A zipped file containing many key US legal depositions from expert witnesses and other documents used to help win haemophilia contaminated blood cases in America has been submitted to the UK Infected Blood Inquiry chaired by Sir Brian Langstaff. This was instigated on the instructions of UK litigant Carol Grayson to her lawyers, Leeds based solicitors’ firm, Milners.
Grayson and her (late) husband Peter Longstaff who was infected with HIV, hepatitis B and C and exposed to variant CJD through factor concentrate treatment initiated the UK legal case in America in 2003 by making contact with San Francisco law firm LCHB (Leif, Cabraser, Heimann and Bernstein) after consulting with US haemophilia campaigners.
Longstaff, a severe haemophiliac with less than 1% clotting factor was given imported US factor concentrates to treat his blood clotting disorder from the early 1970s after the UK failed to become self-sufficient in its own blood products and has never achieved that goal to this day. Plasma for factor concentrates was sourced from “high-risk” donors. This included prisoners from Arkansas and Louisiana state penitentiaries who were known to be beaten and tortured, “skid-row” donors, those from Central American countries such as Belize, Nicaragua, Costa Rica and including the island of Haiti. Gay donors were also targeted for their “hepatitis rich” blood which was used in research and to develop the hepatitis B vaccine… Incredibly any surplus plasma from the gay donors exposed to hepatis B was used to top up the plasma pools which could be as high as 60,000 donors.
Documents retrieved years later showed that Longstaff was part of controversial treatment trials which included US factor concentrates in 1973 at Treloar College, a school set up in Hampshire, England, to educate children with disabilities. His younger brother Stephen, also a haemophiliac that attended Treloar died of AIDS in 1986. As well as being guinea pigs in treatment trials, a number of former pupils alleged physical and sexual abuse at the college. Many haemophiliacs are now dead from HIV and hepatitis C related health problems after being infected through their American treatment.
Simon Birch, currently Data Protection Officer at Treloar wrote to Grayson after she applied for treatment records stating,
We wish you all the very best as you endeavour to uncover the truth about the causes of your husband’s and brother-in-law’s contamination. Our heart goes out to all the families of all the 72 young haemophiliacs treated at the centre who died as a result of this scandal and I genuinely hope that all who were involved in the catastrophic decision making that was undoubtedly the cause are called to account.
In order to pursue a legal case in the US, a meeting for haemophilia clients and relatives was set up by LCHB at Claridges in London back in 2003. The firm agreed to take on further cases highlighted by Grayson and Longstaff with additional meetings held in Manchester and Edinburgh.
In 2003, the BBC reported,
“Thousands of haemophiliacs have filed a lawsuit in the US against four companies for allegedly exposing them to the HIV virus by selling products made with contaminated blood.
The lawsuit alleges the companies continued distributing the blood-clotting products in Asia and Latin America in the 1980s, despite having stopped selling them in the US because of the known risk of passing on HIV and hepatitis C.
The four companies named are: Bayer Corporation, Baxter Healthcare Corporation, Armour Pharmaceutical Company and Alpha Therapeutic Corporation.
The lawsuit alleges that they purchased plasma from “the highest-risk populations, including prisoners, intravenous drug users and blood centres targeting promiscuous urban gays” and that they failed to exclude donors with a history of viral hepatitis
The lawsuit was filed less than two weeks after the New York Times accused Bayer of selling old stock of the medicine abroad, while marketing a newer, safer product in the United States.”
Longstaff also received US treatment that should have been subject to a product recall as it included donors from the prison plasma centre at Arkansas during a period when it was closed down on the grounds of safety.
In order to esure as many haemophiliacs and their families as possible could participate in the litigation (providing they could produce the relevant treatment batch numbers and medical records) Grayson and Longtaff organized through their then lawyers Anderson Eden for a notice to be put in the press. They also had articles published via the UK Haemophilia Society Bulletin, took part in radio and TV interviews and released information via the Macfarlane Trust newsletter. The Trust was set up to provide financial assistance to haemophiliacs infected with HIV and their families and was supposedly established for life as part of the 1991 HIV haemophilia litigation under Justice Ognal. Recently however, the Trust was allegedly scrapped illegally and replaced by the English Infected Blood Support Scheme (EIBBS) without consulting with the longest standing campaigners as promised.
The case for haemophiliacs given US blood products was always deemed the strongest due to the high-risk, sourcing of plasma and the dumping of dangerous treatment on UK haemophiliacs. The case for those infected through UK plasma was put at only a 5% chance of winning by lawyers in legal documents in 199o.
