Tennessee Injury Law Center

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.)

The fungal meningitis outbreak is bringing the work of compounding pharmacies into the public eye, and many people do not like what they see.

Compounding pharmacies prepare medications that that are not readily available from a true drug manufacturer.  The number of such facilities have exploded in the last decade and now some 2000 of these pharmacies exist.  Most of them produce a relatively small number of products, but some of them, like the New England Compounding Center (NECC)  that compounded the steroid used for epidural injections that gave risk to the outbreak, are quite large.

The Wall Street Journal has  an article in today’s paper about how some doctors are thinking the use of such pharmacies.

Recent changes to Tennessee law substantially limit the liability of those who sell dangerous or defective products.

The manufacturer of the product is the one that is primarily responsible if a dangerous or defective product kills or injures a person.  The seller of the product is only responsible for the product if

• exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused harm;

Here is the latest on the fungal meningitis outbreak first discovered in Nashville and now spreading to other states:

• Seven people have died and 64 have been infected with fungal meningitis, presumably linked to an epidural steroid injection manufactured by a Massachusetts compounding pharmacy.
• Cases of fungal meningitis have now been reported in Tennessee, Florida, North Carolina, Indiana, Michigan, Virginia, Maryland, Minnesota and Ohio.
• The steroid was sold to health care facilities by  New England Compounding Center in Framingham, Mass., a specialty pharmacy that has recalled three lots of the drug and shut down operations.
• The steroid was shipped to 23 states and  those states are now working with local health care providers to notify patients who received the medication.
• A Kentucky judge is thought to be one of the first victims of fungal meningitis originating with contaminated steroids.
• Click on the link to read about the potential liability of those involved in the fungal meningitis outbreak.
• Click on the link to read about the damages recoverable under Tennessee law in the fungal meningitis cases and how those damages will be impacted by the tort reform legislation.
• Click on the link to read the latest from the Centers for Disease Control on the fungal meningitis investigation.
• This article from the Wall Street Journal provides some interesting information on compounding pharmacies such as the New England Compounding Center.
• Tennessee regulations concerning the duty to maintain a sterile environment when compounding drugs.

There are still many unanswered questions about this entire tragedy and the answers to some of those questions will not be known for months and months.  

The reports of fungal meningitis linked to a steroid methylprednisolone acetate injected into back pain patients continue to increase.

It now appears that some 47 patients in seven states have contracted the disease but it is almost certain that the number infected patients will increase.  The public health officials of some 23 states have recovered potentially tainted steroid vials and are in the process of notifying patients that they may have received contaminated steroids.  Seventy-five different facilities were shipped the steroid solution.

To date, the deaths of five people have been linked to the substance.