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Attorney Joseph H. Saunders on Toxic Contamination and Medical Device Law

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Pinellas Park, FLJoe Saunders was on the road when LawyersandSettlements reached him. Normally we don't approve of phoning while driving, but since his hands-free Bluetooth device was working, we stretched the point. Besides, as he said, "You lucked out catching me between depositions, so we'd better do this now!"

Saunders recently filed a class action against Raytheon Corporation for a toxic waste plume that has been contaminating ground water in St. Petersburg. He was glad to talk about it.

LawyersandSettlements (LAS): What areas of law do you specialize in—and can you outline the Raytheon case?

Joseph H. Saunders (JHS): The only thing we do is contingent fee liability for things like toxic exposure, pharmaceuticals, medical devices, and some medical negligence. It's all plaintiff-side, what I call consumer justice work.

The Raytheon case is mainly a class action on behalf of homeowners in the Azalea neighborhood of St. Petersburg, but there likely will be some individual cases as well on behalf of commercial property owners in the area. The state Department of Environmental Protection has a map showing the contaminant plume going about a mile and half in all directions from the Raytheon plant. Real estate values will be affected well beyond that, though, due to the spectre, the stigma of contamination extending beyond the actual plume. Real estate shoppers are likely to avoid buying there based on the stigma of being near a toxic area.

The main part of the suit is for diminution of property values. We're also asking for Raytheon to set up a property monitoring program for 20 years, as well as for tests and monitoring of individuals for toxic chemicals in their tissues or blood. There are about 900-1000 homes in the surrounding area, so the class is maybe 1500-2000 people.

LAS: Where does the case stand now?

JHS: Well, it was just filed last week, so we haven't had a response from Raytheon yet. I've never had a company yet that just confessed, so as in virtually every other case I've ever filed in my career, we expect them to deny everything. That's what lawsuits are about—we'll go through discovery, depositions, what happened, when did it happen, how did it happen, and what's going to be done to clean it up.

LAS: Is cleaning up the site part of remedy sought in the suit?

JHS: Well, the court system isn't very good for these kinds of things; they're not going to order Raytheon to clean up the area, they can't administer that. The state Department of Environmental Regulation is involved and I hope they'll do a better job on this than they have so far. They've known about this spill for 15 years, although it's not clear whether they knew it was migrating into the groundwater.

But this is Florida. In Florida you can expect that if you spill some contaminant on the ground, it will migrate and the rainwater will carry it into the ground water. It's hard to imagine why the state and the county would not clean it up.

I think the state will make Raytheon clean it up. That wouldn't necessarily remove the stigma on the real estate, of course—that will take years. There are some commercial properties, there's also a park and a baseball field and a soccer field directly opposite the plant, and immediately behind is a bicycle trail that lots of people use, then there are homes surrounding it; it's basically a residential neighborhood.

There had been manufacturing in that area since the 1950s. In Raytheon's case, they're military contractors, and the chemicals involved were solvents used during the manufacture of electronic components. There are offices there too, it's still an active office for Raytheon. I don't think they're using those chemicals any more, but they still have company offices there.

LAS: You also do a lot of medical device cases. How has the Supreme Court decision in Riegel v. Medtronic, which pre-empted state tort cases for medical devices that had received pre-market approval from the FDA, affected that?

JHS: The Supreme Court has said that for Class 3 medical devices we can longer argue design defects, but I believe that we can still argue manufacturing defects and violation of FDA requirements; we just can't claim that they were designed wrong. Class 1 devices are things like tongue depressors. Class 2 devices are things like the Kugel mesh patch, which were fast-track approved without as much detail as a full pre-market approval process. I believe that Riegel v. Medtronic applies only to Class 3 devices that went through the full PMA process.

So you don't think that the pre-emption can extend beyond Class 3 devices?

JHS: Yes, I agree with that. I don't think there's any basis to apply it to Class 2 devices; they're treated totally differently. There's probably a better possibility that they can apply that standard to drug labelling than to Class 2 devices. But then again, Congress could pass a bill that would overrule Riegel. If we get a Democratic president next year, Riegel might be history. They don't have the votes now to get that kind of legislation through.

I think there were some hearings just starting up recently about drug labelling; Dennis Quaid was going to testify about his children being injured by a heparin overdose. The issue there was that the labelling on the bottles with ten times the correct dosage was confusing. But medical device liability is a risky proposition for lawyers; we front all the money and costs and if we lose on pre-emption, that's not good for us or our clients.

I've kind of got my hands full right now between Raytheon and Kugel mesh cases and Medtronic Sprint Fidelis cases. The Sprint Fidelis leads are definitely Class 3 devices, but I think there's a manufacturing defects case there. That's my take on it, anyway; judges have been known to disagree with me."

Joseph H. Saunders is a 1975 graduate of Lone Mountain College (San Francisco, CA) and received a JD from the University of San Francisco in 1981. After serving six years as counsel for Pinellas County, Florida, he founded Saunders and Walker, PA, which he says "fulfills a personal philosophic goal to provide aggressive, quality representation and seek fair compensation for individuals and their families who have suffered injury or death at the hands of insurance companies, large corporations, medical providers or governmental entities.

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