September 13, 2004

COSTA RICANS SEEK REDRESS IN CONNECTICUT
Mass tort action blames GE for radiation deaths

By Thomas B. Scheffey, The Connecticut Law Tribune

The New Haven firm of Stratton Faxon filed a mass tort action late last month against Fairfield-based General Electric Co. on behalf of 100 Costa Rican citizens allegedly killed or maimed by a defectively calibrated radiation treatment machine in 1996.

The ambitious action, however, faces potential legal hurdles over the statute of limitations, and an expected defense that Connecticut is an "inconvenient forum" for GE and the matter should instead be tried in Costa Rica.

According to the plaintiffs' 245-page complaint, the Alcyon II Rotational Cobalt Therapy Unit was installed at the Hospital San Juan de Dios. A company called Nirvana de Moravia, S.A., was GE's agent in Costa Rica from 1996 to the present, the suit alleges. In June of 1996, Nirvana determined the machine needed $140,000 in repairs, and GE Medical Systems dispatched employee Edward Jessilonis to Costa Rica to oversee the project.

Between Aug. 26, and Sept. 29, 1996, when the machine was taken out of service, approximately 109 patients were overexposed to cobalt radiation, but were not told of that fact "by anyone" until newspaper articles exposed the situation, the complaint alleges. The media, the hospital and the Costa Rican courts blamed supervisory physician Dr. Juan Cabezas Solera, who signed off on GE and Jessilonis's work, then left the country for the month when the injuries occurred.

Solera was later indicted and convicted of manslaughter. But despite the highly-publicized scandal, GE and Jessilonis "were never mentioned as a possible cause" of the plaintiffs' injuries, the complaint claims.

The plaintiffs say they weren't told of GE Medical's involvement until informed by a Costa Rican lawyer who had received notice about the conduct of GE and Jessilonis in late 2001 from Arthur E. Ballen, a Spanish-speaking personal injury attorney.

The complaint states that it is being filed within two years of the plaintiffs' learning the overexposure was "not caused by Dr. Solera, but may in fact have been related to the conduct of the Defendants herein." The suit alleges negligence, gross negligence, strict products liability and fraud, among other claims.

CONFLICTING PRECEDENCE

Ballen, who is of counsel at New York's Speiser Krause Nolan & Granito, confirmed that he was one of the lawyers investigating the case in Costa Rica, but is not involved in the litigation, in which, he said, the plaintiffs have steep challenges to overcome.

"I understand that 85 percent of the people have died. Who's going to testify?" he asked.

In an interview, Stratton Faxon partners Michael Stratton and Joel Faxon said they anticipate a defense objection on grounds of "forum non conveniens" -- an argument other Connecticut defendants have used with success in similar litigation, including United Technologies Corp. in a 2001 state Supreme Court decision, Durkin v. Intevac.

In that products liability case, manufacturers located primarily in Connecticut and California wanted to litigate in Queensland, Australia, where 18 soldiers were killed allegedly due to defective night vision glasses in a helicopter exercise. The estates of the soldiers were represented by Koskoff, Koskoff & Bieder lawyers, which then included both Stratton and Faxon. Mark R. Kravitz, then of Wiggin & Dana and now a U.S. District Court judge, led the defense team, which won on grounds of the difficulty of mounting a defense in Connecticut, since most of the evidence and witnesses remained in Australia beyond the reach of a Connecticut subpoena.

But Durkin isn't the last word, said Faxon. "There is some recent precedent out of the Second Circuit in a 2001 case called Irigorri v. United Technologies. You have the Australian case, but Irigorri says it is possible to maintain a case in Connecticut where you have a Connecticut manufacturer."

In that case, the federal appeals court reversed U.S. District Judge Janet B. Arterton's dismissal of the suit on forum non conveniens grounds. "It is not a correct understanding of the rule to accord deference only when the suit is brought in the plaintiff's home district," the Second Circuit wrote. "Rather, the court must consider a plaintiff's likely motivations in light of all the relevant indications."

Said Stratton, "Our feeling is that, because GE is headquartered here in Connecticut, and since you have design issues and manufacturing issues and production issues, that [material] can easily be obtained and discussed in the state of Connecticut."

Katherine Oberlies O'Leary is GE's counsel for litigation and legal policy in the company's Fairfield headquarters. She said trial counsel had not been chosen as of Sept. 7, but noted, "This was fully litigated in Costa Rica and GE was found to be not responsible." Furthermore, a currently pending state case filed in Anne Arundel County, Md., has been largely dismissed, with only the forum non conveniens issue outstanding, she said.

In the Costa Rican case, fault was attributed to the doctor who calibrated the machine, and not to the repair work, O'Leary said. She added that she anticipates the Connecticut federal action will be dismissed as res judicata or on collateral estoppel grounds, since the prior court cases "were completely parallel."

In response, Faxon said the Maryland action "is about to be withdrawn," and that the Connecticut products liability act has a more favorable statute of limitations. The Costa Rican trial was "purely criminal," he said, and should not preclude the federal civil case.