Infected haemophiliacs could pursue their cases in the US courts

Hong Kong haemophiliacs infected with HIV via contaminated blood products during the 1980s would struggle to take legal action locally but could sue for negligence in the US, experts believe.

Eric Cheung Tat-ming, an assistant professor with Hong Kong University's law faculty, said that as the incident happened a long time ago, it might be difficult for the victims to launch legal action against pharmaceutical firms due to time limitations under existing laws.

Under the Limitation Ordinance, a plaintiff can claim damages from personal injuries within three years - either from the date of the incident or from the point when they first became aware of their illness.

'Although the court has the discretionary power to extend the time limitation, it will be the main obstacle the victims have to face,' Professor Cheung said.

The South China Morning Post reported yesterday that Hong Kong haemophiliacs in the mid-1980s were forced to rely on HIV-contaminated blood-clotting medicine sold across the region by a US company - even while it marketed a newer, safer version elsewhere.

Cutter - a biological firm owned by the German pharmaceutical giant Bayer - sold its Factor V111 concentrate named Koate to Hong Kong public hospitals for 18 months after it started distributing a heat-treated version free of HIV in the US.

Hong Kong doctors had asked for the new products through Cutter's local distributor, Luen Chong Hong. But they were told that none was available.

Bayer said this week that Cutter had paid about US$300 million in the US as part of a total US$600 million settlement by blood product companies in 1997.

Hong Kong haemophiliacs could mount similar action, a US litigation lawyer said yesterday.

Michael Baum, who practises in Los Angeles, said Cutter had faced a problem in unloading its old stocks of the non heat-treated concentrate.

'There was an over production. The company had paid for the plasma and the stocks were in the warehouse and that was their problem. The company then tried to find a market,' he said.

Mr Baum, who has represented HIV-infected haemophiliacs in the US, said Cutter failed to act reasonably.

'By October 1984, it had been proven that heat-treating, and in particular Cutter's heat-treating, killed HIV. Thus, at least by then, it was clearly known to be unsafe to continue using non-heat treated products,' Mr Baum said.

'Instead of recommending to cease using non-heated products, Cutter and the other manufacturers did the opposite and did everything they could to find markets for their inventories of non-heated products. Hong Kong haemophiliacs were ... misinformed.' This misinformation could form the basis for pursuing lawsuits against the US manufacturers, Mr Baum said.