Thursday, December 06, 2012 3:10 pm
Meningitis victims can likely inspect pharmacy
By DENISE LAVOIEAP Legal Affairs Writer
U.S. Magistrate Judge Jennifer Boal said she is inclined to allow the inspection by experts and lawyers for more than a dozen victims who filed lawsuits in Massachusetts against the New England Compounding Center.
The plaintiffs allege that they contracted fungal meningitis from contaminated steroid injections made by NECC. Health officials say 36 people have died and more than 500 others have been sickened nationwide by the injections.
Judi Abbott Curry, an NECC attorney, said the company agrees that the plaintiffs' lawyers have the right to inspect the facility, but she argued that the inspection should be conducted after a federal judicial panel rules on whether the lawsuits in Massachusetts and hundreds more around the country should be consolidated before a single court. A judicial panel is scheduled to hold a hearing on that issue in January.
But Boston attorney Kimberly Dougherty, legal liaison for the lawsuits filed in Massachusetts, said the victims should be allowed to do the inspection as soon as possible. Dougherty said they want to do a four-day inspection that would include cutting holes in the walls, ceiling and floors for swabbing, photographing and other testing.
"We don't have any alternative way to get this evidence," Dougherty said.
Dougherty said lawyers in the Massachusetts cases are willing to share their test results with lawyers who have filed suit elsewhere.
Curry said conditions at the facility have changed since the steroid injections were made, because numerous government investigators have been in and out over the past few months. She said an expert hired by NECC believes there is no test that will pinpoint the exact age or origin of mold spores.
Inspections by federal health regulators found a host of potential contaminants, including standing water, mold and water droplets.
Curry said conditions at the facility also could have been affected by Superstorm Sandy, which devastated parts of New York, New Jersey and Connecticut but caused relatively minor damage in Massachusetts. Curry said the plaintiffs' attorneys will not be able to determine whether certain things, such as water infiltration, occurred at the plant before or after the storm.
That argument drew skepticism from attorney Michael Hugo, chairman of the Framingham Board of Health.
"I'll tell you what - we didn't get much rain from the storm in Framingham," Hugo said after the hearing.
Dougherty said there are ways to test for degradation of wood and to evaluate the age of mold.
"If it was recent as a result of this hurricane, we'll be able to tell," she said after the hearing.
Dougherty urged Boal to allow the plaintiffs to inspect the property by the end of December, saying she fears that if they wait any longer, NECC will argue that their testing was conducted too long after the contaminated steroids were discovered.
Assistant U.S. Attorney Zachary Cunha, whose office is conducting a criminal investigation into NECC, told Boal that prosecutors want to be present for any inspections. Dougherty said the victims' lawyers do not object.
Boal said she expects to issue a written order after receiving suggested protocols for the inspection from lawyers.