Manufacturer’s escape from liability for toxic Sargenti paste blamed on legal malpractice of plaintiff’s former counsel; successor counsel settles with dentist for $1,000,000.00; attorney defendant settles legal malpractice action for another $437,500.00
The plaintiff, age twenty-seven in 1984, underwent several endodontic (root-canal) procedures by her general dentist using the controversial filling material variously called Sargenti paste, N2 and RC2B. The drug has never been approved by the FDA nor the Council on Dental Therapeutics of the ADA, largely because it contains the highly toxic paraformaldehyde and lead and has never been tested for use in humans.
Tissue destruction, mummification and a compromise of the local tissue’s immune system capabilities results when the drug or its vapors come in contact with bone. The plaintiff’s immune system became so compromised that she developed a fulminating Actinomycosis infection which resulted in the loss of half of her lower jaw, more than forty surgeries, and medical expenses over $300,000.
The plaintiff’s initial lawsuit was against her general dentist. During the pendency of that lawsuit, the plaintiff changed counsel and retained the defendant lawyer and her firm. Seven months into this representation, the statute of limitation for products liability against the drug manufacturer expired. After the statute of limitation period expired, the plaintiff discharged defendant counsel and retained new counsel who settled her dental malpractice claim for $1,000,000. The plaintiff then sued defendant counsel and firm for legal malpractice, alleging the defendant failed to recognize the liability of the manufacturer and protect her from the expiration of the statute of limitation.
The drug was manufactured by Benito Ciccione, a New York pharmacist operating as Elbee Chemists, and was distributed throughout the United States by Ciccione’s marketing company, Available Products, Inc. The pharmacist, pharmacy and distributor were covered by one policy of liability insurance with one million dollar limits. Co-counsel for plaintiff, Edwin J. Zinman, had previously obtained a jury verdict against these entities, including punitive damages, on the same issues in a San Francisco, California case. Although the plaintiff would have had to overcome a $1 million set-off if the case had proceeded to trial, a $437,500 settlement was reached.
