The Wall Street Journal - 29 July 1996
Arnold Ceballos, Staff Reporter of The Wall Street Journal

In almost 30 lawsuits in state and federal courts around the country, medical workers who have used the gloves increasingly since the advent of AIDS are claiming that the companies should be held liable for allergic reactions. The cases aren't expected to go to trial for months.

The Food and Drug Administration has recognized since 1991 that some people have severe allergic reactions to proteins in latex products, and some have even died. At the time, the agency issued a medical alert, recommending that manufacturers reduce protein levels. Late last month, the FDA proposed a labeling system for latex products that would warn of possible allergic reactions. The agency estimates that only 1% of the population has such a sensitivity.

Latex, a natural substance that comes from tropical rubber trees, is used in many products, including basketballs, condoms and paint. But lawyers for the medical workers say their clients are required to wear protective gloves on the job; most of the gloves are made of latex.

Makers of the gloves defend their use and note that people who have allergic reactions can switch to gloves made from vinyl and other synthetic materials. "People are allergic to a variety of substances," including soap and perfume, said Deborah Spak, a spokeswoman for market leader Baxter Healthcare Corp., a Deerfield, Ill.-based unit of Baxter International Inc. that is a defendant in two dozen suits. That's why companies such as Baxter offer nonlatex alternatives, she said.

Other defendants include Johnson & Johnson, New Brunswick, N.J.; Ansell Inc., Eatontown, N.J.; Becton Dickinson & Co., Franklin Lakes, N.J.; and Safeskin Corp., San Diego.

The companies wouldn't comment specifically on the litigation, but Johnson & Johnson spokesman Robert Andrews said the gloves have been used for more than 20 years and there is "nothing better" to protect against infectious diseases. Since 1992, the federal government has required medical personnel to wear protective equipment to guard against blood-borne viruses such as hepatitis and HIV, the human immune deficiency virus. Ansell said the amount of allergy-producing substances in its gloves is among the lowest in the industry.

The Health Industry Manufacturers Association, a trade group in Washington, says some glove makers have reduced protein levels and are trying to help hospitals identify people who are allergic to latex.

In their suits, however, plaintiffs such as Margaret Williams, a former nurse, contend that the manufacturers were negligent in failing to reduce protein levels in the gloves, failed to warn users about possible allergic reactions, and fraudulently concealed information about the risks, among other claims. They are seeking a wide range of monetary damages.

Ms. Williams, who lives in New Market, Md., and is suing in federal court in Baltimore, alleges that her hands became irritated, her eyes got puffy and she began wheezing while wearing the gloves on the job in the mid-1980s. Thinking she might be reacting to hand lotion or even bad air, she kept working, she says. Her symptoms progressed, however, until she was forced to give up her career last year, she says. Now, she contends, she must avoid contact with such common products as balloons, toys and erasers.

Plaintiff lawyer David S. Shrager, who has three suits pending and plans to file as many as 10 more in the next month, says his clients had little choice but to use the gloves. Alternatives, he adds, weren't marketed as effectively as the latex products.

Medical studies show that 8% to 10% of health-care workers have allergic reactions to latex, ranging in severity from hives to the potentially fatal asthma-like condition known as anaphylactic shock, according to Jordan N. Fink, chief of allergy and immunology at the Medical College of Wisconsin in Milwaukee.

The FDA says there are no reported deaths from allergic reactions in people who wore latex gloves. But, it says, 16 spina bifida patients died in the late 1980s after being given enemas with latex-tipped catheters. The FDA notes that the tips are now made from silicone.

A California Court of Appeal dealt the latex-glove plaintiffs a setback in February, refusing to certify a lawsuit as a class action covering the state's medical workers who are allergic to latex. Like other courts around the country that have been throwing out class actions in mass tort cases, the California appellate court said there were too many differences in their situations to allow their case to proceed to a single trial.

Morton Friedman, a Sacramento lawyer who argued unsuccessfully for certification, says the two plaintiffs named in the case dropped their claims because they couldn't afford to pursue their cases individually.

But other plaintiff lawyers vow to keep up the fight. "It's going to be one of the big-time legal health-care issues of the '90s," predicted Mr. Shrager of the Philadelphia firm of Shrager, McDaid, Loftus, Flum & Spivey.

The FDA will solicit comments on its labeling proposal throughout the summer. But Robert Jenner, a Bethesda, Md., lawyer who is working with Mr. Shrager, says the proposal is "too little too late."

Damages Are Awarded

A jury awarded two former employees of General Dynamics Corp. $107.5 million in damages after finding that the aerospace company failed to honor an agreement guaranteeing the two partial ownership of a business they helped develop.

A Superior Court jury in Norwalk, Calif., on Friday awarded William B. Forti and Dolores Blanton $7.5 million in compensatory damages and $100 million in punitive damages. The jury ruled that General Dynamics was liable for fraud and breach of oral contract.

According to the suit, the two former employees made an oral agreement with General Dynamics in 1990 to start a new company called E-Metrics. The new company was to develop an advanced computer product called a neural network system that would emulate the way the brain processes information. General Dynamics was to contribute funding and technology, and Ms. Blanton and Mr. Forti, who worked at the company's missile plant in Pomona, Calif., were to receive an equity stake in E-Metrics, the suit claims.

When General Dynamics, based in Falls Church, Va., sold its air research defense systems unit to Hughes Aircraft in 1992, E-Metrics was included in the sale. The suit claims that the two former employees weren't compensated for their E-Metrics stake in the sale. Ms. Blanton and Mr. Forti subsequently were laid off following the Hughes acquisition.

During the trial, General Dynamics argued that it never agreed to grant the two employees an equity interest in E-Metrics. General Dynamics, which is expected to appeal the decision, couldn't be reached for comment.

"This is not a runaway result. This is an entirely just verdict," said Don Howarth, a lawyer representing the plaintiffs.

Lisa Bannon contributed to this article.

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