Hagens Berman's Kristen Johnson Parker
Todd & Weld's Heidi Nadel
A Boston federal judge has ordered the plaintiffs and defendants in the New England Compounding multidistrict litigation to preserve potential evidence about the company's links to a fungal meningitis outbreak.
Injectable steroids from three recalled lots of the company's preservative-free methylprednisolone acetate have been linked to a multistate meningitis outbreak and other infections. The Centers for Disease Control and Prevention has tallied 590 cases and 37 deaths stemming from the outbreak.
On December 13, Judge F. Dennis Saylor IV of the District of Massachusetts issued three preservation orders and two orders appointing liaison counsel.
Eleven cases comprise In Re New England Compounding Pharmacy Cases, which have been consolidated for pretrial purposes. Two others were remanded to Massachusetts state court on December 11.
The preservation order for New England Compounding Pharmacy directs it to preserve documents, including drafts and handwritten notes, electronically stored information on all types of devices and "tangible things" that likely to be relevant and subject to discovery in the case.
The order covers items currently in the custody of or possessed by third parties.
Saylor also said that New England Compounding may not change or destroy its "clean rooms, anterooms, preparation rooms, and mechanical spaces" including the doors, equipment, fixtures and HVAC systems unless the court or a governmental authority with jurisdiction directs it to do so.
He also ordered New England Compounding to stop the "routine destruction, recycling, relocation, or alteration of documents, [electronically stored information] or tangible things" unless it makes reasonable plans to preserve evidence that would otherwise be lost.
Saylor's preservation order for sister company Ameridose LLC, which closed in October during a government investigation, is similar but does not include language about the clean room.
The preservation order for the plaintiffs and individual defendants contains similar directives about documents and electronically stored information. The six individual defendants include Barry Cadden, who was an owner, president, head pharmacist, and director of pharmacy at New England Compounding until recently.
The preservation orders follow an order issued by U.S. Magistrate Judge Jennifer Boal of the District of Massachusetts on December 10, granting plaintiff Chad Green's motion to conduct inspections and tests at the company's site.
In addition, Saylor appointed Kristen Johnson Parker, an associate in the Boston office of Hagens Berman Sobol Shapiro of Seattle, as interim liaison counsel for the plaintiffs. He also appointed Heidi Nadel, a partner at Boston's Todd & Weld, as interim liaison counsel for the individual defendants.
Saylor is moving forward with the litigation until the judicial panel on multidistrict litigation (MDL) decides whether to consolidate 83 cases in its docket. The MDL panel has scheduled a consolidation hearing on January 31, 2013.
Mark Zamora of the Zamora Firm of Atlanta, who represents Green, said New England Compounding had argued that identifying third parties who may have some evidence or documents was unreasonable
"[The orders] were key wins for the plaintiffs, Zamora said.
Parker and Nadel did not respond to requests for comment.
Other lawyers on the consolidated case did not respond to requests for comment. These include several Boston firms on the plaintiffs' side: Brown Rudnick; Meehan, Boyle, Black & Bogdanow: Parker Scheer; Shapiro Haber & Urmy; Sheff Law Offices; Sugarman, Rogers, Barshak & Cohen; Thornton & Naumes and Kyros Law Offices in Hingham, Mass. Winer & Bennett of Nashua also represents plaintiffs.
New England Compounding's lawyers at Harris Beach of Rochester, N.Y. and Chicago-based Hinshaw & Culbertson also did not respond to requests for comment.
Ameridose is represented by Cleveland's Tucker Ellis and Tucker, Heifetz & Saltzman of Boston.
Sheri Qualters can be contacted at squalters@alm.com.
