After an outbreak of Hepatitis among the patients of a Brooklyn, New York colonoscopy clinic, an investigation by the Department of Health and over fifty lawsuits followed. The cases were consolidated for pre-trial discovery by Justice Joseph Levine of the New York State Supreme Court for Kings County. Judge Levine designated a Plaintiffs' Steering Committee (PSC), who would conduct the liability phase of discovery and, eventually, the trial. Ken Nolan and Jeanne O'Grady of the New York office were named to the Plaintiffs' Steering Committee.

The Committee focused its efforts on gathering evidence that the patients were infected as a result of the asterile techniques utilized by the clinic's physicians and employees in conducting the colonoscopic procedures and administering anaesthesia, specifically the re-use of multi-dose vials of anaesthetic. Upon motion made by Jeanne O'Grady on behalf of all plaintiffs and months of negotiations with the Department of Health, we were able to obtain not only the results of the Department of Health's investigation into the Hepatitis outbreak, but also the underlying data pertaining to all patients who had visited the clinic during the period of infections, redacted of any information that might allow the parties to identify any non-plaintiff patients. When this vast amount of information was released, the plaintiffs realized that the liability case was extremely difficult. Of approximately 40 remaining plaintiffs (a number were determined not to have contracted any communicable disease), only a handful were in "clusters," meaning they had been treated consecutively and therefore the infection could be traced to the reuse of the multi-dose vials among them. The remaining infections were virtually impossible to prove. Additionally, this theory of liability pointed to only the anaesthesiologist, an independent contractor of the clinic with limited insurance coverage.

Despite the difficulties in the liability case, and the limited damages suffered by the majority of plaintiffs who did not suffer an active infection, the Plaintiffs' Steering Committee successfully negotiated a multimillion dollar global settlement with not only the anaesthesiologist, but also the gastroenterologist owner of the facility. Our extensive experience in medical malpractice and in multidistrict litigation in the federal courts proved invaluable to the committee and to the state court, where consolidations of this sort are rare. We anticipate that the committee model used in this litigation will be a valuable resource for the New York state courts in the event of a similar multi-plaintiff action.

Ken Nolan and Jeanne O'Grady can be reached in our New York office at 212-661-0011.