Friday, June 21, 2002
C.A. Rejects Manufacturing-Defect Finding in First Latex Glove Trial
Fourth District Panel Says It Was Reasonable for Maker to Weigh One Safety Consideration Against Another
By KENNETH OFGANG, Staff Writer/Appellate Courts
Evidence that a leading manufacturer of health care products could have done a better job of washing latex gloves, and thus reduced protein levels that have been linked to serious allergies suffered by thousands of workers in hospitals and medical offices, did not prove that the gloves were defectively manufactured, the Fourth District Court of Appeal ruled yesterday.
Div. One affirmed an order by San Diego Superior Court Judge William C. Pate, throwing out a jury verdict for close to $900,000 in the first latex glove products liability case to go to trial in California. Pate has been assigned by Chief Justice Ronald M. George as coordination judge to oversee more than 40 such cases from around the state.
There are several hundred cases pending throughout the United States, about two-thirds of them in federal courts and the rest in the courts of over 30 states.
The jurist granted Baxter Healthcare Corporation’s motion for judgment NOV in a suit brought by Christine McGinnis, a Stockton respiratory therapist whose doctors said she had contracted a life-threatening allergy from wearing natural rubber latex gloves.
Baxter is a major supplier of hospital medical products, and sold 50 percent of the natural rubber latex gloves used in the United States before spinning off the unit that made the gloves.
McGinnis, who wore 30 to 50 pairs of gloves per day, said she experienced a severe allergic reaction in November, 1995, while wearing gloves and was hospitalized in intensive care for six days. She later experienced over 35 allergic reactions to natural rubber products and had to quit work, she said.
Plaintiffs’ experts claim that 950,000 health care workers have been or may become sensitized to latex as a result of exposure to the protein in gloves. The allergic reaction has been said to range from a localized rash to systemic conditions such as hives, shortness of breath, and life threatening anaphylactic shock, and the experts claim that a simple 30-second process of washing the latex out of the gloves was known to the industry but was not utilized by Baxter until 1996.
But Justice Richard Huffman, writing yesterday for the appellate panel, said the court could not, as a matter of public policy, hold that Baxter’s failure to use the washing process rendered the gloves defective.
“…Baxter presented evidence that these steps might lead to defects in barrier protection such as pinholes, tearing, or a change in texture,” the justice explained. It was entirely reasonable, Huffman said, for Baxer to consider barrier protection issues before changing its manufacturing process.
Huffman also noted that the Food and Drug Administration did not require labeling of latex gloves for latex content until 1993, after Baxter had begun labeling them voluntarily, and that prior to 1998, the agency did not allow manufacturers to make comparisons of protein levels and had not adopted standards.
“[W]e believe that Plaintiff’s efforts are ineffective to show that the various…gloves that were manufactured precisely as intended, that complied with applicable governmental standards, and that fulfilled their primary barrier function, nevertheless have manufacturing defects...reflective of the state of scientific knowledge regarding latex protein levels of exposure available to the relevant participants in this health care product context,” the justice wrote.
The case is In re Coordinated Latex Glove Litigation, 02 S.O.S. 3105.
Copyright 2002, Metropolitan News Company