Suits Mount Over Meningitis Outbreak

Two new N.J. suits seek more than $50,000 each in damages based on claims under state product viability law.

As the number of people nationwide sickened or killed by meningitis from tainted steroid injections grows, so has litigation.
Jennifer Marko of Millville, N.J., and Brian Pennington of Vineland, N.J., sued New England Compounding Co. 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.

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, N.J. “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, N.J.,-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.

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.

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.

Mary Pat Gallagher writes for the New Jersey Law Journal, a Daily Report affiliate.