Defective gloves brings jury verdict for worker

Author Subject: Defective gloves brings jury verdict for worker
E-mailed to WI by Oregon Ecobuilding Network Posted At 21:01:14 08/04/2000
Thank you Oregon Ecobuilding Network. When workers are justly vindicated and compensated it's comforting for all.

Full Text COPYRIGHT 2000 Crain Communications, Inc.

McGAW PARK, Ill. -- Allegiance Corp., a subsidiary of Baxter International
Inc. that manufactures latex gloves, plans to appeal the first jury verdict
ever rendered against it for making a defective latex product.

Manufacturers of latex products are concerned because Allegiance is one of the largest latex glove manufacturers and because hundreds of similar cases are pending against it and other makers of latex products (BI, Aug. 9, 1999).

McGaw Park, Ill.-based Allegiance, which Baxter formed in a 1996 spinoff, will seek to overturn the July 13 California state court jury verdict. That verdict requires the company to pay approximately $878,400, plus costs, to Christine McGinnis of Stockton, Calif., a former respiratory therapist, according to plaintiff's attorney Philip Harley of Kazan, McClain, Edises, Simon & Abrams in Oakland, Calif.

Specifically, the jury found that Baxter was responsible for manufacturing
defective gloves that caused her to develop a disabling allergic reaction
while working at St. Joseph Hospital, also in Stockton, during the 1990s. The plaintiff alleged that, until 1996, the company failed to use an effective washing system that would have removed, or greatly reduced, allergenic proteins found in the natural rubber used to make the gloves.

The jury in McGinnis vs. Baxter Health Care initially awarded the plaintiff
nearly $1.13 million in compensatory damages but later reduced the company's liability according to a formula that factored in her 15% negligence and the 15% negligence of her hospital employer.

Ultimately, the jury asked that the manufacturer be solely responsible for the judgment, which was reduced to $878,400 plus costs, according to Mr. Harley. The hospital will not be required to contribute to the award, but the negligence finding against it will preclude it from filing liens against Ms. McGinnis to recover the workers compensation benefits it paid her, he said.

Judge William Pate, who presided over the recent jury trial, denied the
plaintiff's request that the jury consider awarding punitive damages, Mr.
Harley said.

Ms. McGinnis, now 41, has been unable to find a job in an environment free of latex-related products that could trigger symptoms affecting her skin and respiratory system, the attorney said.

Reactions of latex allergy sufferers typically range from skin rashes to
respiratory problems similar to those seen in an allergic person after a bee sting and, in rare cases, can include death.

The McGinnis case was the first of about 40 latex glove cases in California to make it through trial.

"We were pleased with the verdict. It was the first (in California), and the first cases are always difficult," Mr. Harley said. The history of such mass cases is that plaintiffs typically get better and better verdicts as time goes by, he said.

An Allegiance spokeswoman offered a different perspective. "Baxter and the
industry has a pretty good track record," she said.

The McGinnis case was the first jury verdict against Baxter in any
latex-related case, she said. Baxter has never settled any such cases filed
against it, she added.

Overall, jury verdicts against latex manufacturers have been "mixed," and
about 200 cases have been dismissed, she said.

As part of Baxter's 1996 spinoff of the company, Allegiance agreed to
indemnify Baxter for any glove-related claims, the spokeswoman said.

Regardless of the outcome of the appeal, though, Allegiance has "adequate
insurance to cover this claim," she added. She declined to provide additional details.

Hundreds of other cases, however, are pending in federal courts in California, and even more cases are pending in other state and federal courts nationwide.

In addition, some federal and state jurisdictions have consolidated large
numbers of latex glove cases, which allows attorneys pursuing individual cases to share evidence and submit common motions.

Pending cases are being brought under several theories, including negligence, product liability, fraud, failure to warn, failure to take action to reduce the dangers, and breach of warranty, according to Christian C. Mester, a plaintiffs attorney with Freeman & Freeman P.C. in Rockville, Md. "It basically comes down to what did the manufacturer know and when did it know it."

Standard defenses emphasize that latex is a common material found in many
products outside health facilities and that health care workers are
sophisticated users.

In addition, many would-be plaintiffs are precluded from bringing lawsuits
because of statutes of limitations. Also, the exclusive remedy doctrine
generally limits workers' recoveries for job-related injuries to workers
compensation benefits, although that is subject to challenge.

McGinnis vs. Baxter Health Care, Alameda Superior Court, No. 771258-2.

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