Hepatitis C trials unlikely to be moved

By Jeff German

Wednesday, June 10, 2009 | 2 a.m.

When defense lawyers sought to move the upcoming trials over the 2008 hepatitis scare to Carson City two months ago, a plaintiffs attorney likened the legal strategy to a “Hail Mary in the first half of the ballgame.”

Indeed, the legal defense team for Dr. Dipak Desai and the Endoscopy Center of Southern Nevada is likely to have a hard time persuading District Judge Elizabeth Gonzalez to burden the ill-equipped Carson City court system with one of the largest-ever medical malpractice litigations in the state. At last count there were 449 separate cases involving thousands of former endoscopy center patients.

The first of 22 cases scheduled for trial is to get under way Oct. 19, and Gonzalez has set a June 30 hearing on the change-of-venue motion.

In recent legal papers the lead plaintiffs lawyers hammered home their argument that moving the cases out of Southern Nevada is a bad idea. The defendants say it is necessary because of the “avalanche of negative and sensational media coverage.”

It’s generally a tough sell for any defendant to get a change of venue. In most cases, courts have concluded that jurors, even if they’ve seen negative reports in the media about a defendant, still can reach an impartial verdict based on the evidence presented during the trial.

That’s what happened in the O.J. Simpson robbery case in Las Vegas and years earlier in the much-publicized murder case of Priscilla Ford, who intentionally drove her Lincoln Continental down a crowded Reno sidewalk, killing six people and injuring 23.

For Desai and his co-defendants, moving the case to Carson City looks like it could be more problematic than in any other case in Nevada’s history.

For starters, the plaintiffs lawyers argued in court papers, a change of venue has the potential to undo, or force a big-time “restructuring” of, everything the court system here has accomplished over the past 15 months in coordinating the massive litigation. The litigation became so big and complex that a judge and a special master had to be assigned to oversee all of the evidence gathering.

Whether the Carson City courts can even handle the litigation is another question. If they can’t, the change in venue would not be fair to either side.

According to statistics provided by the plaintiffs lawyers, Carson City, with a population of about 60,000, has two judges who processed fewer than 2,000 civil cases last year. On the other hand, Clark County, with roughly 2 million people, has 37 judges who handled 81,000 civil cases.

And unlike Carson City, Clark County has an online filing and case-tracking system that has helped open the lines of communication between the attorneys and the judges in this cumbersome litigation.

But the biggest reason for keeping the cases in Southern Nevada, where the alleged medical misconduct occurred, is to avoid further burdening the former endoscopy patients, many of whom are elderly and dealing with the debilitating effects of being infected with the potentially deadly hepatitis C virus.

Unlike the wealthy Desai and some of his co-defendants, the majority of the plaintiffs can’t afford to try their cases 500 miles from home, the plaintiffs lawyers argued. The average trial is expected to last about a month.

Why should the former patients be forced to spend thousands of dollars putting themselves, their lawyers and their witnesses up in Carson City?

Why should they even be put in a position that would allow the defendants to disrupt their lives one more time?