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The first latex-glove allergy case to be tried in federal court — a suit that was closely watched by attorneys across the country — has ended with a Minnesota jury absolving the glove maker of any liability. Defense lawyers hailed the case as a good omen for glove manufacturers, who face hundreds of suits by nurses and other health care providers claiming they were sickened by latex allergies. But plaintiffs’ lawyers say that it’s impossible to predict any trend from one case. They point out that the plaintiff in the federal case had dozens of allergies that complicated the issues. Kennedy v. Baxter Healthcare Corp., No. 97-CV1773 (D. Minn.). “This is an encouraging verdict for the company,” says Diane Sullivan, a partner at the Dechert law firm in Princeton, N.J., who represented Baxter. Her co-counsel, John Rothstein of Quarles & Brady in Milwaukee, says it was “important that the jury found the gloves were not defective. The case was borne out by the weight of the evidence. Because it’s the first federal case, it’s being watched very closely.” But Ed Gale of Leonard, O’Brien, Wilford, Spencer & Gale in St. Paul, Minn., one of the attorneys for the plaintiff, said he was “surprised by the verdict,” which came on June 6 after a five-week trial in St. Paul. “I believe the evidence was strong that the gloves were defective,” Gale says. He says he was “anxious to hear from the jurors” about how they interpreted the evidence, but he doesn’t feel the case sets a precedent because the plaintiff, a former nurse, had several serious allergic reactions to things like cats and horses before she was exposed to latex. “Each patient has a unique history of glove exposure and allergic reaction,” says Gale, who was assisted by Tom Atmore of Leonard O’Brien and Ralph Knowles and Leslie Bryant from Doffermyre, Shields, Canfield, Knowles & Devine in Atlanta. ONE OF 500 The Kennedy case was one of about 500 included in federal multidistrict litigation to start this fall in the Eastern District of Pennsylvania in Philadelphia. The suit was remanded to Minnesota after lawyers argued that Kennedy could die at any time from her latex allergy. Hundreds of other latex suits are also in state courts. So far, according to Gale, about 10 latex cases have been tried in state courts around the country, with the outcome about even between defense and plaintiffs. In the Minnesota suit, Kennedy claimed that she could never work again or even leave her house for fear of dying from reaction to latex caused by exposure to Baxter’s medical gloves. Kennedy alleged design defects and failure to warn of potential danger from the gloves. She maintained that the gloves had unreasonably dangerous levels of latex protein and allergens, and that the company could have removed those before selling the gloves. The defense argued that Kennedy had many pre-existing allergies that caused serious reactions in the past and were to blame for her reaction to the gloves. Baxter also argued that it had reduced as soon as technically possible the allergens and proteins from the latex — which is made from rubber from trees — and that there was no scientific evidence linking protein or allergens in gloves to the development of latex allergies. FDA FIREPOWER Sullivan brought in former Food and Drug Administration officials who said that the agency did not want warning labels on latex gloves because they might have discouraged the use of gloves and condoms during the AIDS epidemic. The defense also argued that Baxter had provided various warnings about possible reactions to latex gloves through letters, brochures, videos and other devices. Latex sensitivity is believed to affect less than 1 percent of the U.S. population but as many as 15 percent of those in the medical community, where doctors and nurses and other health care professionals use the gloves routinely. Reactions can range from minor skin irritation to breathing difficulties to fatal anaphylactic shock. Many medical facilities are said to be switching to gloves made of a synthetic material to avoid potential allergic reactions. Sullivan says she felt the keys to winning her case were the testimony of the ex-FDA officials, Baxter’s prompt reaction to the need for warnings and Kennedy’s pre-existing allergy conditions, which included 23 hospital visits. Still, “you can’t make anything out of a single verdict,” says Howell Rosenberg, a plaintiffs’ lawyer who says he has settled about 40 latex cases against Baxter. Rosenberg, with Brookman, Rosenberg, Brown & Sandler in Philadelphia, sits on the multidistrict litigation executive committee and the plaintiffs’ steering committee for latex glove litigation. He says he got an $870,000 settlement last fall in a latex case after the verdict. “But no jury verdict has precedential value,” he says of the Minnesota case. “It shouldn’t have any impact.” Falcone v. Safeskin, No. 1442 (Philadelphia Ct. C.P.) Bob Habush of Habush Habush & Rottier in Milwaukee won a million-dollar jury award in the mid-1990s in what he called one of the first latex suits, against another glove manufacturer, Smith & Nephew. He says the key to winning latex cases is to be selective about clients and avoid people with too many pre-existing allergies. “If a jury can’t decide what’s causing your problems, you can’t win,” Habush says. He added that while “a verdict is a verdict, the federal latex case might have greater impact than a state case on how future cases could be handled.” But, he says, “you still need a good client, good facts and a good lawyer.”

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