Mona Shield Payne/Special to the Sun
Published Friday, May 7, 2010 | 12:12 p.m.
Updated Friday, May 7, 2010 | 7:36 p.m.
- Attorney seeking $1 billion in hepatitis C case (5-6-2010)
- Jury finds drugmakers liable in first hepatitis C trial (5-5-2010)
- Jurors to resume hepatitis C deliberations Wednesday (5-4-2010)
- Deliberations continue in first hepatitis C case to reach trial (5-3-2010)
- Jury deliberates in first hepatitis C case to reach trial (4-30-2010)
- Expert: Hepatitis C victim suffered multi-million dollar damages (4-27-2010)
- Man recounts hepatitis C’s effect on health, family (4-26-2010)
- Opening arguments begin in first hepatitis C case to reach trial (4-19-2010)
- Jurors chosen in first hepatitis C case to reach trial (4-15-2010)
- Jury selection begins in first hepatitis C case to reach trial (4-12-2010)
- Insurance company wants cap on payments in hepatitis C cases (2-10-2010)
- Proposed settlements at issue in endoscopy case (1-5-2010)
- Thoroughness, not haste, key in probe of clinic’s insurance billing practices (1-2-2010)
For Henry and Lorraine Chanin, the lawsuit they filed after Henry contracted hepatitis C during a colonoscopy was never about the money. Instead, they say it’s been about getting two giant companies to change their ways.
“Five-hundred million dollars is an unimaginable sum of money for an individual,” Henry Chanin said Friday after a jury awarded him and his wife half a billion dollars in punitive damages.
“This was to tell the … two companies that made a combined $13 or $14 billion dollars that it wasn’t going to be pocket change for them to make right what happened here in Las Vegas. It’s exactly what was needed.”
The Chanins sued Teva Parenteral Medicines Inc. and Baxter Healthcare Corp. after Henry Chanin contracted hepatitis C at Desert Shadow Endoscopy Center, one of the clinics linked to the outbreak of the disease discovered after a 2008 investigation by the Southern Nevada Health District. That investigation linked the reuse of vials of the anesthetic propofol to the spread of the disease.
Thousands of Las Vegans were notified they should undergo testing for hepatitis, HIV and AIDS.
Robert Eglet, who represents Henry, and Will Kemp, who represents Lorraine, argued throughout the four-week district court trial that the jumbo-sized vials of propofol encouraged reuse, leading to contamination and infection.
They argued the 50-milliliter vials had no place in endoscopy centers, where a fraction of that amount is required for the routine procedures performed there.
The jury agreed, and on Wednesday found both companies liable for failure to warn and for breach of warranty. They awarded more than $5 million in compensatory damages. They also agreed that punitive damages were warranted, ultimately deciding during deliberations Friday that Teva Parenteral Medicines should pay $356 million and Baxter Healthcare Corp. should pay $144 million.
Eglet said $500 million is the largest amount for punitive damages ever to be awarded in Nevada.
Eglet, Kemp and the Chanins discussed the case Friday afternoon during a news conference at the law offices of Mainor Eglet Cottle.
“This case has always been about trying to get these drug companies to do the right thing and stop selling these jumbo-sized vials of propofol to these endoscopy centers where they know -- and they’ve known for over a decade -- that they’re going to multi-dose multiple patients out of them,” Eglet said.
Henry Chanin said he and his wife had initially been reluctant to pursue the lawsuit, but the seriousness of his ordeal prompted them to take action.
“If we didn’t come forward and we didn’t pursue some kind of action, we weren’t doing all we could to make sure that what happened to me doesn’t happen to anybody else,” he said.
Hepatitis C can lead to liver disease, including cirrhosis or liver cancer. Henry Chanin said his hepatitis was controlled after weeks of treatment similar to chemotherapy, which made the virus inactive. He said the treatments, which were grueling, reduced his stamina and have caused lingering joint pain.
There is a 5 percent chance the disease could again become active, meaning he could get sicker and could also infect his wife. The husband and wife both testified they had ceased having intimate relations after Henry contracted the disease.
Henry Chanin is the headmaster at The Meadows School founded by Carolyn Goodman, who testified on his behalf at the trial. The nonprofit private school in the northwest valley serves students from pre-kindergarten through 12th grade. Goodman is the wife of Las Vegas Mayor Oscar Goodman.
Eglet said that earlier this year he approached the drug companies with a proposed settlement of $1.7 million, but the offer was ignored.
