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Thursday, Oct. 6, 2011 | 8:17 p.m.
$20 million awarded in hepatitis C case
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KSNV coverage of $20.1 million compensatory damages verdict in hepatitis C case, Oct. 6, 2011.
Sun Topics
A Nevada jury found drug companies liable and awarded a total of $20.1 million Thursday to five plaintiffs who had accused drug companies of negligently distributing large vials of an anesthetic to Las Vegas clinics at the center of a 2008 hepatitis C outbreak.
The jury that heard seven weeks of testimony deliberated a full day Thursday before finding Teva Parenteral Medicines Inc., Baxter Healthcare Corp. and McKesson Corp. liable for injuries to endoscopy clinic patients Robert Sacks, Anthony Devito and Anne Arnold, and to spouses Donna Devito and James Arnold.
In addition to the $20.1 million in compensatory damages, the jury of five men and three women also found the firms liable for punitive damages in an amount to be determined following further deliberations. Clark County District Court Judge Ronald Israel scheduled work to begin Friday on that question.
With the penalty phase of the civil trial pending, none of the plaintiffs or their lawyers commented outside the courtroom.
But attorneys Robert Eglet and William Kemp are expected to seek a total of $600 million. Eglet mentioned that amount during jury selection in August.
Teva immediately promised an appeal.
A statement from company spokeswoman Denise Bradley blamed plaintiffs' injuries on clinic doctors and anesthesiologists who "blatantly ignored" product handling instructions "and also used unsanitary practices."
Another Clark County District Court jury last year found Teva and Baxter liable for damages in a similar case and awarded a combined $500 million in punitive damages to a Las Vegas private school principal and his wife. The man, Henry Chanin, claimed he contracted hepatitis C during a routine endoscopy procedure in 2006.
The companies have appealed that case to the Nevada Supreme Court.
Eglet and Kemp asked the jury in the current case to award $25 million to their plaintiffs: $6 million for Sacks, $5 million for Anthony Devito, $10 million for Anne Arnold, $2.5 million for James Arnold and $1.5 million for Donna Devito.
The jury awarded $5 million each to Sacks and Anthony Devito, $8.5 million to Anne Arnold, $900,000 for James Arnold and $700,000 for Donna Devito.
The lawyers accused the companies of putting corporate profits ahead of patient safety, and of recklessly distributing 50 milliliter vials of the powerful anesthetic propofol to clinics where 10 or 20 milliliter doses were commonly needed for outpatient colonoscopy procedures.
"They knew you could transfer blood-borne pathogens, hepatitis C and AIDS, if the vials were reused," Eglet told jurors as he repeatedly referred to "jumbo vials of infection" during closing arguments on Wednesday. "They knew this was going to happen."
Philip Hymanson, attorney for Baxter and McKesson, told jurors the propofol was manufactured properly and delivered properly, and that clinic doctors and anesthesiologists were at fault if they misused it. Hymanson said there was no proof that happened.
The companies maintain the vials were properly marked with instructions and warnings, and that jurors weren't allowed to hear that reusing syringes on multiple patients and not following proper sterilizing procedures could also have spread the incurable liver disease.
"This is about going after deep pockets, and pharmaceutical companies have deep pockets," Hymanson said.
The civil trials are the first of several now reaching trial phases in Las Vegas stemming from the 2008 hepatitis outbreak traced to colonoscopy clinics run by Dr. Dipak Desai. Eglet has been the attorney for plaintiffs in both cases to date.
Desai and his clinics reached undisclosed settlements with plaintiffs before trial and are no longer involved.
Separately, Desai and two nurses have been indicted on criminal charges including racketeering, insurance fraud and neglect of patients. They pleaded not guilty. Trial in Clark County District Court has been delayed until next year amid questions about Desai's competence to stand trial after several strokes.
Southern Nevada health officials advised about 50,000 patients who received endoscopy procedures at Desai clinics to be tested for hepatitis. At least nine and as many as 114 patients were infected with the disease.
