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Opening arguments begin in first hepatitis C case to reach trial

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Mona Shield Payne / Special to the Sun

Plaintiff’s attorney Robert Eglet shows a single-dose, 10-milliliter vial of propofol to the jury during his opening arguments in an endoscopy trial Monday, April 19, at the Regional Justice Center.

Updated Monday, April 19, 2010 | 6:41 p.m.

Endoscopy Opening Arguments

Attorney Mark Tully, representing drug companies, speaks with plaintiff's attorney Robert Eglet, right, during a break in the endoscopy trial on Monday, April 19, at the Regional Justice Center. Launch slideshow »

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The attorney representing a man suing drug companies in the first trial connected to the hepatitis C outbreak linked to Southern Nevada endoscopy centers told jurors Monday they should hold drug companies that manufactured and distributed large vials of the anesthetic propofol accountable.

“Drug companies are not allowed to endanger the public, and if they do, they must be held fully accountable and responsible,” Attorney Robert Eglet said in his opening statement. “Drug companies are required to put patient safety above profits.”

As for compensatory damages, Eglet, of the firm Mainor, Eglet & Cottle, suggested to the jury that $10 million was the right number for “full justice” to Henry Chanin, who is suing Teva Parenteral Medicines and Baxter Healthcare Corporation for product liability and negligence. Teva and Baxter manufactured and distributed the propofol used at the Desert Shadow Endoscopy Center, 4725 Burnham Ave., where Chanin contracted hepatitis C during a routine procedure in 2006.

Eglet told the jury that Chanin contracted hepatitis C from a contaminated vial of the anesthetic propofol during a colonoscopy. He said the jumbo size of the bottles of the drug, which were intended for prolonged anesthesia and not for the short procedures conducted at endoscopy centers, encouraged “double-dipping,” or using the same vial for multiple patients.

The vials used by the endoscopy centers linked to the outbreak contained five times the amount of the drug needed for one patient for a routine ambulatory procedure, he said.

The reuse of the vials led to contamination and infection, he said.

Mark Tully, who represents the drugmakers in the suit, told jurors in his opening statement they had been misled about the evidence in the case.

“Profits over patient safety is a blatant mischaracterization of the evidence,” he said.

He said the warning labels on the bottles are clear and consistent. He also said the small-size bottles were on the market years longer than the plaintiffs’ attorneys had said, including at the time when Chanin contracted hepatitis C.

From 1999 through 2006, 130,000,000 vials of propofol in various sizes were sold, he said. The small sizes were taken off the market in 2007 because they weren’t selling.

“Health professionals just weren’t interested in it,” he said.

Will Kemp, who represents Lorraine Chanin in the lawsuit, told jurors the warning labels on the vials and warnings given to health providers were inadequate.

“(Teva) knew that the warning they used was ambiguous and ineffective,” he said.

The jury will have to decide, among other aspects of the case, whether a better warning from the drug company would have made a difference.

Kemp said a version of propofol manufactured for use on animals offered veterinarians a better warning than the human-grade version offered to doctors. He pointed to outbreaks of hepatitis C prior to the outbreak in Southern Nevada, which he said drugmakers were aware of and should have informed medical professionals about.

Two days before Chanin underwent the colonoscopy in June 2006, he had a full blood screening done as part of a regular physical exam and tested negative for hepatitis C. By the end of July 2006, he was ill with hepatitis C symptoms and diagnosed shortly thereafter, Eglet said.

Click to enlarge photo

William Kemp, attorney for Lorraine Chanin, presents his opening arguments in an endoscopy trial Monday, April 19, at the Regional Justice Center.

He said the nurse who administered the propofol on the day of Chanin’s colonoscopy will testify that she likely used a 50-milliliter vial.

Chanin underwent 24 weeks of extensive treatments similar to chemotherapy to treat the disease, Eglet said, and still suffers from joint pain and other symptoms as a result of having contracted the disease.

Chanin is the headmaster at the Meadows School in Las Vegas.

About 50,000 people were notified they needed to undergo testing for hepatitis C, hepatitis B and HIV after an investigation in 2008 by the Southern Nevada Health District.

Chanin’s case is the first to be heard by a jury tied to the outbreak. Chanin and his wife, Lorraine, were among thousands who sued in the wake of the health district investigation. Portions of the Chanins’ lawsuit have been settled.

The attorneys’ statements to the jury came after District Court Judge Jessie Walsh gave jury instructions, which included instructions on drug product liability and design defects. Opening arguments will conclude Tuesday morning, then witness testimony is expected to begin.

A panel of 12 jurors, which includes four alternates, was seated Thursday after four days of jury selection.

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