“This was never about getting a giant sum of money, but it ended up that way because they forced us to go to trial,” he said. “And hopefully now they will hear what this Las Vegas jury had to say and do the right thing.”
Kemp said the drug companies knew about 148 cases of hepatitis linked to propofol before Henry Chanin underwent the colonoscopy and didn’t do anything to warn medical professionals.
“They gave no warning to doctors, gave no warning to nurses, and that’s why we have all these outbreaks (in) eight different countries, 11 different institutions around the world,” he said.
He said the verdict should send a message to Teva, which makes 400 other drugs and is the world’s largest generic drug manufacturer, that it needs to focus on drug safety.
“What this jury has done may be the most important thing any jury anywhere has ever done for drug safety in the history of the United States,” he said.
Chanin called trial lawyers the last set of checks and balances on consumer safety.
He said this case was evidence that government agencies don’t do enough to protect the average consumer.
“I think like many citizens, I look at frivolous lawsuits, I say we need reforms and so on and so forth,” he said. “Well, it’s a little different when you’re the victim.”
“There are probably multiple parties in the system who were at fault for something like this happening -- certainly, the medical professionals didn’t do the best job. But no clinic owners, no nurses, no doctors, are moving from city to city around the world causing these outbreaks. The one thing that these outbreaks have in common are these weapons of mass infection.”
In closing arguments, “weapons of mass infection” was a term Eglet used to describe the vials of propofol to the jury.
Teva spokeswoman Denise Bradley said in a statement released after the verdict Friday that the company is reviewing the judgment. The company acted responsibly, she said, adding that labels clearly state the drug is for single-patient use.
“Teva believes that the evidence clearly showed that if the plaintiff contracted hepatitis as alleged, it was because a properly labeled product was blatantly misused at the clinic in question,” Bradley said. “Teva believes that there are numerous grounds for appeal, and plans to contest the verdict vigorously.”
Jurors weren’t allowed to hear all the evidence in the case, she said.
Baxter spokeswoman Erin Gardiner echoed Bradley’s sentiments and said the company also was planning an appeal.
"This was a case of product misuse related to unsafe clinical practices as opposed to an issue with a widely used and clearly labeled product," she said via e-mail late Friday afternoon. "Jurors were not allowed to hear a number of compelling facts related to unsafe clinical practice at the root of the issue — such as the reuse of syringes on multiple patients and reusing clearly labeled single-dose vials multiple times. We expect this verdict will be successfully appealed."
Jury forewoman Celeste Williams, 34, said many of the jurors, including herself, wanted to award more than $500 million.
"It was difficult to assess an amount to make someone wake up and make a change," Williams said. She said some jurors feared an award of $1 billion might be appealed.
A higher amount was assigned to Teva because Baxter stopped distributing the drug in 2007, she said.
In arguments Thursday, Eglet had asked jurors to award more than $1 billion. He said the companies made a combined $13.5 billion in 2009 and argued that a substantial award was necessary to hit them hard enough they would change their ways.
He compared the companies’ profits to the annual salary of an average person, about $42,600, and asked jurors to rely on logic when calculating the punitive amount appropriate for companies with earnings in the billions.
Juror Alan Folak said he wanted Teva to pay more because it had more knowledge about the drug than Baxter. He said testimony indicated Baxter’s employees weren't as informed as Teva's.
"Baxter and Teva were like an unhappy married couple; they don't talk to each other," Folak said. "(Teva) knew, and all they had to say was, 'there's nothing wrong with our drug, you're just misusing it.'"
Juror Britney Burnett, 21, said she didn’t agree with the verdict. She said Baxter wasn’t responsible for failing to warn the public.
Burnett was one of two jurors Wednesday who said they disagreed with the awarding of punitive damages.
A Teva spokeswoman said earlier this week that jurors weren’t allowed to hear some important evidence in the case and that the company planned appeal.
The trial, which began with jury selection April 12, was heard by District Court Judge Jessie Walsh.
Thousands sued in the wake of the outbreak. The Chanins’ lawsuit was the first to be heard by a jury.
Eglet and Kemp represent numerous hepatitis C patients and their next case is set for trial in October in front of District Judge Ken Cory.
Kemp and Eglet said they didn’t expect a settlement with the drug companies – again, Teva and Baxter -- before the trial date.
Sun reporter Tiffany Gibson contributed to this report.