NECC Supports MDL for Fungal Meningitis Cases, As Lawsuits Mount

As a growing number of individuals throughout the United States pursue a lawsuit over the recent fungal meningitis outbreak, which has been linked to epidural steroid injections and other medications mixed by the New England Compounding Center (NECC), the pharmacy has indicated they support the consolidation of all cases filed in the federal court system as part of an MDL, or multidistrict litigation.

On November 8, attorneys for NECC filed a response (PDF) with the U.S. Judicial Panel on Multidistrict Litigation (JPML) supporting the establishment of an MDL for all lawsuits filed on behalf of individuals who received the recalled steroid injection methylprednisolone acetate from the compounding pharmacy.

NECC issued a nationwide recall for the epidural steroid on September 26, amid concerns that the medications were contaminated and causing fungal meningitis among individuals who received the injection to treat back pain. The company subsequently recalled all of their other compounded products and voluntarily ceased all operations on October 3, 2012.

According to the latest information released by the U.S. Centers for Disease Control and Prevention (CDC), nearly 450 confirmed injuries have been linked to the NECC medications, including 32 deaths. Among the injuries are 428 cases of fungal meningitis, stroke due to presumed fungal meningitis or other central nervous system infections, plus 10 peripheral joint infections in the knee, hip, shoulder or elbow.

“Hundreds” of Fungal Meningitis Lawsuits and Wrongful Death Claims Expected

In the filing with the U.S. JPML, the compounding pharmacy indicates that it is aware of at least 28 lawsuits filed over the recalled epidural injections in seven different U.S. District Courts, including at least five class action lawsuits over the fungal meningitis outbreak.

NECC indicates that it expects that “hundreds of additional personal injury and wrongful death lawsuits will eventually be filed.” However, the eventual number of claims may actually end up in the thousands.

Although federal health officials have indicated that the window for new infections may be closing, since it has now been more than 4 weeks since the last contaminated injections were distributed, the total number of individuals impacted by the outbreak is expected to continue to increase in the coming months as other cases are reported or properly diagnosed.

In addition, a number of the lawsuits have been filed on behalf of individuals who received a steroid injection from NECC, and had to undergo testing due to the “fear” of developing the injury.

NECC distributed an estimated 17,000 shots of the recalled epidural injection, and CDC estimates that about 14,000 people were exposed to the potentially tainted drugs. The FDA has also confirmed that contaminants have been found in additional products compounded by the pharmacy.

Request to Expedite Consideration of Fungal Meningitis MDL

The original motion to consolidate the fungal meningitis litigation as part of an MDL was filed on October 16, shortly after the first cases were filed.

Because the lawsuits involve common questions of fact, the establishment of an MDL before one judge is designed to eliminate duplicate discovery, avoid contradictory pretrial rulings and to serve the convenience of the parties, the witnesses and the courts.

The U.S. JPML is next scheduled to meet on Thursday, November 29 at the SMU Dedman School of Law in Dallas, Texas. However, the panel has not yet scheduled oral arguments to be heard that day, meaning that the motion may not be considered until the next scheduled hearing on January 31, 2013 in Orlando, Florida.

Last week, a motion was filed by two plaintiffs to expedite the consideration of this MDL, asking the U.S. JPML to place this matter on the agenda for the meeting later this month.

Concerns have been raised about the ability of NECC to cover the mounting claims, amid rumors that the compounding pharmacy will be filing bankruptcy in the near future. The motion indicates that some plaintiffs may pursue individual efforts to obtain piecemeal prejudgment security against the pharmacy, and that a single transferee court is necessary to determine any necessary orders regarding the preservation of NECC’s assets in the face of countless claims being asserted against a limited fund.