HCW awarded $1 million in latex liability trial
Verdict could set precedent
A hospital radiologist who developed severe allergies from latex gloves has won a $1 million jury award in the first major latex product liability case in the United States to go to trial. Legal experts say the verdict could set a precedent for similar outcomes in hundreds of additional pending lawsuits.
The Wisconsin jury voted 12-2 (two alternate jurors were allowed to help decide the case) earlier this year to award Linda Green $34,000 for past medical expenses, $42,000 for future medical expenses, $90,000 in lost earnings, $250,000 for lost future potential earnings, and $584,000 for past and future pain, suffering, and disability. The landmark decision found that the plaintiff was exposed to a "defective and unreasonably dangerous" product.
Green testified that she had worked as a radiologist for 13 years, changing gloves 20 to 40 times a day. She became latex-sensitive in 1989. Green said she was forced to quit her job because of anaphylactic reactions to the latex in gloves manufactured by British medical device firm Smith & Nephew PLC, which phased out its glove-making division in 1995.
"Glove companies have taken the extreme hard-line position that denies there is any problem with these gloves, and they refuse to acknowledge that high-protein, high-allergen powdered gloves pose any increased risk to anybody. That's what they argued in this case," says Green's attorney, Mark Young, JD, partner in the Milwaukee law firm Habush, Habush, Davis and Rottier in Milwaukee.
Young, whose firm has a number of health care worker lawsuits pending against several glove-makers, says manufacturers continue to insist their products are safe despite warnings issued in recent years by the U.S. Food and Drug Administration, the National Institute for Occupational Safety and Health, and the American College of Allergy, Asthma, and Immunology. (See Hospital Employee Health, January 1997, pp. 5-7; September 1997, pp. 97-101; December 1997, pp. 138-140.)
"We're very pleased that the jury agreed with our arguments," Young says. "Many latex-allergic people go through the experience of not being believed, or having people think that their problem can't be so severe. Obviously, the jury could see otherwise."
But Donald R. Peterson, JD, attorney for Smith & Nephew, says the defense questioned whether Green really was allergic to latex, based on a history of seeking medical care for unrelated reasons. In addition, he maintains that the decision was swayed by the court's failure to instruct the jury properly.
"Our thrust was that the gloves were not unreasonably dangerous or defective, as those words are defined in Wisconsin, but the court changed the jury's instructions from what is standard," he says. "Ordinarily, the language says a product is not unreasonably dangerous or defective if it is fit for its ordinary purpose, but the court took out the words 'fit for its ordinary purpose' in the jury's instructions, so the jury didn't hear that."
Peterson says this "confused" the jury, and he plans to file an appeal based on that. Nevertheless, does he think the verdict will send a message to glove manufacturers? "I hope not," he says.
Defense argues strict liability theory
It is significant that the plaintiff's case was pursued on a strict liability theory rather than negligence. While negligence focuses on conduct, such as the conduct of the glove manufacturer in this case, the strict liability theory focuses on the hazards or dangerousness of a product. Most states recognize that a manufacturer can be responsible for harm caused by a product if it can be shown that the product presents an unreasonable danger, even if the manufacturer has no knowledge of it.
"In this case, where [Green] had early latex sensitization, we did not feel that negligence was an appropriate theory because even our own experts would acknowledge that it wasn't until 1989 or 1990 that there was enough knowledge about [the dangers of latex exposure]," Young explains. "So we couldn't focus on the conduct of the manufacturer, but instead the defective nature of the product, because they were powdered high-allergen gloves."
Lauren S. Antonino, JD, an attorney with Meadows, Ichter & Trigg in Atlanta and an expert on latex allergy litigation, says the verdict was "remarkable" in large part because it was won on a strict liability theory. The argument generally does not appeal to juries, and manufacturers dislike it as well.
"To win, all you have to prove was that the product was defective, which means it was unreasonably dangerous, more dangerous than it should have been, and that it could have been safer," Antonino says. "It means that you can still have a latex glove that delivers good barrier protection, good fit, and all the qualities that medical professionals and patients want, but it doesn't have to be extremely highly allergenic."
On the other hand, the negligence argument is a fault-based concept, and "most juries don't want to give a verdict unless there is fault or moral wrongdoing," she notes.
Because the plaintiff in this case was latex-sensitized in the late 1980s, the manufacturer could have argued that at that time it wasn't fully aware of the problems associated with high-allergen gloves, so the jury might not have found the glove-maker morally wrong in terms of negligence; nonetheless, its product was found defective.
"This was a test case," Antonino says, "where both sides were well-versed on latex allergy issues. It was the first real case that was fully developed and went to trial, and it gave us an idea that these cases are winnable. It shows that when all the facts are laid out and shown to a jury of ordinary people, they can see quite clearly that these gloves were not as safe as they should be, that they could be safer, that latex allergy is a very real and crippling disease, and that people who are severely afflicted by it have to make dramatic alterations in the entire way they conduct their life. The jury sees that, feels for them, and will compensate them accordingly."
Litigation could result in safer gloves
The verdict could prompt other manufacturers to produce safer latex gloves, and in fact litigation pressure already has resulted in manufacturing changes, she says.
Young says his firm has several dozen suits pending against Smith & Nephew as well as against one of the largest U.S. latex glove manufacturers, Allegiance Corp. in McGaw Park, IL.
Company spokeswoman Donna Gaidamak says Allegiance is looking at each of those suits on a "case-by-case" basis.
"No one here doubts that people can be allergic to latex," she says. "We take the issue of latex allergy very seriously. If someone is allergic to latex, we don't want them to use latex gloves at all."
Over the past few years, the company changed its manufacturing processes to bring down the protein content of latex gloves and has instituted a glove management program "to work with people in hospitals to help them use the right gloves for the right reason," she says. "Customers certainly need to be educated. If they want gloves that are powder-free, we offer that for them. We'll do what they want."
Antonino says hospitals have both moral and legal obligations to provide workers with safer gloves. One issue is the question of liability under the Americans with Disabilities Act, which requires employers to make reasonable accommodations for occupationally caused disabilities. Another involves workers' compensation costs.
"It's going to be in hospitals' economic best interest to convert to nonlatex or low-allergen gloves because they will reduce their workers' comp costs substantially. They will have less people out of work, less down time, less need to bring in substitutes, and less need for retraining," she says.
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