Attorney seeking $1 billion in hepatitis C case

By Cara McCoy

Published Thursday, May 6, 2010 | 3:49 p.m.

Updated Thursday, May 6, 2010 | 5:30 p.m.

The attorney for the lead plaintiff in the case against two drug companies found liable for a Las Vegas man’s hepatitis C infection asked jurors Thursday to award more than $1 billion in punitive damages, saying their verdict should make a statement against putting corporate profits ahead of patient safety.

Robert Eglet, who represents 62-year-old Henry Chanin, called the amount “the most historically large sum of money ever asked for in any courthouse anywhere in the state of Nevada.” He asked jurors to assign $616,204,974 in punitive damages to Teva Parenteral Medicines Inc., and $419,855,051 to Baxter Healthcare Corp., to send the companies a message and force them to change their practices in manufacturing and distributing the drug propofol, an anesthetic.

The punitive phase of deliberations began late Thursday after arguments from attorneys on both sides. Jurors will resume deliberations Friday morning.

On Wednesday, the jury found the company liable on multiple counts and awarded more than $5 million in compensatory damages. Jurors are determining the amount of punitive damages during this second round of deliberations.

Despite the hepatitis C outbreak in Las Vegas — which was identified during a 2008 investigation by the Southern Nevada Health District — and subsequent outbreaks in other communities, the drug companies did nothing to change their ways, Eglet said in arguments Thursday.

The companies made a combined $13.5 billion in 2009, Eglet said. He compared the companies’ profits to the average person’s annual salary, about $42,600, and asked jurors to rely on logic when calculating the punitive amount appropriate for companies that earn billions.

Jurors were told that a corporation must be treated the same way as a person. Eglet argued that taking several weeks of pay — for a person, or in this case, for a company — would be a logical punishment.

The figures he asked for are equivalent to four weeks worth of the companies’ profits for last year, he said.

At a minimum, jurors should award a combined sum of $500 million, which would be the equivalent of two weeks of the companies’ profits, he argued. He said the verdict needed to be loud enough to be heard across the state, the nation and across the ocean in Israel, at company headquarters.

“You can be the eight people who stop this from ever happening again — you have the power as this jury. Or, you can let this go on … and have more outbreaks,” Eglet said, adding that “nothing less than these type of numbers, when you’re talking about two companies that made a combined 13.5 billion in a year, nothing less than these type of numbers is going to deter them.”

Chanin was infected with hepatitis C in 2006 during a routine procedure at Desert Shadow Endoscopy Clinic. He and his wife, Lorraine, were among thousands who sued in the wake of the outbreak. The Chanins’ case is the first to be heard by a jury.

Mark Tully, who represents the drug companies, asked jurors not to be influenced by passion in awarding punitive damages. He said the companies’ actions are “not the type of conduct that warrants large punitive damages either to punish or to deter.”

“You’ve already sent a first very important message. You’ve told Teva and Baxter that they’ve caused more than $5 million in harm,” Tully said.

He told the jury the $13.5 billion figure Eglet cited was incorrect, saying that Teva USA and Teva Parenteral Medicines are different companies. He also suggested that sales figures pertaining to propofol would be more appropriate to assess than overall sales figures.

“Not only is it the wrong company and the wrong measure, it suggests there is a formula (for determining punitive damages),” he said of Eglet’s arguments.

He said jurors should consider different levels of responsibility for Teva and Baxter, saying that Baxter stopped dealing with propofol in 2007.

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 they disagreed with awarding punitive damages; another felt Baxter wasn’t liable on some counts; another disagreed with the dollar figure of compensatory damages.

Tully reminded the jurors about the points on which they had differing opinions.

“Whatever that judgment is, we will hear you loud and clear,” he said.

Eglet and Will Kemp, who represents Lorraine Chanin in the suit, argued throughout the trial that the jumbo-sized vials of the drug led to reuse, causing contamination and infection. They also said the warnings on the vials themselves and on drug packaging inserts were inadequate.

“They will change these labels and they won’t put 50 milliliter vials in endoscopy centers anymore. But only, only if you make them hear you,” he said in closing.

Teva spokeswoman Denise Bradley said in a statement the company plans to appeal.

“Teva did not do anything to cause Mr. Chanin's hepatitis C. Propofol is one of the most widely used anesthetics in the world and when used properly, it is safe and effective. Propofol is an FDA-approved drug, with comprehensive labeling specifically stating that it is for use on a single patient only and that strict aseptic technique must be followed at all times,” she said. “If Mr. Chanin contracted hepatitis C as alleged in this case, it could only have been the result of product misuse and a failure to follow the product's warnings and labeling.

“Unfortunately, the jury was not allowed to hear most of the relevant evidence about what actually happened in this case. We expect this verdict will be successfully appealed.”

Jurors determined Wednesday that neither company was 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. Jurors awarded Henry Chanin $3.25 million and Lorraine Chanin $1.85 million in compensatory damages. Portions of the lawsuit, including those that named the medical professionals involved in the procedure, were settled before the trial.

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

After the health district investigation, thousands of residents were urged to undergo testing for infectious diseases, including hepatitis C, AIDS and HIV.