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Meningitis outbreak: Cases moved from state to federal court

12:17 PM, Dec 1, 2012   |    comments
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Lawyers for the drug compounding firm blamed for a deadly nationwide outbreak of fungal meningitis are moving forward with a strategy to get the growing number of lawsuits consolidated in federal court and want a Boston-based judge to preside over all of them.

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Federal court records show that a total of 37 cases originally filed in state and county courts have been transferred to federal courts across the country at the request of lawyers representing the New England Compounding Center. The lawyer for the company, headquartered in suburban Framingham, says it wants the cases eventually to be consolidated in Massachusetts.

That would include six suits originally filed in circuit court in Nashville and subsequently transferred to U.S. District Court here.

Forty other cases against the company were filed in federal courts to begin with, pushing the total number of pending federal suits over 70. Dozens of additional suits still remain in local courts, including seven in Davidson Circuit Court. Lawyers for the compounding firm have predicted that the final total will top 400.

In several of the transferred cases, New England Compounding's lawyers have stated that their ultimate goal is to have all of the cases consolidated in Boston before U.S. District Judge F. Dennis Saylor IV, who currently has a dozen cases assigned to him.

"Judge Saylor has the judicial experience needed to steer this anticipated massive litigation on a prudent course to an expeditious conclusion," New England's attorney wrote in a recently filed brief.

"That's what their plan is," said Nashville attorney Randy Kinnard, who represents Colette Rybinski of Smyrna, the widow of Thomas W. Rybinski , who was the first patient to be diagnosed with fungal meningitis. He also represents nine other victims.

A panel of federal judges is scheduled to decide in January whether the cases should be consolidated and, if so, in what court. A move to have that decision issued on an expedited basis was turned down.

"Consolidating these cases to a single federal court will save time for all parties, save judicial resources by having one judge preside and streamline the discovery process," said Fred Fern of Harris Beach, the lead defense firm for the Massachusetts drug compounder.

"A Boston venue is probably the best scenario," he added.

Vanderbilt University Law Professor Edward Cheng said plaintiff lawyers typically like to keep cases in state courts because of convenience, familiarity and potential legal advantage. But cases involving out-of-state defendants often get moved to federal court, he said.

The drug firm's strategy is not sitting well with lawyers representing victims who were injected with a fungus tainted spinal steroid, especially one situated in the company's back yard, and some have filed motions to have the cases sent back to local courts.

A New Jersey attorney who represents several people who were injected with tainted steroids is fighting to get his cases sent back to local courts in South Jersey.

"I can only conclude that New England Compounding does not want a jury in southern New Jersey to hear these cases," said attorney Michael Barrett.

Kinnard, however, said that if the cases are consolidated early in the process, they could be sent back to federal courts in one of the cities where they originated. That could lead them to Nashville, where six of the cases were originally filed, he said.

The federal law allows for parties in law suits to centralize cases for pretrial matters, said Mark Chalos, another Nashville attorney who has been following the meningitis cases and represents clients who haven't yet gone to court. The centralization process is designed to promote efficiency and avoid conflicting rulings in different federal courts, he said.

One of the issues likely to surface, Kinnard said, is whether additional defendants from other states like Tennessee can be added. "That is an issue eventually," he said, adding that that development would raise questions about whether the federal court had jurisdiction.

Cheng, the Vanderbilt professor, said lawyers often prefer local juries and state judges because they anticipate a more sympathetic hearing.

"There's been some work suggesting that plaintiffs' attorneys do think that local juries and local state judges will be more sympathetic to their position," he said. "Either because those judges are less pro-business or that the defendant is an out-of-state defendant."

But Kinnard said there may not be a difference in regard to monetary verdicts.

If there's no overriding federal statute, judges are required to defer to state law.

"The federal judge is required to apply the law of Tennessee," he said. "In other words, there is no federal law on the question of negligence or damages to the plaintiff."

Contact Walter F. Roche Jr. at 615-259-8086 or wroche@tennessean.com.

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