A Boston federal magistrate judge is allowing plaintiffs' experts to conduct "destructive" testing, including inspection of walls and ductwork, at New England Compounding Pharmacy Inc., a company linked to a fungal meningitis outbreak that caused 37 deaths.
In addition, the federal judge running the consolidated docket of District of Massachusetts cases for pretrial purposes, In Re New England Compounding Pharmacy Cases, has remanded two of the cases back to state court.
New England Compounding's injectable steroids from three recalled lots of preservative-free methylprednisolone acetate have been linked to a multistate outbreak of fungal meningitis and other infections. The Centers for Disease Control and Prevention counts 590 cases and 37 deaths associated with the outbreak.
In a Dec. 10 order, U.S. Magistrate Judge Jennifer Boal of the District of Massachusetts granted plaintiff Chad Green's motion to conduct inspections and tests.
In the inspection order, Boal wrote, "Time is of the essence. Several months have passed since the relevant events and the passage of time will only make it more difficult for Green to obtain scientifically valid information."
In arguing for the testing, Green claimed his expert could identify the age of mold, use samples collected on site "to determine whether an area has had a consistent presence of fungal spores and ascertain if the facility complies with pharmaceutical compounding standards."
Boal wrote that Green's proposal to conduct "minimally invasive" testing seems "reasonable, necessary and relevant."
The proposed testing includes "sampling of wall, roof, ceiling and foundational assemblies and cavities, interior mechanical systems, including, but not limited to HVAC systems and its ductwork and plumbing systems," plus sampling of carpet edging and testing of the clean room.
Boal also wrote that the defendants and their expert may attend the inspection, conduct similar tests or take their own samples and have access to the results of Green's tests.
She ordered Green to confer with other plaintiffs, the defendants, and the U.S. government, which is conducting an investigation of allegations about the company. If the parties cannot agree on a protocol, each must file their own proposal by Dec.14.
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