Propofol is the same anesthetic at issue in the ongoing involuntary manslaughter trial in Los Angeles of Michael Jackson's former physician, Conrad Murray. Authorities say Jackson died in June 2009 of acute propofol intoxication combined with other sedatives administered by Murray in the singer's bedroom. Murray has pleaded not guilty.
Before everyone freaks out and comments on this, please read what I have to say.
I used to work for one of the few independent dialysis companies left in America, run by a respected, local physician. We used a drug on our dialysis patients, all of them, called Epogen. This drug helps kidney-deficient people make the blood cells they need to survive.
The drug company stopped selling the drug in vial sizes that an average patient, or two, needed. They only sold larger vials, marked as single-use, so we were throwing more than half of it away. Medicare and private insurance only pays for what is actually used, so the rest was loss to our company, and to our patients.
It was an expensive drug, and I was pissed. You either took the loss, or participated in fraud. We never participated in fraud.
We never re-used a vial, or a needle, but we paid a lot of money for drugs that you are probably drinking in your water, and paying for with your taxes.
So before you let the drug companies whine, ask a few questions.
This well probably be overturned on appeal, but either way this has already raised the price of drugs to pay the atterneys and judgements (if any).
The only reason they were sued was their pockets were deaper than the clinics. I'm not saying the victoms don't deserve justice, just who they bleed for it well end up being the rest us.
As a Registered Nurse, I used many a multi-dose vial in my career. If proper procedures are used (only use a syringe once and properly clean the top of the vial before using said syringe), you can use a multi-dose vial on a thousand different patients and no one will get anything.
I agree, most drug companies are profit driven, their stockholders demand it of them. Isn't that what a free market system is for, and we wouldn't want to place any restrictions on them to prevent them from maximizing their profits, now, would we?
But, the drug companies should not be fleeced because of the greed of a group of doctors violating every medical practice standard in the United States.
I do believe these cases will be overturned on appeal, and they will be appealed. Guess who gets to pay for all the lawyers?
It's a very polarizing issue. I actually sat in on a mock trial for this very case through a local research firm in vegas.
In my experience, comments on a trial are worse than useless unless one sat through it or has read the transcripts and seen all the evidence. What was the evidenced that the drug company or its reps knew or had reason to know that selling multi-dose vials to these "Doctors" would put patients at risk? Read gingerlee's post. That points out standard good practice. So what evidence was there than the drug company had knowledge that something other than standard good practices were being used? And, really, is it the duty of companies selling products into Nevada to not sell products if they have any reason to suspect that those products might not be used properly? We would all have to buy everything out of state and bring it in because no one will do business here if such a duty were declared to exist.
The more I think about this, the more it seems to be a dangerous precedent, which could lead to the devastation of our State.
Let's take some examples:
1. Nevada's major industry is gaming. Can our gaming companies be found -- after the fact -- to have breached a duty to gamblers if they did not stop them from gambling the money for food, utilities, rent, mortgage and the like? Do gaming companies owe customers a duty to protect them from injuring themselves? From injuring their families? From injuring their creditors? From injuring their employers?
2. Nevada's second major industry is mining. Do the mining companies owe a duty to make sure that people who use the minerals do so in a way which does not injure themselves or others? Are they liable for all that happens from their failure to actively prevent misuse by unsuspected misuse by others? Is, say, Barrick liable for all the injuries inflicted in a war waged by a dictator who financed that war by using gold that Barrick originally mined?
3. Let's take agriculture. Is a cattle rancher liable for food poisoning caused by the failure of a meat packer or butcher to process beef in a sanitary manner? How far down the chain of processing and preparation must the cattle rancher inspect -- and control to avoid liability? Would anyone with such a duty continue to raise cattle? The inspection costs alone would make ordinary hamburger several times more expensive than Kobe beef.
If the law requires that every supplier control the downstream use of products and services, how can there be commerce outside of massive companies that are fully integrated backwards and forwards so that all of the activities in their production and use -- including and the products and services and labor used in conjunction with each product or service? Are we to replace markets with monopolies?
The trial judge should overturn the verdict and order a new trial so that the jury has enough evidence of the proximate cause of the injuries to arrive at a true verdict.