developed fungal meningitis after an injection on Aug. 30.

She has allegedly been hospitalized since Sept.. 18, suffering pain, stroke, permanent disability, emotional distress, loss of enjoyment of life, and medical expenses. She and her husband seek a combined $15 million in a complaint filed Monday in the same court.

Kinnard says he will soon be filing complaints for two other families who lost members.

At least two other federal suits have been filed, both in the Eastern District of Michigan, on Oct. 15.

Bansale v. NECC, 12-cv-14559, is a putative class action filed by Marc Lipton of The Lipton Law Center in Southfield, Mich., on behalf of Brenda Bansale of Howell, whose 10-count complaint includes claims for product liability, strict liability and negligence.

The other is Laperriere v. NECC, 12-cv-14581, filed by Terry Dawes of Fieger Fieger Giroux & Danzig in Southfield, for Lyn Laperriere. He alleges he received a preliminary diagnosis of bacterial meningitis for which the standard treatment proved ineffective.

Once he learned of the fungal contamination, he switched to the correct treatment and remains hospitalized, according to the complaint.

Also filed on Oct. 15 was York v. NECC, in the circuit court for Florida’s Marion County.

Vilinda York claims she became ill in September after she had injections on Aug. 15 and 28 to alleviate back pain from a motorcycle accident. Her claims are for negligence and strict liability.

Like the non-New Jersey plaintiffs, York sued NECC only.

John Piccin of Ocala, who represents York, says she has been hospitalized for a month.

He also says he is speaking to a few other potential plaintiffs. One is the brother of a former client he represented in an automobile accident case who died in May after an epidural injection for injuries from the crash.

Mary Pat Gallagher is a reporter for the New Jersey Law Journal, a Legal affiliate.

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