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King Co. judge grants new trial for family of man killed by superbug tied to Olympus scope

By John Knicely
By John Knicely

The legal fight has been revived over a deadly superbug tied to scopes used at Virginia Mason Hospital in Seattle.

A King County judge ruled the scope's maker, Olympus, didn't properly disclose evidence.  On Tuesday, the judge granted a new trial for the family of Rick Bigler, who died from the superbug at Virginia Mason in 2013.

In November, a jury ordered Olympus to pay the Bigler family $1 million.  But on Tuesday, the judge ruled Olympus violated discovery rules by hiding witnesses and documents.

David Beninger, of Luvera Law Firm in Seattle, said late in the two and a half month trial, Olympus brought up crucial witnesses who were not disclosed.  Those witnesses claimed the scopes were tested in Japan.

“It was one of the most shocking trial moments,” said Beninger.

Because of the late discovery, Beninger said they didn't have time to verify information buried in untranslated Japanese documents.  After the trial, he said his investigation found the testimony wasn't accurate.

“We learned the studies, in fact, were not good for them,” he said.  “The studies that were done informed them they should have told the FDA in full. And it led right to our theory that they were putting sales before safety.”

The judge ruled this week that Olympus must pay $250,000 to the Bigler family and cover all the legal expenses for the new trial.

An Olympus spokesperson told KIRO 7 they will appeal.  In a statement added these points in rebuttal:

  • "We believe we were compliant with Washington discovery rules."
  • "This device remains the preferred choice of physicians and hospitals around the world."
  • "Mr. Beninger possessed original Japanese versions of the documents he claims were 'hidden.'"

Virginia Mason is not being sued, and is in fact part of the lawsuit against Olympus. The judge ruled that they can be part of the new trial as well.

KIRO 7 anchor John Knicely asked Beninger how the Bigler family has reacted.

“It's bittersweet,” he said.  “They got victimized again. so it's been hard.  They're doing this for other people. This won't bring Rick back, but it may safeguard products and practices so it doesn't happen again and that's what gives them strength.”

Full statement from Olympus:

"Olympus is appealing the recent ruling for a new trial in the Bigler case in Washington. We believe we were compliant with the Washington discovery rules and that the issues in question will be favorably resolved in the appeals process. What is most important is that at the end of a full and fair trial lasting two months, the jury rightly found the Olympus TJF-Q180V duodenoscope design was not defective. This device remains the preferred choice of physicians and hospitals around the world.

Mr. Beninger possessed original Japanese language versions of the very documents he claims were "hidden." Additionally, we know that Plaintiff's theory of the case – that the TJFQ180V scope was defective - is now contradicted by Virginia Mason's own internal data, information the court determined was improperly and intentionally withheld from Olympus until late into the trial."

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