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October 1, 2014

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Nevada Health Crisis:

Desai, colleagues may take the Fifth, stalling lawsuits for years

Image

Steve Marcus

Dr. Dipak Desai, center, owned the Endoscopy Center of Southern Nevada, where dangerous injection practices have led to eight confirmed cases of hepatitis C.

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As if the massive case weren’t complex enough, the first lawsuits over the hepatitis outbreak that health officials linked to the Endoscopy Center of Southern Nevada are facing another major obstacle.

Dr. Dipak Desai and other physicians from the clinics are threatening to assert their Fifth Amendment rights against self-incrimination if forced to submit to the early depositions sought by attorneys for the plaintiffs.

In most civil cases, each side is able to grill the other under oath in preparation for trial. But in this case, Desai and his colleagues are facing the prospect of criminal charges, and they don’t want to risk making a statement in a deposition that could help authorities with the criminal investigations.

Attorneys for Desai and the others are hoping to persuade District Judge Allan Earl, who is coordinating the early phase of the lawsuits, to put off their depositions until the criminal investigations are concluded. That could be a long time from now and could prevent people who allege they were infected with hepatitis at the centers from obtaining information crucial to their lawsuits.

The delay tactics have enraged attorneys for the plaintiffs, many of whom are senior citizens.

“If this thing drags out for years the way the defendants would like to see it drag out, many of these victims won’t be around,” attorney Robert Eglet said. “I’ve got clients who’ve been told they have months to live. We’re going to try and push this through so these people can get their day in court.”

Eglet and the other plaintiffs’ attorneys defeated an initial effort by the doctors’ attorneys to push the target date for the trials to 2011. This week the two sides are settling for a ruling that everyone needs to be ready for trial by Sept. 21, 2009.

“Everyone” includes 93 lawyers from 34 firms — at last count. These figures change almost daily, prompting Will Kemp, an attorney for the plaintiffs, to predict that the number of lawyers in the case eventually will triple. At a hearing Thursday, Las Vegas lawyer Floyd Hale, appointed as a special master to help Earl oversee the start-up phase of the litigation, is expected to approve the trial date and the ground rules for moving the lawsuits through the court system. The final word rests with Earl.

Managing the case isn’t going to be easy.

“This is the worst medical calamity we’ve ever had in Southern Nevada. Everybody understands that,” Ed Bernstein, one of the attorneys for the plaintiffs, said. “But we’re going to be working though a maze of obstacles in the near future.”

Just communicating with all of the lawyers is a difficult task.

On the plaintiffs’ side, attorneys are representing eight people who the Clark County Health District determined contracted the hepatitis C virus while undergoing procedures at the Endoscopy Center or its associated clinics. Attorneys also are representing thousands of other patients who weren’t infected, but who have filed a class-action lawsuit against the clinics for putting them at risk for infection.

On the defense side, attorneys are representing the chief defendant, the Endoscopy Center, which has been accused of infecting patients by reusing vials and syringes. Attorneys also are defending Desai and his colleagues.

Dozens more lawyers will soon be added on both sides when about 850 additional patients claiming to be infected at Desai’s clinics file lawsuits and the high-powered pharmaceutical and distribution companies that dealt with the Endoscopy Center crank up their defense. Those companies were recently added to the list of defendants in the current suits.

Jeff German is the Sun’s senior investigative reporter.

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