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Judge Orders New Hearing in UVM Negligence Lawsuit

The University of Vermont likely knew years before a triple-fatal 2001 car crash involving a drug-research subject that the experimental medication could make study participants drowsy, a judge determined in ordering a hearing in the case reopened.

Judge Thomas Devine's decision, filed this week in Orleans Superior Court in Newport, is a victory for the family of Kevin Baker, 44, of Coventry, who was among three IBM employees killed Nov. 29, 2001, in a head-on collision in Johnson. Baker's survivors are suing UVM on allegations a research team studying buprenorphine, a drug to treat opiate addicts, was negligent in allowing participant Theodore Pecor of Johnson to drive home after taking a dose.

Pecor fell asleep at the wheel, crossed into oncoming traffic on Vermont 15 and smashed into the car carrying Baker and two colleagues, who were headed to their jobs.

University attorneys argued earlier this year the case should be dismissed because researchers were not at fault. During that proceeding lawyers said UVM's 10-year study had continued "without incident," according to court papers.

But after the dismissal hearing closed in late March, a former study subject, Cathy Morse of Fairfield, read about the case in The Burlington Free Press and came forward to say she repeatedly told researchers in 1998 that buprenorphine made her "groggy" while she drove home after treatment.

Baker family attorneys then sought to reopen the dismissal hearing and introduce Morse's testimony. UVM opposed the request as irrelevant and unrelated, and lawyers filed copious briefs over the summer. Devine issued a six-page decision Monday saying the hearing should resume with Morse's information.

"To the extent defendants had notice of unexpected agonist effects occurring past the normal observation period ... such testimony's relevance cannot be denied," the judge wrote. Agonist effects are essentially side-effects, including sleepiness, according to court papers.

UVM attorney Jeff Nolan was unavailable for an interview Tuesday but sent an e-mail reacting to the decision.

"Judge Devine carefully and thoughtfully addressed the issue before the court," he wrote. "We are satisfied with the court's ruling, and look forward to the decision on the university's pending motion to dismiss the case."

Baker counsel David J. Williams declined to comment.

Buprenorphine is an alternative to methadone and is used to help people overcome addictions to "opioid" narcotics such as heroin or the painkiller oxycodone. The drug won federal approval for treating addictions in 2002.

Devine's ruling echoes some of the university's concerns -- particularly regarding potential differences between the addictions and treatment experiences of Morse and Pecor, and the potential for cost and delay in reconvening the hearing -- and says there is no guarantee a jury will hear Morse's testimony. Still, the judge determined her information is "worth sharing" with medical experts who can relate them to the Baker case.

Baker's family is seeking an unspecified amount of damages, court costs and legal fees. The university denies wrongdoing, defends the study as responsibly managed and argues blame for the crash rests solely with Pecor, according to court filings.

The crash occurred after Pecor received his first dose of buprenorphine at a Burlington 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.

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. The Corrections Department did not list him as an inmate Tuesday.

Devine's decision encourages the lawyers to meet and establish a schedule for recommencing the hearing. A jury trial would occur months or more later.

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