AIDS Patient Starts New Court Battle

Five years ago, Channon Phipps, a hemophiliac believed to have contracted the AIDS virus from a tainted blood product, won a court battle to attend public school.

On Monday, the 16-year-old was back in Orange County Superior Court, this time seeking to prove allegations that Cutter Laboratories Inc. negligently failed to pasteurize the blood coagulant suspected of infecting him with acquired immune deficiency syndrome.

“I’m angry at them because they knew they were supposed to withdraw (the coagulant from the market) and they didn’t,” Channon said outside the courtroom. “It’s like they didn’t care.”

The attorney for the pharmaceutical company, however, told the jury in opening remarks that Channon had been infected before the AIDS virus was identified and before it was known that the disease could be transmitted by blood.

Though Channon won the right to attend public school in 1986, he caught too many illnesses at school and is now being tutored at home. His health has improved somewhat since he began taking the anti-AIDS drug AZT two years ago, but on Monday he was suffering from nausea and a runny nose.

Attorneys for both sides agreed that Channon should leave the courtroom before opening arguments began because they did not want to tell the jury of the prognosis for his illness with the boy present.

“I can’t say what I know his future is going to be if he’s sitting next to me,” said his lawyer, Merwin Auslander. “I’m sure he’s got hope that there’s going to be a cure.”

Channon’s aunt, Deborha Franckewitz, who has raised him since he was a year old, filed a lawsuit in 1986 against the University of California Board of Regents, a UC Irvine College of Medicine physician and Cutter Laboratories, alleging that the doctor prescribed the unpasteurized coagulant manufactured by Cutter from 1983 to 1984, when a treated coagulant was already being marketed by a competitor.

Franckewitz said she asked for the pasteurized product but was told that she must have Channon’s prescriptions filled at the UCI pharmacy, which had an exclusive contract with Cutter. Moreover, she said, on Oct. 31, 1983, Cutter recalled several vials of its coagulant because of possible AIDS contamination, but Channon was nonetheless given one of the vials a month later.

“We were never notified of the recall,” Franckewitz said.

The regents and the doctor settled the case out of court for an undisclosed sum in 1989, Franckewitz said. Cutter Laboratories offered the family a $15,000 settlement, which they refused, she said.

Cutter’s attorney, Duncan Barr, said the company had done everything it could to protect hemophiliacs and has successfully defended itself against four similar lawsuits in other states.

Channon’s family contends that the boy was infected with the virus about six to eight weeks before he developed his first AIDS-related symptoms in September, 1983. Cutter contends that Channon contracted the virus as early as 1981--two years before the pasteurized coagulant was even available in the United States.

Hemophilia is a rare, inherited blood disease whose victims do not produce the protein required for clotting. They are treated by injections of that protein, called Factor VIII, culled from the blood of thousands of donors and sold by Cutter under the brand name Koate.

It had been known for some time that Factor VIII could transmit viruses, particularly hepatitis, but it was not until 1981 that a German company developed a method for heating and pasteurizing blood that reduced the potential for viral infection, Auslander said. A competitor of Cutter introduced a pasteurized Factor VIII product in the United States in March, 1983, he told the jury.

Cutter continued to market its unpasteurized product, did not warn hemophiliacs of the danger of AIDS even after there was a strong suspicion that it was transmitted by blood, and failed to adequately screen blood donors to guard against infection, Auslander told the jury.

Barr told the jury that when news of the AIDS virus surfaced in 1982, the company began asking people in high-risk categories not to donate blood. But it was not until May, 1984, that the AIDS virus was identified and not until March, 1985, that a test was developed to screen blood donors for AIDS, he said.

In the meantime, Barr told the jury, the company followed all recommendations from the Food and Drug Administration, the Red Cross and blood banks.

“There is every likelihood that Channon Phipps was infected sometime in 1981 or 1982,” Barr said. “He may well have been infected before the word ‘AIDS’ ever passed anybody’s lips.”

Even if Channon did contract AIDS from a Cutter product--and he took Factor VIII made by other companies as well--there was no evidence of company wrongdoing, he said.

“My client did everything it could to prevent this terrible tragedy that has been visited on hemophiliacs,” Barr told the jury.

Outside the courtroom, Auslander said he would introduce evidence to show that Cutter scientists were testing pasteurization to eliminate hepatitis from their product by 1982.

He produced a memorandum dated Jan. 4, 1983, in which a Cutter doctor wrote that even without hard data, it would be logical to assume that heat-treated Factor VIII would be safer than, and as effective as, the non-pasteurized variety.

“Such a product should be made available to those whose life depends on it in as rapid a time frame as possible,” wrote the doctor, who is scheduled to testify today.