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Olympus Executives Plead the 5th

Three executives from Olympus Corp. repeatedly refused to answer questions during depositions in Tokyo on Nov. 30 and Dec. 1. in regards to the company's role in superbug outbreaks. But according to accusations in civil cases and in a federal investigation, Susumu Nishina told the U.S.-based managers of the company in 2013 not to issue warnings to hospitals and doctors despite early reports of scope-related infections from U.S., French and Dutch hospitals.

According to a story reported in the Los Angeles Times and Kaiser Health News, there are internal emails that are key evidence for a number of civil suits - at least 35 patients in American hospitals have died since 2013 after getting infections from Olympus duodenoscopes, which are commonly used lighted gastro-intestinal scopes sent down a patient's throat to look deep inside the body. It is used 700,000 times annually, but has been found to be extremely difficult to clean. This means infections from one patient can then be transferred to the next one.

Now 25 patients and families as well as the hospitals are suing Olympus for negligence, fraud and wrongful death. The emails could be the key to both ongoing civil cases and federal investigations. It's also worth noting that the duodenoscopes were recalled in January.

Pleading the 5th?

It's not unusual for corporate executives to plead the fifth in a civil lawsuit if there is a possibility of additional charges. Nishina as well as Hasao Yabe and Hiroki Miryama were said to be in on email discussions with U.S. managers of how to shape an official acknowledgement (or lack thereof) to news of the infections. Basically the decision was made to not actively inform customers in the U.S. using the scope because the risks were considered "acceptable," but U.S. managers could respond to inquiries from customers.

The upshot

Pleading the 5th Amendment may or may not incriminate the three Olympic executives, but it does prove that executives were aware that there was a problem and could have been proactive in preventing the spread of these infections. It also shows that there is concern about what aggressive prosecutors could do with any testimony offered in the depositions. Regardless, this non-admission could bode well for those looking for proper compensation from the company.

If you or a family member became ill after a duodenoscope procedure or injuring yourself using another faulty product, it would be wise to consult an attorney experienced in product liability to see if there is a case. While each case is unique, an attorney can often help navigate the complexities of cases like these.

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