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Crash Victim’s Family Accuses UVM of Research Cover-up

By Adam Silverman, Free Press Staff Writer
August 5, 2007

Lawyers for the family of a man killed in a 2001 car crash are accusing the University of Vermont of covering up flaws in a drug-research study, triggering a chain of events that led to the triple-fatal accident.

The allegation is the latest twist in a lawsuit that relatives of Kevin Baker, 44, of Coventry filed against UVM in 2003. The family accuses the university and a research team studying a drug to treat opiate addicts of negligence by allowing a participant to drive home after taking the experimental medication.

The drug, according to the lawsuit, caused the man, Theodore Pecor of Johnson, to fall asleep at the wheel, drift into oncoming traffic on Vermont 15 in Johnson and slam into a car carrying three men to their jobs at IBM. All three were killed; Pecor, then a 25-year-old Johnson State College student, survived.

Baker's family is seeking an unspecified amount of damages, court costs and legal fees. The university denies wrongdoing, defends the study, conducted by its Substance Abuse Treatment Center, as being managed responsibly, and argues the drug did not contribute to the crash. UVM attorneys, saying the accusations lack merit, have asked a judge in Newport, where the case is pending, to throw out the lawsuit before it proceeds to a jury trial.

Only after court hearings earlier this year on the dismissal request did the allegations of a cover-up emerge.

Previously, the Baker estate had argued UVM should be liable simply because its researchers violated their duty to keep study participants off the road when they might be suffering effects of the drug, such as drowsiness. This spring another research subject came forward and said the university already knew the medication caused sleepiness, because she warned them three years before the crash.

"I had complained about the same darn thing," the former research subject, Cathy Morse, 47, of Fairfield said in an interview last week. "I should have been listened to."

In a flurry of back-and-forth court filings since June 1, attorneys for Baker and UVM have debated the relevance of Morse's claims.

The Baker family contends the information proves the university knew the drug could cause drowsiness, and therefore research staff should have taken steps to prevent subjects from driving.

UVM has laid blame for the crash solely on Pecor, arguing he consumed illegal drugs after leaving the treatment center and had a motive to claim, falsely, that he hadn't because he was facing criminal charges related to the crash. University attorneys argue Morse's allegations are irrelevant in the lawsuit because she represents just one of more than 900 research subjects, and because her dosage was notably higher than Pecor's.

Calling Morse an "apparently dissatisfied" former study participant, UVM attorney Jeff Nolan wrote in one recent court filing, "There is no basis on which to assume that Ms. Morse's circumstances could be extrapolated in any reliable way to Mr. Pecor's circumstances."

Hidden evidence?

The drug in question is buprenorphine, an alternative to methadone used to help people overcome addictions to so-called "opioid" narcotics such as heroin or the painkiller oxycodone. The federal Food and Drug Administration ruled in 2002 that doctors could prescribe buprenorphine to treat such addictions.

Morse had taken part in an ongoing UVM study of the drug from 1994 to 2002, according to a written, sworn statement filed with the court. In 1998 she was placed on a program in which she received high doses twice a week, according to court papers prepared by Baker attorneys David Sleigh and David Williams. The treatment made her drowsy, and she frequently reported the side-effect to researchers, who noted her complaints in official logs, according to court papers.

"I begged and begged these guys at UVM to give me less bupe because I was falling asleep on my way home each time, and they would not because it would mess up their data," Morse wrote in an e-mail to Sleigh and Williams this spring. "I continued to beg, and they finally decreased it a bit but not enough to do any good."

Sleigh and Williams contend UVM's researchers hid that information from internal oversight boards and federal regulators, because reporting Morse's symptoms would jeopardize the study's outcome and possibly the drug's approval.

What's more, the Baker attorneys argue in court papers, if the university had followed appropriate research protocol and reported Morse's claims, the study might have been required "to take every reasonable measure to prevent ... research subjects from being involved in a drowsy driving accident."

UVM contends those allegations are "speculative" and "baseless," designed to divert attention from the Baker lawsuit to an unrelated, immaterial and untrue accusation: that the university intentionally withheld documents relating to Morse from Baker family attorneys.

"Plaintiff's accusations of willful suppression of evidence and misrepresentation are spurious, reckless, and entitled to no weight whatsoever," UVM attorney Nolan wrote in court papers.

New hearing sought

Morse said she felt compelled to contact Sleigh and Williams after she read an article in The Burlington Free Press about UVM's efforts to dismiss the case. She took particular exception to reports that a medical expert working for the university testified buprenorphine cannot have sedative effects on people already addicted to opioids.

For Morse, who said she was dependent on morphine and pain pills at the time of her study participation, buprenorphine seemed directly responsible for her drowsiness, she said. Sometimes she grew so tired, she said, that her head would snap up as she drove home from treatment, and she'd realize she had momentarily dozed off.

"I immediately had to pull over and get out of the car and walk around," Morse said.

UVM argues Morse's experience doesn't relate to the Baker case because at no time did university attorneys say opioid addicts were immune from possible sedative effects of buprenorphine, only that drowsiness is unlikely to result from a dose as low as the one Pecor received. Accordingly, Morse's allegations fail to undermine the university's defense, its attorneys contend.

The crash occurred Nov. 29, 2001, after Pecor had received his first dose of buprenorphine at a Burlington drug-treatment clinic, waited two hours, passed a sobriety test and was allowed to drive home. Killed in the crash were Baker, Lyman Dezotelle Jr., 44, of Derby Line, and Dean Fountain, 69, of Newport.

In a sworn 2003 deposition with Sleigh and Williams, Pecor said he took heroin the night before the crash but consumed no drugs except the UVM-administered buprenorphine the day of the accident. He said he felt fine when he left the clinic but began to feel tired by the time he reached Jeffersonville. He decided to press on to Johnson, though, because it was so close, he said. That's his last recollection until after the crash, Pecor told the lawyers.

Pecor, 30, pleaded no contest in 2004 to three counts of grossly negligent operation with death resulting and was sentenced to three to 15 years in prison. He remains incarcerated at the Lee Adjustment Center in Beattyville, Ky., with other inmates Vermont sends out of state to alleviate prison crowding.

The current legal wrangling involves a request by Sleigh and Williams to reopen the hearing on UVM's dismissal request so they can introduce evidence relating to Morse. The university opposes that move and has until midmonth to file legal briefs on the matter.

After that, District Judge Thomas Devine will rule on whether to allow the additional evidence, and finally, he'll announce a decision on whether to dismiss the case or keep it moving toward a jury trial.

Morse said she remains unsure whether her complaints in 1998 could have prevented the car crash three years later, but she wishes researchers had taken her more seriously.

"It could have been a possibility," she said. "It sure wouldn't have hurt."

Contact Adam Silverman at 660-1854 or asilverm@bfp.burlingtonfreepress.com