Syringe Maker Fights Class-Action Designation

Deanna Boyd, Star-Telegram

Attorneys for a syringe manufacturing company argued before the 2nd Court of Appeals on Tuesday that a Fort Worth nurse's lawsuit over the safety of their product should not be given class-action status.

Les Fagen, an attorney representing Becton Dickinson and Co., argued that the circumstances of the estimated 150,000 health-care workers such a suit could affect are unique and the defense has a right to argue the credibility of each claim.

The lawsuit, which names Joan Usrey as lead plaintiff, alleges that conventional syringes are hazardous and seeks compensation for health-care workers who were accidentally stuck by used needles, requiring testing and counseling.

Becton representatives said their products are safe if properly disposed of and that the company is the leader in developing syringes with safety features.

Fagen asked the three-judge panel to reverse state District Judge Bob McGrath's January ruling to make the suit class-action, a decision the attorney contends was based on only five representative cases provided by the plaintiffs.

In some cases that a class-action suit would include, no safer alternative was available for the syringe needed or the procedure being done, Fagen argued. In others, the negligence of the health-care worker or someone else contributed to the accidental sticking, he said.

Fagen said trying the suit as class-action "will give plaintiffs a free ride in proving these claims."

David Keltner, a Fort Worth attorney representing Usrey, said all health-care workers need to know whether they have been infected with a blood-borne pathogen after an accidental sticking. Keltner said winning a class-action suit would simply put that cost on the syringe manufacturing companies that made that testing necessary.

"What we're after here is testing," Keltner said.

Becton has 70 percent of the conventional syringe market, and about 20 percent belongs to Sherwood Medical Co., the other defendant in the case.

Keltner said if the plaintiffs win the class-action lawsuit, a questionnaire will be sent to the affected health-care workers. If the defense can raise questions of negligence in particular cases, those will be separated, he said.

"The defendants are fully protected on this," Keltner said.

Usrey, a registered nurse, punctured her finger in March 1998 as she closed a plastic container of used syringes. Usrey had just medicated a patient suffering from pneumonia, a urinary tract infection, a fractured neck and a bed sore.

Also named as a plaintiff in the lawsuit is Sue Wang, a Pasadena nurse who has since left the field.

The court didn't indicate when it would rule.

Copyright 2000 Star-Telegram, Inc.
Record Number: 11009394