Jury finds drugmakers liable in first hepatitis C trial

By Cara McCoy

Published Wednesday, May 5, 2010 | 3:32 p.m.

Updated Wednesday, May 5, 2010 | 6:20 p.m.

A jury found two companies that made and distributed the anesthetic propofol used at Desert Shadow Endoscopy Center liable on multiple counts Wednesday, awarding a Las Vegas couple more than $5 million in compensatory damages.

Jurors also determined that punitive damages were warranted against the drug companies, the amount of which will be determined in a second round of deliberations.

Henry Chanin, 62, sued Teva Parenteral Medicines Inc. and Baxter Healthcare Corp., the two companies that made and distributed, respectively, the anesthetic propofol used at Desert Shadow Endoscopy Center, where Chanin was infected with hepatitis C during a routine procedure.

He was among thousands who sued in the wake of an investigation by the Southern Nevada Health District that linked the outbreak to several Las Vegas endoscopy centers.

The jury awarded Chanin $3.25 million in compensatory damages. His wife, Lorraine, was awarded $1.85 million.

Punitive damages will be determined after the jury hears arguments Thursday afternoon.

The Chanins’ attorneys, Robert Eglet and Will Kemp, argued throughout the trial that the jumbo-sized vials of the drug led to reuse, causing contamination and infection. They also say the warnings on the vials themselves and on drug packaging inserts were inadequate.

In closing arguments, Eglet described the 50-mililiter vials of propofol as “weapons of mass infection.”

Neither company was found strictly liable for defective design; both were found liable for failure to warn and for breach of implied warranty of fitness for a particular purpose.

The companies were also found liable to Lorraine Chanin for loss of consortium.

The Chanins testified they had ceased having intimate relations for fear of possibly infecting Lorraine. Henry Chanin testified that although his hepatitis was controlled by a course of treatment similar to chemotherapy, there is a 5 percent chance the virus could again become active. He said he is no longer as active as he used to be, his stamina is reduced and he has joint pain as a result of treatment.

Hepatitis C can lead to liver disease, including cirrhosis or liver cancer.

In civil trials, six of eight jurors must agree. On Wednesday, not all jurors agreed on all points: when the jury was polled, two said the companies shouldn’t be responsible for punitive damages. One felt Baxter wasn’t responsible on some of the counts. Another said she agreed with the other jurors on all counts except for the amount to be awarded in compensatory damages.

“Clearly, all of the jurors, in one way or the other, found the drug companies were responsible on one of the three claims,” Eglet, who represents Henry Chanin, said during an impromptu news conference outside the courthouse after the verdict was read.

“It shows that we were right all along – that this whole catastrophe started with the drug companies. They literally set the trap – without them selling these vials that were too large to these endoscopy centers, there would have been no opportunity to multi-dose. And there would have been no opportunity for people to be infected,” he said.

Attorneys for the drug companies weren’t available after the proceedings. A call requesting comment wasn’t returned Wednesday evening.

Deliberations began late Friday and continued through early Wednesday afternoon.

During the trial, attorneys for Teva and Baxter said that although they sympathized with the Chanins, they weren’t responsible for the hepatitis infection. In closing arguments, attorney Mark Tully refuted claims that the drug companies put profits ahead of patient safety.

The warnings on the bottles are clear, Tully said. The vials were produced in different sizes to offer more choices to medical professionals, he said.

Henry Chanin is the headmaster at The Meadows School, a nonprofit, private school in the northwest valley that serves students from pre-kindergarten through 12th grade. Carolyn Goodman, the school’s president and founder and wife of Las Vegas Mayor Oscar Goodman, testified on Chanin’s behalf.

She said he was a private man, but his struggles with his health became evident. He told her about the infection after the outbreak made news headlines, she said.

About 50,000 people were notified they needed to undergo testing for hepatitis C, hepatitis B and HIV after the health district investigation.

The Chanins’ suit is the first to be heard by a jury. Portions of the lawsuit were settled before the trial began.

Eglet said his next case involving a hepatitis patient is set for trial in October.

The Chanins, whom he embraced as soon as District Judge Jessie Walsh dismissed the jury, are pleased with the verdict, Eglet said.

The Chanins were unavailable for comment, but Eglet said on their behalf that they believed justice was done.

“They’ve felt that they’ve gotten their day in court,” Eglet said. “What they’ve always wanted out of this was to make sure that this never happened to anyone else, to make sure that this case would change the way these drug companies do business with respect to the drug.”