Why A 1970s Consumer Statute May Be Key To TN Meningitis Lawsuits

There are just under 3,000 cases of meningitis reported in the U.S. each year. Photo Credit World Health Organization

Victims of last year’s fungal meningitis outbreak – first spotted in Tennessee – are filing lawsuits nearly every day ahead of an October 1^st cutoff. Most of them are counting on a consumer protection law passed by the state legislature in the late 1970s.

With 750 cases and 64 deaths nationwide, victims and regulators have placed much of the blame on the New England Compounding Center. It produced and shipped the moldy steroids to pain clinics around the country. But NECC has been declared bankrupt.

Tennessee has a statute that says if a manufacturer is insolvent, then someone hurt by a product can go after the seller instead. Nashville’s Saint Thomas Outpatient Neurosurgical Center administered more doses than anyone else in the state. Injury lawyer Mark Chalos says the clinic essentially acted as a seller under consumer statutes.

“It’s a law that’s been on the books for a very long time. It’s not often used,” Chalos says. “But in these circumstances it’s something these families in Tennessee could ultimately benefit from and hopefully hold these wrongdoers accountable, all of them.”

The clinic’s lawyer – C.J. Gideon – says his client doesn’t sell anything; it provides services. He contends the only laws that might apply are in the health care liability act, informally known as malpractice statutes.

“I don’t think this is a material legal issue,” Gideon says, acknowledging that plaintiffs will still try to show the clinic was negligent in purchasing the compounded steroids, even if the consumer protection claims are thrown out.

As many as 150 fungal meningitis lawsuits are expected in Tennessee. Victims and their families may not be eligible for as much compensation as those in other states. Tort reform passed in the legislature two years ago limited non-economic damages to $750,000 as a move to be more business-friendly.