However in a bizarre twist specifically related to those that had received US factor concentrates, a lawyer admitted in writing in 1990 to his colleagues that he was concerned that they had not sufficiently examined some crucial evidence pertaining to imported American treatment. This was essential in order to give claimants the best possible chance of winning their cases against UK authorities deemed as the first line of protection regarding a duty of care. The lawyer acknowledged solicitors were running out of time and wrote the following in December 1990,
This note evidences a radical change in my perception of the plaintiff’s prospect of success on establising breach of duty in negligence and, in so far as it is relevant Wednesbury unreasonableness. At the consultation held at 10th October 1990, I assessed the Plaintiff’s prospects of establishing common law breach of duty at no higher than the litigation risk which I put at 25%. I also advised that in terms of Wednesbury unreasonableness the plaintiffs prospects of success were so small as to defy sensible quantification.The purpose of this note is to explain why I am now of the view that the plaintiffs prospects of success have SIGNIFICANTLY IMPROVED both on breach of duty in negligence and Wednesbury unreasonableness and the consequential and favourable implications for causation.
He went on to say,
I am alive to what will be discussed in the course of the Consultation later today having had a telephone call from Michael at 00.45 this morning. Given the work that has been put into the preparation of the plaintiffs case by all counsel and the Steering Group I hesitate to inflict yet another note not least because there is rarely sufficient time to properly consider any note circulated immediately prior to or in the course of a Consultation. That said for reasons, which will become obvious, it is my duty to do so.
The solicitor then outlined in a document of numerous pages, the key evidence that had been omitted. This escalation in the prospect of winning and grounds for the change of opinion were never relayed to clients at that time.
A further solicitors’s note was discovered by Grayson years later in legal offices in Newcastle which stated, “I can no longer lie to my clients”!
Since that time period campaigners have themselves accessed a lot more evidence with regard to safety violations in the collection of US plasma which ought to have been sought at the time of the UK litigation.
In an e-mail to solicitor Ben Harrison dated September 4th 2019 Grayson wrote regarding the US depositions obtained from her former American lawyers LCHB,
Please send the US LCHB documents off today to the Inquiry in my name (as Pete’s living representative who inherited his case as his widow) a case we initiated with US lawyers LCHB many years ago on the back of Pete’s legal aid funding which we then opened up to several hundred other haemophiliacs who then joined our solicitor Denis Whalley (who was later struck off).
The Inquiry has now received the zipped file of relevant documents.
Fellow campaigner Colette Wintle, a female with a bleeding disorder infected with hepatitis C also instructed Milners to contact LCHB regarding her own case.
The US cases for UK haemophiliacs initiated by Grayson and Longstaff were sucessfully AUDITED by US lawyers as legal letters show and ACCEPTED by the US pharmaceutical companies with a token settlement which included a silence clause. The cases was finally closed to all UK haemophiliacs in 2009 however it kept open the possibility to sue UK authorities who by their own documents highlighted that they were well aware of both the high–risk sourcing of US plasma and the increased risks from imported treatment. Safety warnings to recall the US treatment and take it off the shelves were repeatedly ignored.
The cases filed by UK haemophiliacs in America were referred back to the UK courts (to fight for full compensation) on the grounds of “forum non conveniens” (not the right venue) and preceded by many years the recent contaminated blood cases filed by Collins Law solicitors of Watford now in the High Court. The cases back from the US are a continuation of the case started by LCHB and this is a separate case to the Collins Law litigation which is currently stayed during the course of the Infected Blood Inquiry.
The former LCHB cases are not dependent on the outcome of the Inquiry, depositions which we now possess have been used already to WIN cases in the US. The case here is even more serious due to the dumping of dirty treatment on the UK after it was deemed too dangerous to use in the US.
In Longstaff’s case he received US prison blood (some containing an HIV infected donor) after a plasma programme was closed down regarding gross safety violations. As documentary film-maker Kelly Duda (Factor 8: The Arkansas Prison Blood scandal) highlighted to Longstaff’s then QC, Stephen Grimes,
“The prison system remained unconstitutional in May 1980 when for 3 days Peter Longstaff infused several vials of Koate, the brand name of Cutter’s factor concentrate to stop a bleeding episode. He had no idea when he took his medicine from Lot no …. (stated) that it was made with the plasma of 297 inmates from Arkansas and an undetermined number of convicts from Avon Park, Florida.”
John Adervont a former inspector, a former Inspector and retired Director of Blood Center Licensing for the FDA remembered catching inmates performing phlebotomies at the Arkansas prison. Bill Douglas a former Arkansas inmate infected with hepatitis C, who sold plasma regularly at the time Longstaff infused Cutter …. stated, “They didn’t care. If you could crawl to get there you were able to give blood.”
“In July 1982, operators were forced to pay a $250,000 settlement after products made from tainted plasma were shipped to Europe. Two international recalls of contaminated plasma in the US, Canada, Spain, Italy, Switzerland and Japan were unsuccessful. The following year, the FDA shut down the operation and revoked its license when it was discovered that an inmate clerk had allowed diseased prisoners to donate. But after a six-month suspension, the center was up and running again with the full approval of federal regulators and the Clinton state leadership”.
