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A nurse who claimed that she became unable to work around latex after she suffered a series of allergic reactions while on the job saw a Philadelphia Court of Common Pleas jury last week return a verdict in favor of the defendant glove manufacturers. Defense counsel Philip G. Kircher of Philadelphia-based Cozen O’Connor, who represented Safeskin, one of the manufacturers in the case, argued to the jurors that the woman was genetically predisposed to allergies, and that her reactions may not have been caused by the latex gloves that she wore while on the job. The defense verdict did not leave the plaintiff without any recovery, according to the nurse’s attorney, Howell K. Rosenberg of Philadelphia’s Brookman, Rosenberg, Brown & Sandler. Rosenberg said that Safeskin’s co-defendant, Johnson & Johnson Inc., entered into a high-low agreement, and that three other defendants settled prior to trial for a confidential amount. The lawsuit stemmed from the allergies that prevented plaintiff Dorothy Patzek from working as a nurse. She said that those allergies were related to latex exposure. Patzek began work as a nurse at Doylestown Hospital in 1991. According to Rosenberg, the hospital routinely required that its employees use latex gloves. Rosenberg also claimed, that prior to working at Doylestown Hospital, Patzek was in relatively good health, but, in 1993, she developed breathing problems, and was ultimately diagnosed with asthma. Later that year, she left the hospital to begin work at LifeQuest nursing home. While at LifeQuest, Rosenberg said, she was exposed to latex gloves manufactured by Johnson & Johnson and Safeskin. In 1995, she began working two weekend shifts at LifeQuest and also took part-time positions at Quakertown Hospital and Lehigh Valley Hospital as a medical-surgical nurse. According to Rosenberg, Patzek’s health continued to decline, and she was diagnosed as having an allergy to latex in early 1996, and ultimately left her position as a nurse. Five years later, she returned to nursing after she found a position at a latex-free hospital. According to Rosenberg’s opening statement at trial, Patzek was exposed to the latex gloves at a time when the manufacturers knew that the gloves had allergen proteins in them, but the manufactures failed to warn about the allergies on the gloves’ packaging. “They did not warn of the danger, and they did not provide instructions that would have enabled Dorothy Patzek to avoid this potentially career-ending, it certainly was career interrupting, disease,” Rosenberg said. But, the defense attorneys argued that the packaging on the gloves’ boxes clearly stated that the gloves contained latex and that Patzek knew that latex could lead to allergic reactions. Patzek was also genetically disposed to allergies, said Kircher, who also suggested that Patzek’s trouble breathing might not have been caused by an allergic reaction to the latex. “She was predisposed to be allergic,” Kircher said. “And what she was reacting to was something other than the latex, or she was just having anxiety.” At trial, Kircher said, the defense’s main argument was that even if a clear warning had been on the gloves’ package, Patzek would not have heeded the warning. The jury apparently agreed, and determined that while the gloves were defective because of an absence of a warning on the gloves’ package, but, it said, Patzek would not have heeded the warning even if one had been on the package, and therefore the glove manufacturers did not cause her injuries. “And, of course, when you answer that question, you have a defense verdict,” Kircher said. “As her expert said, she was genetically predisposed to allergy.” Rosenberg, who said that last fall, he tried a latex allergy case in which he secured a $842,000 award for the plaintiff, said that the difference between that victory and this year’s defense verdict could be attributed to differences between the plaintiffs. “[Patzek] was a cigarette smoker,” Rosenberg said, and therefore did not heed the tobacco warnings on cigarette packages. “She had also testified in her deposition that she would not have heeded the warning on the gloves had it been present. … It is unfortunate for the plaintiff because the jury basically found that the defendants were bad, that they were responsible for putting out a defective product, but they found against us for causation.” Kircher said that several settlement offers were made during trial, but neither side could agree on the terms of the settlement. John Dames of Chicago’s Kelley Drye & Warren represented Johnson & Johnson. Jeffrey Singer and Melissa A. Wojtylak of Chicago-based Segal McCambridge Singer & Mahoney were Kircher’s co-counsel in the case.

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