Publications: Top 2002 Defense Wins

02/24/03

For more information on Kennedy v. Baxter Healthcare, No. 97, CV-1773 (D. Minn.), ranked as the one of the National Law Journal's Top 2002 Defense Verdicts, please click the Related Files link.

No 'heavy science' in latex glove case

Case Type: products liability

Case: Kennedy v. Baxter Healthcare, No. 97, CV-1773 (D. Minn.)

Plaintiff's Attorneys: Thomas C. Atmore and Edward W. Gale of the St. Paul office of Minneapolis' Leonard, O'Brien, Wilford, Spencer & Gale; and Leslie J. Bryan and Ralph I. Knowles Jr. of Atlanta's Doffermyre, Shields, Canfield, Knowles & Devine

Defense Attorneys: Michael J. Philippi of Chicago's Ungaretti & Harris; John A. Rothstein of Milwaukee's Quarles & Brady; and Diane Sullivan of the Philadelphia office of Dechert

Jury Verdict: for the defense

Jurors were instructed not to handle their pets, work in their gardens or mow their lawns before coming to court to hear Mary Beth Kennedy testify about the debilitating effects of her latex allergy.

Kennedy, a former nurse who sued glove maker Baxter Healthcare Corp., appeared in court only on the day she testified. She claimed her reaction to latex had become so severe that she was a virtual prisoner in her sanitized home.

She alleged Baxter's gloves were defective and that the company had failed to warn about their risks. Her attorneys asked for $5 million for pain, suffering and lost wages. The St. Paul, Minn., federal jury that sat through five weeks of testimony found no defects and, after two hours of deliberations, awarded nothing to Kennedy, who was allergic to dozens of other substances in addition to latex.

The June 2002 defense win came in the first latex glove allergy case to be tried in federal court. Kennedy's case, one of more than 600 in federal multidistrict litigation in the Eastern District of Pennsylvania, had sped to trial because her attorneys claimed her allergies had put her life at risk.

Baxter had previously settled about 300 cases, gone to trial in five others and is a party in 200 to 300 more, said defense attorney Michael J. Philippi.

Roughly a dozen glove cases have gone to trial in state courts with defense victories edging out plaintiffs' verdicts.

The defense team in the Kennedy case employed a trial strategy that did not contest whether the plaintiff had a latex allergy but argued that the gloves were not defective simply because a user suffered an adverse reaction. "We didn't try a heavy science case on purpose," Philippi said. He also emphasized that Kennedy's allergic symptoms began before she ever used latex gloves and continued after she stopped wearing them.

Despite the loss in federal court, plaintiffs continue to try to finger latex glove manufacturers. The cases consolidated in multidistrict litigation for discovery are expected to be returned to the appropriate federal courts this spring and then head to trial.

Edward Gale, who represented Kennedy, said that despite the defense verdict, "we continue to believe that these cases have merit and look forward to future trials." He is an attorney with Leonard, O'Brien, Wilford, Spencer & Gale in St. Paul.