Las Vegas Sun

March 29, 2024

courts:

Lawyers try to get hepatitis trials moved to Carson City

Defense attorneys say Desai can’t get a fair shake because of media coverage

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Dr. Dipak Desai, the majority owner of the Endoscopy Center of Southern Nevada, leaves a hearing at Las Vegas City Hall on March 3, 2008.

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A year ago Dr. Dipak Desai wasted little time hiring a well-connected public relations firm to help him drum up favorable publicity in a growing hepatitis scare linked to his endoscopy clinics.

Among other things, the R&R Partners spin machine placed a full page letter from Desai in the Las Vegas Review-Journal that attempted to minimize fallout from the life-threatening medical crisis.

But publicity is now the enemy of lawyers who are defending Desai’s Endoscopy Center of Southern Nevada in more than 400 malpractice lawsuits filed by thousands of former patients.

The lawyers filed court papers this week seeking to move the trials in 22 of those cases to Carson City, where media coverage of the outbreak has not been as comprehensive. The 22 cases, involving plaintiffs who allege lax clinic procedures caused them to be infected with the hepatitis C virus, are set for trials from October through 2011.

In their 52-page motion, endoscopy center attorneys argued that the defendants will be unable to get fair trials because of an “avalanche of negative and sensational media coverage that has been overwhelmingly negative towards the defendants.”

The lawyers said they analyzed hundreds of local newspaper stories and television reports on the hepatitis scare over the past year.

A survey by a sociologist the lawyers hired concluded that media reports have led to a “pervasive and embedded public bias” against the defendants, “giving them a scarlet letter by all within Clark County.”

“There is simply no way that potential jurors in Clark County ... can maintain an unbiased opinion,” the lawyers wrote. “The jurors in this case will be subject to strong peer pressure to punish the defendants and feel obligated to mete out justice in the form of financial sacrifice by the defendants.”

But attorneys for those suing Desai and the endoscopy center said they don’t share that opinion, and they plan to file court papers opposing a change of venue.

“Look at the O.J. Simpson case,” lead plaintiff lawyer Ed Bernstein said. “There was quite a bit more publicity in that case, and the trial proceeded with no problem.”

Bernstein questioned the defense’s motives in filing the motion.

“They weren’t afraid to hire R&R to control publicity, and now they’re hiding from the publicity,” he said. “They’re trying to have it both ways.”

Plaintiff lawyers want to take the depositions of two R&R employees who helped Desai with damage control efforts, but lawyers for the endoscopy center have moved to stop the depositions, arguing the work is protected under the attorney-client relationship.

At a court hearing on that subject Wednesday, plaintiff lawyers said the endoscopy center was “rumored” to have given R&R Partners a $2 million retainer for its work. They said R&R Partners played an instrumental role in what information the Clark County Health District made public early in the crisis.

But after the hearing, Pete Ernaut, a partner in the advertising firm, said R&R got some money for its efforts, but “nowhere near $2 million.” He said he did not know the exact amount.

“There was no contract and no agreement,” he said. “We did this as a favor to one of our partners, Jim King, who was a longtime friend of Dr. Desai’s, to help him through this crisis.

“Our major aim at the beginning was to help get this laid out in an orderly fashion so it didn’t create pandemonium.”

Ernaut said the company stepped away after it became clear the endoscopy center was going to face legal issues.

“Our relationship with them was pretty short-lived,” he said.

In their motion for a change of venue, the endoscopy center lawyers included other concerns they argued have harmed the ability of the defendants to get fair trials.

The massive media attention to the hepatitis crisis has caused the public to be wary of the health care industry in Las Vegas and poisoned the political climate against Desai and other doctors associated with his clinics, they wrote.

The lawyers also said they have detected racial prejudice against some of the doctors because of their Indian ethnicity.

But plaintiff attorney Will Kemp described the defense effort as an early act of desperation that has little chance of succeeding.

“This is a Hail Mary in the first half of the ballgame,” he said.

Plaintiff lawyers said a change of venue is not practical in these cases and would place a heavy financial and emotional burden on the plaintiffs, many of whom are elderly and undergoing treatment for hepatitis C.

The cost of moving the trials to Carson City — which would include travel expenses for all of the litigants, witnesses and judges — also would be enormous for the plaintiffs and the taxpayers, the lawyers said.

Gerald Gillock, another lawyer suing the endoscopy center, said the cases deserve to be tried in Las Vegas.

“The people of Las Vegas are the ones who have been injured,” he said. “I don’t think the people in Northern Nevada have the mind-set for this.”

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