“Given the above information, and the fact that even before AIDS, the hepatitis rate among prisoners was estimated to be 30 to 60 percent higher than that of the outside population, it becomes clear that Peter Longstaff ard others like him should not have been advised to take medication made from sources like this.”
On February 9th 2006, Lord Alf Morris of Manchester then Minister for Disabilities followed up on the Arkansas prison blood evidence after Longstaff’s batch numbers were verified by US lawyers and the plasma companies. The following is taken from Hansard,
HIV: Contaminated Blood Products
What representations they have received from Ms Carol Grayson concerning the death of her husband, a haemophilia patient, from HIV infection by contaminated National Health Service blood donors at Arkansas State Penitentiary; and what response they propose to make to these representations. [HL3584]
The Minister of State, Department of Health (Lord Warner): We have received several recent communications from Ms Carol Grayson about the import of plasma from the United States. We will be responding shortly. I will insure that a copy of the letter from Ms Grayson dated 14 January is sent to my noble friend.
Lord Warner had earlier been highlighted by Grayson, Longstaff and Wintle for misleading parliament on the Eire settlement. Lord Archer who held a private Inquiry in 2007 in the UK into how haemophiliacs came to be infected with Contaminated Blood had recommended that the British government echo Grayson’s initiative from 1996 for “compensation on a parity with Eire.” In order to deny haemophiliacs the same level of compensation Warner falsely claimed the case in Eore was different suggesting Ireland had admitted legal liability with regard to haemophilia cases when it hadn’t. This was challenged in a Judicial Review won in 2010 by haemophiliac Andrew March using Grayson and Wintle’s evidence first sourced in 2004.
Going back to 2006, Warner failed to address both why Longstaff received US prison blood in the first place and secondly why this treatment wasn’t recalled in the UK when the Arkansas prison plasma programme was closed down on the grounds of gross safety violations.
Now with the US legal depositions from international experts that helped win American cases regarding the same treatment and batch numbers used on UK haemophiliacs and knowledge that key evidence was omitted from the 1991 litigation it is imperative that the former LCHB cases are now settled by the British government as a matter of urgency. As Liliana Segura highlighted in her 2017 article looking at the history of Arkansas State Penitentiary where Longstaff’s treatment originated,
In the 1969 expose, “Accomplices to the Crime: The Arkansas Prison Scandal,” former prison superintendent Tom Murton described the system as one of modern-day slavery, built upon “an ancient philosophy of retribution, corruption, exploitation, sadism and brutality.” Rather than pay civilian guards, the state relied on armed “trusties,” who violently enforced the state-ordered regimen of hard labor on fellow prisoners. Men were towed to the fields like cattle, harvesting crops under close supervision. Many compared it to a Nazi concentration camp.
Whippings were routine and legal in those years – and torture was an open secret. Especially notorious was an instrument called the “Tucker Telephone,” facilitated by so-called prison doctors at a penitentiary of the same name. As Murton described it, “An undressed inmate was strapped to the treatment table at Tucker Hospital while electrodes were attached to his big toe and to his penis. The crank was then turned, sending an electrical charge into his body. In ‘long distance calls,’ several charges were inflicted – of a duration designed to stop just short of the inmate’s fainting.”
In 1970, a federal judge declared the whole Arkansas prison system unconstitutional, deeming it a “dark and evil world.”
The problems within Arkansas State Penitentiary were made public in the media and the horrors of the system even inspired a film “Brubaker” starring Robert Redford based on Thomas Murton. Arkansas prison continues to this day to be regarded as problematic and was hardly a safe and ethical place for British authorities to source treatment for the haemophilia community.
In the UK, victims continue to die every few days. Although the Infected Blood Inquiry is a step in the right direction giving victims some hope it will expose a long and complicated history of wrongdoing, bereaved relatives continue to exist on the breadline with surviving haemophiliacs and their families still denied the full and proper compensation they truly deserve.
Law suit for infected blood 2003 (Guardian, June 4th 2003)
Haemophilia patients launch action against Bayer over contaminated blood products (BMJ 2003 326(7402) :1286
How money and politics contaminated Arkansas’s prison plasma program.
ARKANSAS JUSTICE: RACISM, TORTURE, AND A BOTCHED EXECUTION
Carol Anne Grayson is an independent writer/researcher on global health/human rights/WOT and is Executive Producer of the Oscar nominated, Incident in New Baghdad. She was a Registered Mental Nurse with a Masters in Gender Culture and Development. Carol was awarded the ESRC, Michael Young Prize for Research 2009, and the COTT ‘Action = Life’ Human Rights Award’ for “upholding truth and justice”. She is also a survivor of US “collateral damage”.