Lawyer pursues more than $1 billion in hepatitis C case

A lawyer for a Henderson man infected with hepatitis C suggested Thursday that two drug companies should pay more than $1 billion for failing to take steps that could have prevented Southern Nevada's hepatitis C outbreak.

During the punitive damages stage of the first outbreak-related civil trial, Robert Eglet told the jury that Teva Parenteral Medicine and Baxter Healthcare Services should pay for continuing to make and sell large vials of the sedative propofol to endoscopy centers despite previous outbreaks being linked to the drug.

Such as award also would deter the companies and others from similar conduct in the future, Eglet said.

"This verdict has to be loud," he said, his voice climbing. "They have to be able to hear it. They have got to hear your verdict across the state. They have got to hear your verdict from the East Coast to the West Coast because they're not listening. ... Make them listen."

The jury deliberated for about 90 minutes before leaving for the day. Deliberations will continue this morning.

On Wednesday the jury found Teva and Baxter liable for the hepatitis C infection of Henry Chanin. He contracted the disease during a 2006 colonoscopy at the Desert Shadow Endoscopy Center, one of two Las Vegas clinics linked to the hepatitis outbreak.

Chanin, 62, and his wife, Lorraine, sued the companies on several product liability claims, including that the drug packaging did not include appropriate warnings against reusing vials between patients and that the 50-milliliter vials of propofol should not have been sold to endoscopy centers.

The large vials contained as much as five times the propofol necessary for typical endoscopic procedures, which tempted nurse anesthetists to reuse the vials instead of throwing away leftover sedative, their lawyers said.

Local health officials blamed the outbreak on nurse anesthetists reusing vials among patients after the vials had become contaminated by the reusing of syringes on patients who already had hepatitis C.

The jury awarded $3.25 million to Henry Chanin and $1.85 million to Lorraine Chanin in damages.

At Thursday's hearing, Will Kemp, who represents Lorraine Chanin, said the companies refused to improve the warnings on propofol despite multiple hepatitis outbreaks worldwide that were linked to reusing vials of the drug.

"The reason these defendants need to be punished is we had 148 cases over 10 years, and they didn't do anything," he said.

Kemp justified a large punitive award by pointing out that last year Teva made more than $8 billion in gross sales and Baxter made $5.4 billion. Simply taking a month's worth of revenue would equal $666 million from Teva and $453 million from Baxter, he said.

"We're not punishing homeless people here," he said. "We are punishing someone who makes $8 billion."

Such an amount would set a state record, Eglet said, and send a message to Teva, Baxter and other drug companies that they can't put profits above patient safety.

The companies knew the 50-milliliter vials of propofol were more likely to be reused between patients than the 10-milliliter vials, yet they didn't tell their sales representatives or medical workers that because they made more money on the larger vials, he said.

Drug company lawyer Mark Tully told the jury there was no need to send a message with punitive damages.

"You already sent a first very important message," he said. "You already told Teva and Baxter they have caused more than $5 million of damages in this case. We hear you."

Eglet compared Tully's plea to that of a serial car thief who only shows remorse after he has been caught. He said only a large punitive damages award would change the companies' practices and prevent future outbreaks such as the one in Southern Nevada.

"You need to send a message to Teva and Baxter that in this community, in our community, the safety of people is more important than the bottom line on their balance sheet," he said.

Contact reporter Brian Haynes at bhaynes@review journal.com or 702-383-0281.

Trending topics:

• endoscopy
• hepatitis C
• punitive damages
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Comments

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1. cupnzay May 7, 2010 | 3:42 p.m. Report Abuse

   I was a juror on this case and there was alot of info not released to public.
   
   
   First the reason why the drug co was sued was because the 50 ml and 100 ml bottle were labeled for hospitals. But then they were sold to endoscopy centers that only needed the 10 ml or 20 ml vials.
   
   The distributor was sued because they did market research and found out that people were double dipping in the bottles and reported to the drug co and the both said lets keep selling them!
   
   They submitted to the FDA that the smaller "enhanced safety" but then stopped making it!
   
   The $500,000,000 that was awarded in punitive was they amount both companys made of that 1 med.
   
   both these co are BILLION dollar co Teva mde 8 billion in 2009 and baxter made 5 billion in 2009.
   
   THIS DRUG HAS BEEN ON THE MARKET FOR 11 YEARS,,,
   
   Before the Las Vegas case there was over 15,000 previos reported cases of misuse and multidosing of this med!
   
   The Las Vegas case affected 50,000 people. and even after ours the was cases in Miami and Washington DC.
   
   Do you know that you have to take chemotherapy drugs to try and get rid of Hepatitis C?
   and that doesnt work for everyone and some people die?
   Do u know that Hep C is similar to HIV?
   IT CAN B TRANSMITTED THROUGH BODILY FLUID!

2. patrick May 7, 2010 | 1:30 p.m. Report Abuse

   heavyhitter:
   
   I agree with you that 1 trillion is too much.
   
   In fact, now that the judgement of 500 million has been rendered, I can even tell you that that, in my opinion, is too much.
   
   Obviously there will be a remittiture in this case, and I expect that the plaintiffs will have to take around 20 million or the verdict will be overturned.
   
   We shall see.

3. Kay.Love May 7, 2010 | 12:56 p.m. Report Abuse

   Patrick
   
   So you are saying that Teva knew that doctors would use the larger vials on multiple patients..
   
   So if they put a warning on it that says "if used on multiple patients, make sure and use a clean sterile needle"..
   
   Would that absolve them from any neglect because they spelled out that a needle should not be reintroduced into the vial??

4. gehrig May 7, 2010 | 12:47 p.m. Report Abuse

   seems to follow that aspirin should now only be sold in single dose packages. and mebbe only one to a customer at a time.
   
   then mebbe those pitchers of beer or large pizzas best be outlawed. soaking up the whole pitcher could get the chugger a d.u.i.. and an entire pizza could trigger major league heartburn.
   
   imagine if that hot coffee in the lap "loss" had been from some "biggie"/"jumbo" sized cup. sounds like that "victim" coulda' been awarded that mcdo's franchise.

5. patrick May 7, 2010 | 12:23 p.m. Report Abuse

   rg:
   
   Business will continue to operate so long as there is money to make. Whatever Teva's insurance company has to pay for Teva's negligence is a cost of doing business and IF Teva were to go out of business as a result of their own negligence in manufacturing a product that the market has decided is "unsafe" then, unless you have a problem with the market, this is in the best interests of the market.
   
   gta:
   
   I didn't leave off the part about "lawful" use, its not part of the analysis. The question is whether or not the product has a design defect or not. Including in that analysis is whether or not the manufacturer can reasonable foresee misuse or not. Obviously in the same way that driving a car at 130 miles an hour is "misuse" a vehicle manufacture can be liable for a manufacturing defect even when the product is used "illegally" if they do not take reasonable steps to mitigate against this foreseeable misuse.
   
   Yes, there is no doubt that the professionals in this case, misused the product. Yes, there is no doubt that the professionals in this case share responsibility and therefore liablity for the damages which resulted, but the fact that the professionals are one link in the chain, does not completely absolve the other negligent actors.

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