Grilled About Deadly Superbug Outbreaks, Execs At Scope Maker Olympus Takes Fifth

The three executives were recently deposed at the U.S. Embassy in Tokyo by lawyers representing Virginal Medical Center in Seattle.

This article first appeared on Kaiser Health News on December 19, 2016.

By Chad Terhune

Three senior executives at scope maker Olympus Corp., which is under federal investigation for its role in superbug outbreaks, repeatedly invoked their Fifth Amendment right against self-incrimination when questioned recently about internal company emails.

The Tokyo executives declined to answer questions about the correspondence during two days of depositions Nov. 30 and Dec. 1 in a civil case against Olympus, according to lawyers representing a Seattle hospital and a patient’s widow.

The company emails, first reported by Kaiser Health News and the Los Angeles Times, are key evidence in several pending civil suits against Olympus and could be relevant to the ongoing federal probe.

They show that Susumu Nishina, one of the three executives deposed, told the company’s U.S. managers in February 2013 not to issue a broad warning to American hospitals despite reports of scope-related infections in Dutch, French and U.S. hospitals.

At least 35 patients in American hospitals have died since 2013 after developing infections tied to tainted Olympus duodenoscopes — flexible, lighted tubes used to peer deep inside the body. More than 25 patients and families, including the Seattle-area widow, have sued Olympus for wrongful death, negligence or fraud.

Legal experts said it’s not uncommon for corporate executives to exercise their constitutional right against self-incrimination in civil lawsuits when separate criminal charges are possible. While not indicative of guilt, that legal move does indicate concern about what prosecutors could do with any testimony, the experts said.

“There is a real danger you end up saying something an aggressive prosecutor would seize on,” said Patrick Cotter, a former federal prosecutor and white-collar criminal defense attorney at law firm Greensfelder, Hemker & Gale in Chicago. He isn’t involved in the Olympus cases.

In addition to Nishina, the company’s chief manager for market quality administration at the Tokyo headquarters, the other two executives who were questioned were Hisao Yabe and Hiroki Moriyama, court records show. Yabe appears to be the highest ranking official among the three, serving as an executive officer in charge of the medical manufacturing improvement division, according to the company’s website.